October 30, 1987 

Honorable John B. Holmes, Jr. 

Harris County District Attorney 

201 Fannin, Suite 200 

Houston, Texas 77002 

Opinion No. JM-820 

Re: Whether a conviction 

for the offense of issuing a bad check will bar 

a prosecution for theft 

where both offenses arise 

out of the same transaction 

Dear Mr. Holmes: 

You ask whether the double jeopardy provisions of the 

state and federal constitutions will bar the prosecution 

of a defendant for theft of property fraudulently obtained 

by the passing of a worthless check where the defendant 

has already been prosecuted for the class C offense of 

issuance of a bad check. Under the scenario you provide 

both offenses grow out of the same transaction. 

The United . States Constitution and the Texas 

Constitution prohibit any person from twice being placed 

in jeopardy for the same offense. U.S. Const., amend. V; 

Texas Const. art. 1, 514. 

Section 32.41 of the Penal Code makes the issuance of 

a bad check a class C misdemeanor. It provides in 

pertinent part: 

(a) A person commits an offense if he 

issues or passes a check or similar sight 

order for the payment of money knowing that 

the issuer does not have sufficient funds in 

or on deposit with the bank or other drawee 

for the payment in full of the check or 

order as well as all other checks or orders 

outstanding at the time of issuance. 

Article 32.41 was amended in 1987 by adding 

subsection (g) to read as follows: 

p. 3895 
Honorable John B. Holmes, Jr. - Page 2 (JM-820) 

An offense under this section is not a 

lesser included offense of an offense under 

section 31.03 or 31.04 of this code. 

(Emphasis added.) 

Penal Code 932.41(g); Acts 1987, 70th beg., ch. 687, at 

5091. 

Under article 31.03 of the Penal Code the offense of 

theft is defined, as follows: 

(a) A person commits an offense if he 

unlawfully appropriates property with intent 

to deprive the owner of property. 

(b) Appropriation of property is unlawful 

if: 

(1) it is without the owner's effective 

consent: 

(2) the property is stolen and the actor 

appropriates the property knowing it was 

stolen by another: or 

(3) property in the custody of any law 

enforcement agency was explicitly 

represented by any law enforcement agent to 

the actor as being stolen and the actor 

appropriates the property believing it was 

stolen by another. 

A person commits the offense of theft of service 

under article 31.04 of the Penal Code when the 

elements are present: 

following 

(a) A person commits theft of service if, 

with intent to avoid payment for service 

that he knows is provided only for compensation: 

(1) he intentionally or knowingly secures 

performance of the service by deception, 

threat, or false token; 

(2) having control over the disposition 

of services of another to which he is not 

entitled, he intentionally or knowingly 

diverts the other's services to his own 

p. 3896 
. 

Honorable John B. Holmes, Jr. - Page 3 (JM-820) 

d- 

- 

benefit or to the benefit of another not 

entitled to them; or 

(3) having control of personal property 

under a written rental agreement, he holds 

the property beyond the expiration of the 

rental period without the effective consent 

of the owner of the property, thereby 

depriving the owner of the property of its 

use in further rentals. 

The punishment range under articles 31.03 and 31.04 

is from a class C misdemeanor to a 2nd degree felony. 

The Court of Criminal Appeals, in the recent case of 

Mav~v. State, 726 S.W.2d 573 (1987), held that a defendant 

convicted of involuntary manslaughter could not be 

prosecuted for driving while intoxicated where both 

offenses arose out of the same automobile accident. After 

reviewing numerous United States. Supreme Court and Court 

of Criminal Appeals decisions and noting that the double 

jeopardy prohibition may preclude subsequent prosecution, 

even though each offense may include elements which the 

other did not, the court stated: 

Turning to the instant cause, we first 

note that both offenses are alleged to have 

been committed June 12, 1983. The 

indictment for involuntary manslaughter 

alleged in part that in Dallas County 

appellant did: 

'then and there by accident and mistake 

when oneratina a motor vehicle while 

intoxicated. and bv reason of such intox-. 

ication, [emphasis in original] cause the 

death of [a named individual], by then 

and there driving her automobile across a 

center median [emphasis in original] and 

colliding with a vehicle occupied by 

[named individual], and thereby cause the 

death of said individual.* 

The information for DWI alleged in pertinent 

part that appellant: 

'was intoxicated. and under the influence 

of intoxicatina liouor. and while so 

intoxicated and under the influence of 

p. 3891 
Honorable John B. Holmes, Jr. - Page 4 (~~-829) . 

i 

intoxicatina liouor, [emphasis in 

original] did then Andy there unlawfully 

drive and operate a motor vehicle upon a 

public street and hiahway, [emphasis in 

original] in Dallas County, Texas.' 

Facially allegations of the greater offense 

of involuntary manslaughter required proof 

of the lesser offense, i.e., that appellant 

operated her motor vehicle upon a public 

roadway while intoxicated and collided with 

another vehicle after driving across a 

center median. The record clearly shows 

that the State will rely on and seek to 

prove the DWI case the same act of driving 

while intoxicated on public roadway as 'the 

reckless act necessary to prove [involuntary] manslaughter.' Vitale, sunra at 421, 

100 S.Ct. at 2267. 

Thus the record, including charging 

instruments, judgment of conviction for 

involuntary manslaughter and habeas testimony, demonstrates that annellant has been 

convicted of a crime havina several elements 

included in it and is now facina a trial for 

a lesser offense consistina solelv of one or 

more of the elements of the crime for which 

she has alreadv been convicted. In this 

Court the State practically concedes the 

point by relying on the fact that the 

judgment in State v. Padilla, 101 N.M. 58, 

678 P.2d 686, 101 N.M. 82, 678 P.2d 710 

(1984), was affirmed by an equally divided 

Supreme Court, Fuaate v. New Mexico, 470 

U.S. 904, 105 s.ct. 1858, 04 L.Ed.2d 777 

reh. den. 471 U.S. 1112, 105 S.Ct. 2349, 85 

L.Ed.2d 865 (1985). (Emphasis added.) 

726 S.W.2d at 576-577. 

?, 

Prior to the present Penal Code, the offense of 

passing a check without sufficient funds was the only 

statutory offense involving worthless checks. The prohibited conduct was set forth in article 567b of the Penal 

Code (1939) (repealed). The current Penal Code (1974) 

allows prosecution under the theft statutes, section 31.03 

(general theft) and section 31.04 (theft of services). In 

addition, section 32.41 makes the issuance of a bad check 

-, 

I 

p. 3898 
Honorable John B. Holmes, Jr. - Page 5 (m-820) 

a class C misdemeanor. The Practice Commentary following 

section 32.41 noted, in pertinent part: 

This section expands prior law in the bad 

check area. Underlying this provision is 

the belief that the issuance or passing of a 

known bad check is, in itself, not only 

harmful to the recipient but also injurious 

to the community at large and is, therefore, 

a proper subject for criminal sanction without regard to the purpose for which the 

check was givon. For example, even if the 

immediate recipient gives up nothing in 

return for the check, and, therefore, is not 

defrauded in the strict sense of that term, 

he may further negotiate the check, or 

deposit it and draw against it. This possibility places him in a precarious position 

and creates a threat of harm to the general 

public. Another important function of ~the 

provisiqn is the encouragement of prompt 

payment of dishonored checks. 

In reviewing the elements of theft and the issuance 

of a bad check the Court of Criminal Appeals ' 

Christiansen v. State, 575 S.W.2d 42 (1979), in an appeiy 

from a theft conviction arising out of the passing of bad 

checks in the amount of $241.80~in exchange for four money 

orders, stated: 

The record does reflect that appellant 

properly requested a charge on the lesser 

included offense of issuance of a bad check 

under Sec. 32.41, sunra. The key distinction between the offense of theft under 

V.T.C.A. Penal Code, sec. 31.03, and the 

offense of issuance of a bad check under 

V.T.C.A. Penal Code, Sec. 32.41~, is whether 

the defendant in fact receives any property. 

Receipt of property and proof of its value 

are critical elements in the offense of 

theft. They are, however, not required to 

prove issuance of a bad check. 

575 S.W.2d at 44. 

The court in Christiansen did, however, go on to 

state, "[a]lthough issuance of a bad check, a class C 

misdemeanor, may under some circumstances be a lesser 

p. 3899 
Honorable John B. Holmes, Jr. - Page 6 (m-829) 

included offense 

evidence before us 

have submitted the 

& at 44-45. 

of theft, there is nothing in the 

to have required the trial court to - 

charge on the lesser included offense." 

In a more recent opinion, WcClain v. State, 687 

S.W.2d 350 (1985), the Court of Criminal Appeals overruled 

previous holdings of the court that participation in the 

initial acquisition was an essential element of the 

offense of theft. The court concluded that, under the 

present Penal Code, there was no distinction in the 

essential elements of the offenses of theft and receiving 

and concealing stolen property. The court stated that: 

The error of w [633 S.W.2d 885, Tex . 

Crim. App., 19821 is precipitated by its 

focus on the 'manner of acquisition' of 

personal property, a focus the Legislature 

removed entirely from the theft statute in 

the 1974 penal code, then further refined in 

the 1975 legislative session. Just as it 

has been in the past recognitied that the 

actor's intent to 'benefit himself 

anotherr or to 'withhold the prope$ 

permanently' are not essential to commission 

of a theft, so too has it now been 

acknowledged that the 'manner of acguisition' is inconsequential to the evil of a 

theft: the gravamen of theft is in 

deDriVino the true owner of the use, 

benefit. eniovment or value of his vrovertv, 

[emphasis in original] without his consent. 

Thus, the varying misleading emphases on 

aspects of acquisitive conduct proscribed 

under former penal codes were sifted out by 

the new, and a single offense was distilled 

from the common elements contained in each: 

clearlv. if one exercises control over 

proDertv knowina it is without the owner's 

consent. and intendina to devrive the owner 

f it, it matters not 'how' 

zhe vroDertv 

the actor a t 

[emphasis added] whether ge 

intended to' benefit himself or another, 

intended 'permanently' to deprive the owner, 

etc. 

p. 3900 
Honorable John B. Holmes, Jr. - Page 7 (m-820) 

. * . . 

Section 31.03(b)(l) and (2) simply do not 

provide the 'nature of the forbidden 

conduct;' instead, they are both only ‘circumstances surroundinq [emphasis in 

oriainall the conduct.# which in no wav constitute - 'acts or . omissions' of- the 

defendant. It follows that these provisions 

have evidentiary import only in terms of 

establishing the \unlawfulness' of the 

appropriation, and the defendant is not 

entitled to have them expressed in the 

State's charging instrument as a matter of 

'form' under Thomas v. State, 621 S.W.2d 158 

(Tex. Cr. App. 1981) (Opinion on state's 

motion for rehearing), much less substance. 

687 S.W. 2d at 353-55. 

While the Legislature by its amendment to article 

32.41 was probably expressing the intent that there be no 

bar to the imposition of multiple punishments under that 

statute and the appropriate theft statute, we believe the 

crucial test in determining whether jeopardy attaches 

under the state and federal constitutions requires us to 

look at the elements of the respective offenses. Unlike 

the defendant in m, a defendant convicted for issuance 

of a bad check has not been convicted of a crime having 

any of the elements of the offense of theft. WcClain made 

it clear that it "matters not" how the accused acquired 

the property in a theft case. On the other hand, the 

issuance or passing of a known bad check is the gravamen 

of the offense under section 32.41. 

It is our opinion that the courts will hold that the 

trial of an accused for the offense of issuance of a bad 

check under section 32.41 of the Penal Code will not serve 

as a bar under the double jeopardy provisions of the state 

and federal constitutions to a prosecution for theft 

(under section 31.03 or 31.04 of the Penal Code) growing 

out of the same transaction. 

SUMMARY 

The trial of an accused for the offense 

of issuance of a bad check under section 

32.41 of the Penal Code will not serve as a 

bar under the double jeopardy provisions of 

p. 3901 
Honorable John B. Holmes, Jr. - Page 8 (JH-820) 

the state and federal constitutions to a 

prosecution for theft (under sections 31.03 

or 31.04 of the Penal Code) growing out of 

the same transaction. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3902