Hon. Frank D. Mccown Opinion NO. s-40 

County Attorney 

Dallas County Re: The necessity that prior 

Dalhart, Texa% conviction% for passing 

"hot checks" preoede the 

commission of the offense 

oharged a% a felony under 

Dear sir: Article 567b, V.P.C. 

We have your request for an opinion whether, under 

Artiole 567b of the Penal Code 

"hot check%" for $10.00 each, 

, a person who ha% passed three 

and who ha% no prior oonvictions, can be tried and convioted on each of the first two 

check%, separately, and then be tried and convicted on a felony charge for the third check. 

Paragraphs two and three of Section 4 of Article 

567'b, Vernon's Penal Code, read a% followsr 

"If it be shown on the trial of a cm38 involving a vlolatlon of this Act in which the 

cheek, draft, or order given on any bank, per- 

%on, firm or oorporation, is less then Fifty 

Dollars ($50), that the defendant ha% been onoe 

before oonvloted of the %ame offense, he shall, 

on his aeoond ooaviotioa, be punished by confinement in the oounty j8il for not less than 

thirty (30) days nor more than tVo (2) years, 

a& by a fine not exceeding Two Thousand Dollars 

($2,000) l 

"If it be shown upon the trial of a base 

involving a violation of this Act where the 

amxmt of the oheek, draft, or order is less 

than Fifty Dollars ($50), that the ,defeudant 

ha% two (2) or more times before been convicted 

of the same offense, regardless of the amount 

of the oheOkd dr8Pt OP order lnvolwed In the 

first two (2) coaaviotions, upon the third or any 

subsequent conviction, the punishment shall be 

by eonflnement ia the penitentiary for not less 

than two (2) nor mor6? than tea (10) years, and 
--, 

Hon. Frank D. McCown, page 2 (S-40) 

b a fine not exceeding Five Thousand Dollars 

~~5,000) .” 

Our search 

struing Article 567b 

particular questloii. 

graphs two and three 

above, la similar to . 

of the authorities reveals no oa%e aonwhich has passed specifically upon your . . _ 

nowever, tne language used In paraof Section 4 of Article 567b, a% quoted 

the language of Artiolee 61, 62 8nd 63 

of the Penal Code, dealing with enhanced punishment for second 

and subsequent conviction% , and It must be presumed that the 

Legislature, in the enactment of Article 567b, intended the 

same construotion a% theretofore placed by the court% on Artlcles 61, 62, and 63. 

Article 61, dealing with second and subsequent oonvfotions of misdemeanors, read% as follow%: 

"If it be shown on the trial of a misdemeanor that the defendant has been once before 

convicted of the same offense, he shall on a 

second conviction receive double the punishment preeorlbed for such offense in ordi~y 

cases, and upon a third or any subsequent oonviction for the same offense, the punishment 

shall be increased 80 a% not to exceed four 

times the penalty in ordinary oa%e%.” 

Article 62, dealing with eubsequent aonviotion of a 

felony, read% a% follow%: 

"If it be shown on the trial of a felony 

lees than capital that the defendant has bean 

before convicted of the same offense, or one 

of the same nature, the punishment on such 

second or other subsequent conviction shall 

be the highest whloh is affixed to the commission of such offenses in ordinary case%." 

Article 63, dealing with 

felony, read% a% follow%: 

third oonvlotlon Of a 

"Whoever shall have been three times oonvloted of a felony less than capital &all on 

suoh third conviction be imprisoned for life 

in the penitentiary." 

Tb&ca%e% construing the enhanced punishment poviaions of Articles 61, 62 and 63 of the Penal Code oleuly hold 

that the second offense muat occur after the l oou%ed ha% been 
Hon. Frank D, McCown, page 3 (S-40) 

convicted of the first offense and the third offense must 

occur after the conviction of the second offense. Harrison __-- 

v. State, 145 Tex. Grim. 386, 168 S.W.2d 243 (1943). 

Judge Ramsey, in construing Article 1014 of the 

Penal Code of 1895, which article is now codified, unchanged, 

as Article 61, stated that the Article 

II . . 0 when construed with other provisions of the Penal Code and the Code of Criminal Procedure, is a reformatory statute, and 

does not warrant the cumulation of a number 

of cases occurring simultaneously, in order to 

add to the punishment, of the ca%e on trial, 

but contemplates an enhanced punishment for a 

party who, after one conviction, does not reform, but persists in committing other offenses 

of a like character." Muckenfuss v. State, 55 

Tex. Grim. 216, 217, 11~s.w.~ (1909). 

An Indictment seeking to charge prior convictions a% 

the basis for punishing a defendant as an habitual criminal 

must aver that each succeeding offense was committed after conviction of the preceding offense, Ellis v. State, 134 Tex. Crim. 

346, 115 S.W.2d 660 (1938), 12 Tex. Jur. 79b, Criminal Law, Sec. 

405. 

It is our opinion that in order to sustain a felony 

conviction under Article 567b, V.P.C, for giving a "hot check" 

in an amount less than $50.00, it is necessary that the accused 

be twice before convicted under the same Article; that the second 

offense be committed subsequent to the first conviction, and that 

the third offense be committed subsequent to the second conviction. 

l 

SUM M AR Y 

In order to sustain a felony conviction under Article 56'711, V.P.C, for 

the giving of a "hot check" in an amount 

less than $50.00, it must be alleged and 

proved that the accused has twice before 

been convicted under the same Article, 

that the second offense was committed subsequent to the first oonviotion, and that 
Hon. Frank D. &Sown, page 4 (S-40) 

the third offense was comnltwd subsequent to the second oonvlction. 

APPR0IED: 

Rudy G. Rioe 

St&e Affair8 Dlvieion 

Willie E. Oreshem 

Reviewer 

Yonrci very truly, 

JOHN BEN SREPPERD 

Attorney General 

Robert s. Trotti 

First Assistant 

Assietant 

John Ben Shepperd 

Attorney Qeneral 

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