### Hon. Frank D. Mccown OpinionNO. s-40

County Attorney Dallas County Re: The necessity that prior Dalhart, Texa% conviction%for passing "hot checks" preoede the commissionof the offense oharged a% a felony under 

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

We have your request for an opinionwhether, 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 conviotedon each of the first two check%, separately,and then be tried and convicted on 

### a felony charge for the third check.

Paragraphstwo 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 defendantha% been onoe before oonvloted of the %ame offense,he shall, on his aeoond ooaviotioa, be punishedby confinement in the oounty j8il for not less than thirty (30) days nor more than tVo (2) years, a& by a fine not exceedingTwo ThousandDollars ($2,000) l "If it be shown upon the trial of a base involvinga 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, regardlessof the amount of the oheOkd dr8Pt OP order lnvolwed In the first two (2) coaaviotions, upon the third or any subsequentconviction,the punishmentshall be by eonflnement ia the penitentiaryfor not less than two (2) nor mor6?than tea (10) years, and--,

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

b a fine not exceedingFive ThousandDollars ~~5,000).” Our search struingArticle 567b particularquestloii. graphs two and three above, la similar to

. of the authoritiesreveals no oa%e aonwhich has passed specifically upon your

. . _ nowever, tne languageused In paraof Section 4 of Article 567b, a% quoted the language of Artiolee 61, 62 8nd 63 of the Penal Code, dealing with enhanced punishmentfor second and subsequentconviction% , and It must be presumed that the Legislature,in the enactment of Article 567b, intendedthe same construotion

a% theretofore

placed by the court% on Artlcles 61, 62, and 63.

Article 61, dealingwith second and subsequentoonvfotions of misdemeanors, read% as follow%: "If it be shown on the trial of a misdemeanor that the defendanthas been once before convicted of the same offense,he shall on a second conviction

### receive double the punishment preeorlbedfor such offense in ordi~y cases, and upon a third or any subsequentoonviction for the same offense, the punishment shall be increased80 a% not to exceed four times the penalty in ordinary oa%e%. ” Article 62, dealing with eubsequentaonviotionof a felony, read% a% follow%:

"If it be shown on the trial of a felony lees than capital that the defendanthas bean before convicted of the same offense, or one of the same nature, the punishmenton such second or other subsequentconviction 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 oonvlotlonOf a

"Whoevershall have been three times oonvloted of 

### a felony less than capital &all on suoh third convictionbe imprisonedfor life in the penitentiary." Tb&ca%e% construingthe enhanced punishmentpoviaions of Articles 61, 62 and 63 of the Penal Code oleuly hold that the second offensemuat occur after the loou%ed ha% beenHon. Frank D, McCown, page 3 (S-40)

convicted of the first offense and the third offensemust occur after the convictionof the second offense. Harrison __-- v. State, 145 Tex. Grim. 386, 168 S.W.2d 243 (1943).

Judge Ramsey, in construingArticle 1014 of the Penal Code of 1895, which article is now codified,unchanged, as Article 61, stated that the Article

II

. . 0 when construedwith other provisions of the Penal Code and the Code of Criminal Procedure, is a reformatorystatute,and does not warrant the cumulationof a number of cases occurring simultaneously, in order to add to the punishment,of the ca%e on trial, but contemplatesan enhanced punishmentfor a party who, after one conviction, does not reform, but persists in committingother offenses of a like character." Muckenfussv. State, 55 Tex. Grim. 216, 217, 11~s.w.~ (1909).
An Indictmentseeking to charge prior convictionsa% the basis for punishinga defendantas an habitual criminal must aver that each succeedingoffensewas committedafter conviction of the precedingoffense, 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 convictionunder 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 convictedunder the same Article; that the second offense be committed subsequentto the first conviction,and that the third offense be committed subsequentto the second conviction.

l

SUM MA R 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 accusedhas twice before been convictedunder the same Article, that the second offense was committed subsequent to the first oonviotion,and thatHon. Frank D. &Sown, page 4 (S-40)

the third offensewas comnltwd subsequent to the second oonvlction.
APPR0IED: 

### RudyG. 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 wMK/rt