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# TREA~TORNEY GENERAL OFTEXAS Aumrmr. -CI 78711

July 25, 1974

The Honorable Tim Curry Criminal Dirtrict Attorney Tarrant County Courthoure Fort Worth. Texas 76102 Opinion No. H- 356 Re: Whether theft provisions ofthe new Penal Code are applicable to situation where worthlear check ir given for apartment rental, etc. Dear Mr. Curry:

You ask whether and in what circumrtancer a perron who given a worthless check in payment for rental of anapartment or other real property may be subject toprosecution under thetheft proviaionr ofthe new Penal Code, s431.01et req., V. T. P. C. There ia noquestion that in thi6 situation the actor could be prorecuted for innuance ofa bad check under $32.41 ofthe Code, aviolation ofwhich is punishable’ae a Clasa C misdemeanor. The aeriourners ofan offense under the theft provisions, on the other hand, can be as much as a second degree felony depending on the value ofwhat is rtolen.

Of the various theft provisions contained in the new Code,. the one most relextnt to your inquiry ia 531.04 which establisher and defines a relatively novel offense entitled “theft of rervice. ” In pertinent part 031.04 provides: (a) A person commits theft of service if, with

intent toavoid payment for service that he knows is provided only for compensation: (1)he intentionally or knowingly secures performance ofthe service by deception, threat or false token;

p. 1674The Honorable Tim Curry page 2 (H-356)

In 531.01 (7)(D) “service” is defined so as to include “the supply ofa motor vehicle or other property for use. ” Under 531.01 (6) (A) “property” includes “real property. ” Thus under 531.04 and the definitions accompanying it the supply of real property for use is considered a service, and one who secures performance of such a service by deception, threat, or false token is guilty oftheft of service.

Traditionally the stealing of real property has notbeen classified as atheft offense. At common law the crime oftheft and related offenses such as larceny, embezzlement, andfalse pretenses were designed to impose sanctions against the wrongful acquisition ofproperty, butproperty was narrowly defined so that only tangible personal property and money were included within its scope. Real property, labor, and services were not covered. LaFave andScott, Criminal Law, pp. 633and 665 (1972). As a result one whodefrauded another of title toland or who walked out onhis tavern bill was not guilty oftheft. In order to plug the loopholes in the law oftheft caused by the limited definition ofproperty prevailing under the common law, legislatures in statea which adopted the common law were forced to enact avariety of scattered offenses covering the wrongful procurement of specific services and other things of value, Texas was no exception in this regard. See, e.g., Arts. 9780, 1137e, 1137e-1, 1137g. 1545. 1551and 1553a, Texas Penal Code (1925). See generally LaFave and Scott, supra, pp. 618-678.

When it enacted the new Penal Code, the 63rd Legislature consolidated most ofthese scattered offenses into 031.04. a single comprehensive offense aimed at proscribing the acquisition ofservices without paying for them and entitled ‘!theft of service. ” In s31.01“service” is broadly defined so as to include almost. anything that is ordinarily provided for compensation butthatwas traditionally excluded from the crime oftheft because it was not classified as personal property.

It has increasingly been recognized that one who rents property to another for housing is providing a service not unlike that provided byhotels and boarding houses. Rather than being a conveyance ofa nonfreehold

p. 1675The Honorable Tim Curry page 3 (H-356)

estate, a modern lease agreement, especially in the urban residential context, more nearly resembles a contract in which housing is given in exchange for rent. Developments in Contemporary Lsndlord-Tenant Law, 26Vanderbilt L. Rev. 689 (1973). The State Bar.Committee which drafted and proposed the new Penal Code apparently recognized that leases are often very similar to service contracts and accordingly concluded that it would be appropriate to proscribe the wrongful acquisition ofhousing pursuant to one ofthem under the theft of service offense established by i 31.04.In its comments on §31.04 the committee stressed a broad definition of service and specifically noted that the rental of property was to be included within it. State Bar Committee, Texas Proposed Penal Code. Final Draft, 031.04, p. 222 0970). Furthermore the committee indicated that the theft of service statute was intended to replace Art. 1553a ofthe old Penal Code which made it unlawful to obtain housing by trick or fraud as follower: Section 1. Every person who shall obtain

occupancy of any house, duplex, or apartment by means of fraud, trick, deception, false or fraudulent representationa, statement or pretense orwho shall gain occupancy without permission of the owner or his agent, or who shall give in payment for rental aworthless check or who shall stop payment on a check for rent then due and not in controversy shall be guilty of a misdemeanor and shall be fined not exceeding $200.00, or be imprisoned in the county jail not exceeding 30days, or both. The commentary ofthe committee was before the Legislature when it enacted 531.04 substantially as propos,ed by the committee. Therefore it is anauthoritative indication ofwhat conduct the Legislature intended to be made criminal by the new theft of service offense. 53TEX. JUR.2d. statutes, 0 174,~. 254.

p. 1676The Honorable Tim **Curry page**  **4 (H-356)** 

Under f31.04, then, one who secures the use ofreal property by deception, threat, or false token is guilty oftheft ofrervice. The only remaining question is whether one who pays his apartment rent with a bad **check** has secured the use ofthe premises bydeception, threat, or false token.

It is awell-settled common law rule that, in theabsence of express words to the contrary, possession of premises under **a** lease is not contingent upon the payment of rent. Bertrand v. Pate, 284S.W. 2d 802 (Tex. Civ. App., Eastland 1955, nowrit) and Shepherd v. Sorrells, 182S.W. 2d 1009 (Tex. Civ. App., Eastland 1944, nowrit). The lessee does not forfeit his right touse the premises by failing to pay rent and cannot be ejected until there has been a formal demand for payment made in accordance with the strict rules ofthe common law. Shepherd, 182S.W. 2dat 1011. Under such alease it cannot be said that the use ofthe property is secured by the payment **of** rent, and therefore the lessee could not **be** prosecuted for theft of service if he intentionally paid the rent with a worthless check.

But modern leasing arrangements often contain express language that changes thecommon law rule and plainly makes **use** ofthe premises contingent uponthe payment of rent. Under such anagreement it is understood by both parties that the use of the property is obtained only on condition that the rent ia.paid on time, andin our opinion ifthe lessee **were** intentionslly topayhis rent with awixthless check, he would be securing the use ofthepremises **by** false token and could be prosecuted for theft of **service** under 531.04. Thus under many modern leases one who knowingly pays his rent with a worthless check runs the risk of. prosecution for theft of service. In this regard 531.06ofthe new Code establishes apresumption of guilty knowledge when services are secured by passing aworthless check. Of **course** this presumption is not conclusive onthequestion of intent since it remains amatter to be determined by the**jury.** Section 2.05. V.T. P. C. SUMMARY Under $31.04 one who secures the use of rental property by deception, threat, or false token is guilty

p. 1677; The Honorable Tim Curry page 5 (H-356)

oftheft of service. When the tenant’s right to possession under a lease is expressly made contingent upon the payment of rent, thetenant is subject to prosecution for theft of service, if he knowingly pays his rent with aworthless check. Very truly yours,

Attorney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

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