I 

: 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 

of the 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 an apartment or other real 

property may be subject to prosecution under the theft proviaionr of the 

new Penal Code, s 4 31.01 et req., V. T. P. C. There ia no question that 

in thi6 situation the actor could be prorecuted for innuance of a bad check 

under $32.41 of the Code, a violation of which is punishable’ae a Clasa C 

misdemeanor. The aeriourners of an offense under the theft provisions, 

on the other hand, can be as much as a second degree felony depending 

on the value of what is rtolen. 

Of the various theft provisions contained in the new Code,. the one 

most relextnt to your inquiry ia 5 31.04 which establisher and defines a 

relatively novel offense entitled “theft of rervice. ” In pertinent part 

0 31.04 provides: 

(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; 

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

In 5 31.01 (7) (D) “service” is defined so as to include “the supply of a 

motor vehicle or other property for use. ” Under 5 31.01 (6) (A) “property” 

includes “real property. ” Thus under 5 31.04 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 of theft of service. 

Traditionally the stealing of real property has not been classified 

as a theft offense. At common law the crime of theft and related offenses 

such as larceny, embezzlement, and false pretenses were designed to 

impose sanctions against the wrongful acquisition of property, but property 

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 and Scott, Criminal Law, pp. 633 and 665 (1972). 

As a result one who defrauded another of title to land or who walked out 

on his tavern bill was not guilty of theft. In order to plug the loopholes 

in the law of theft caused by the limited definition of property prevailing 

under the common law, legislatures in statea which adopted the common 

law were forced to enact a variety 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. 1551 and 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 of these scattered offenses into 0 31.04. a single comprehensive 

offense aimed at proscribing the acquisition of services without paying 

for them and entitled ‘!theft of service. ” In s 31.01 “service” is broadly 

defined so as to include almost. anything that is ordinarily provided for 

compensation but that was traditionally excluded from the crime of theft 

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 by hotels 

and boarding houses. Rather than being a conveyance of a nonfreehold 

p. 1675 
The 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, 

26 Vanderbilt 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 of housing 

pursuant to one of them 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, 0 31.04, p. 222 0970). Furthermore the committee indicated 

that the theft of service statute was intended to replace Art. 1553a of the 

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 or who 

shall gain occupancy without permission of the owner 

or his agent, or who shall give in payment for rental 

a worthless 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 30 days, or both. 

The commentary of the committee was before the Legislature when it 

enacted 5 31.04 substantially as propos,ed by the committee. Therefore 

it is an authoritative indication of what conduct the Legislature intended 

to be made criminal by the new theft of service offense. 53 TEX. JUR.2d. 

statutes, 0 174,~. 254. 

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

Under f 31.04, then, one who secures the use of real property 

by deception, threat, or false token is guilty of theft of rervice. The 

only remaining question is whether one who pays his apartment rent 

with a bad check has secured the use of the premises by deception, threat, 

or false token. 

It is a well-settled common law rule that, in the absence of express 

words to the contrary, possession of premises under a lease is not contingent upon the payment of rent. Bertrand v. Pate, 284 S. W. 2d 802 (Tex. 

Civ. App., Eastland 1955, no writ) and Shepherd v. Sorrells, 182 S. W. 

2d 1009 (Tex. Civ. App., Eastland 1944, no writ). The lessee does not 

forfeit his right to use 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 of the common law. Shepherd, 182 S. W. 2d at 1011. 

Under such a lease it cannot be said that the use of the 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 the common law rule and plainly makes use of the premises 

contingent upon the payment of rent. Under such an agreement it is 

understood by both parties that the use of the property is obtained only 

on condition that the rent ia. paid on time, and in our opinion if the lessee 

were intentionslly to pay his rent with a wixthless check, he would be 

securing the use of the premises by false token and could be prosecuted 

for theft of service under 5 31.04. 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 5 31.06 of the new 

Code establishes a presumption of guilty knowledge when services are 

secured by passing a worthless check. Of course this presumption is 

not conclusive on the question of intent since it remains a matter 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) 

of theft of service. When the tenant’s right to 

possession under a lease is expressly made 

contingent upon the payment of rent, the tenant 

is subject to prosecution for theft of service, if 

he knowingly pays his rent with a worthless check. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1678