Hon. Dan W. Jackson

Criminal DistriatAttorney Houston, T e x * 8

htt'nr Palmer Hutoheson, Jr.

Daar Sir: Opinion No. O-2334 Ret IO the endorser ever liable on a hot check tiderArt. 667b, Seotions 1, 2 and 3 ofthe,Penal Code? And related questions.

Your recent request for an opinion of this deprrtmnt on the questions a8 are herein statedhas been received.

Wa quote the questions presented in your inquiryLU follows:

"Under 4x%, 567b, Sections 1, 2 and 3, is the endorser
ever liable? If so, is this liability limited to oaseswhere the endorser,

oan be shorn to have had a part iuthe plan to pass the oheok, or may it extend to oaseswhere no suoh proof 08x1 be made, butwhere the check is not paid on presentation and is nwee paid, up to the time of trialY In other words, does the presentation of the check for payment, and non-payment of it, oonstitutsprjma facie evidence in the aam way that it does against one who 'draw8or gives* the check?"

"Wnen a check, ðer given simultaneouslywith a receipt of themerchandise or other things for which it is issued, or given at a later date in payment for such things, is datedwith
a date subsequentto the date on which it is aotually given and where this fact is understoodby %oth parties, isthe giver of the oheck criminally liable under Mt. 567b, if the check is later returned because of insufficientfunds, or other similarreason?"
Seations 1, 2 and 3 of Art, 567b of the Penal Coda reads as followssRon, Dan We Jackson,page 2 (O-2334)

"4x-t.567b3. OBTAIBING !dOKKY, GOODS, ETC., WITR IL TEPl'~DEFRAUD.BYGNINGORDR4RXRG

Section lo It shall be unlawful for any person,with intent to defraud, to obtain any money, goods, servioe, labor, or other thing of value by giving or drawing any cheek,draft, or order upon any bwk; pereon, firm or corporation,if sv.qh @arson does not, at the time said cheek, drafh,.ororder is 80 draar, have sufficient fundswith such bank, person, firm or corporation to pay such oheok, draft, or ordsr, and all other oheoks, drafts, or orders upon said funds outstanding at the time such aheok, draft, or orderma8 given or dram; provided that if suoh oheok,draft, or order is not paid upon presentation,the nonpayment of 8ama shall be prima faoia evidence that such person giving or drawing snah check,draft, or order had iasuffioient funds with the dranae to pay same at the time the said oheok, draft, or order ma8 given or dram and that said person gave or drew such oheok, draft or order with intent to defrauds and provided further that proof of the dapoarit of said aheok, draft, or order with a bank for colleotionin the ordinary ohanne of trade and the return of said check, draft, or order unpid to the person mahing such deposit shall%a prima facie evidence of presentationto, and nonpayment of said ahsok, draft, or order by, the l%nk, person, firm,
or oorporationupon whom it nas drawn8 and provided further that where suah ohe&, draf’t, or order has twen pmtestsd,the notioe of protest thereon shallbe admissi%le as proof of presentationand nonpaymentand shallbe prima facie evidence that said obeok,draf't,
or orderwas presented to the %ank, person, firm or corporationupon whioh itwas drawn andwas not paid.

"GIVING ORDRMIm CHECK, DRMTOR ORDERIIITROUTSUFFICIEMT FUND6

sea. 2, It shall be unlawful for any person,with intent to defraud, to pay for any goods, servioe, labor,
or other thing of value, theretoforereceived,by giving or drawing any check,draft, or order upon any bank, person, firm, or corporation, if suoh person doesr not, at the time said aheok, draft, or order is so given or drawn, have sufficient funds 6th such bank, pereon, firm, or corporationto pay suoh check,draft, or order,- -

Hon. Dan W. Jaokson,page 3 (O-2334)

and all other checks,drafts, or orders upon said funds outstanding at the time such oheok, draft, or order is notpaid upon presentation,the nonpayment of same shall be prima facie evidence that such prson giving or drawing such check, draft, or order had insufficientfunds with the drams to pay sme at the time the check,draft, or order 1~8 given or dram and that said person gave such oheok, draft
or order with intent to defraud3 and provided further that proof of the de&sit of said check, draft or orderwith a bank for collection in the ordinaryohan4lC3lS of trade and the return of said check, draft, or order unpaid to the personmaking such deposit shall be prima facie evidence of presentationto, and nonpayment of said check, draft, or order by, the bank, person, firm, or corporationupon whom it uas dram; and provided further that where such check, draft, or order has been protested, the notice of protest thereof shall be admissible as proof of presentatiqu and nonpayment and shallbe prima facie evidence that said aheck, draft, or order was presented tothe bank, person, firm or corporationupon tiich it was dram and was not paid.

"POSSESSIONOF PWSONAL PROPERTY SUBJECT TO LIEN, OBTAINED BY CHECK, DPAFT OR ORDERAGAINST INSUF'FICIEN'I FUNDS

sec. 3. It shallbe unlawful for any person,with intent to defraud, to secure or retain possession of any personal property,to which a lien has attached,bythe drawing or giving of any check,draft, or order upon any bank, person, firm or corporation,if suchperson does not, at the time said check, draft, or order is so given or drawn, have suffioient funds with such bank,person, fim, ok corporation to pay such check, draft, or order, and all other checks, drafts, or orders upon said funds outstandingat the time such check,draft, or order so given or dram; providedthat if such check, draft, or order is not paidupon presentation, the nonpayment of aame shallbe prima facie evidence that suchperson giving or drawing such check,draft, or order hadi;iinsufficie&fundawith the drawee to pay same at the time the said cheek, draft, or order was given or dram and that said peison gave such check, draft,or orderwith intent to defrauds and provided further that proof of deposit of said ohsok, draft, or order with a tank for collection in the ordinary channelsof trade and the return of said check,draft, or order unpaid to the personmaking such deposit shall be prima facie proof of presentationto, and nonpayment of said check,draft, or order by, the kank, person,firm, or corporationupon which itwas drawn3Ron. Dan W. Jackson, page 4 (0-23;4)

and provided further thatwhere such check,draft
or order has been protested,the notice of protest thereof shallbe admissible **as** proof of presentation and nonpayment end shallbe prima facie evidence that said check, draft, or order was premsnted to the bank,person, firm, or oorporatidnupon which itwas dram and was not paid; and provided further that the removal of such personalproperty from the premises upon which it was located at the time such check, draft, or order was drawn or given, shallbe prima facie evidenoe that poseession of such propertywae retained or securedbythe giving or drawing of said check, draft, or order."

Nith reference to subdivision4, Art. 1646, of the Penal Code,
we quote frcss

Tax. Jur.,vol. 39, p.p. 1076, 1076, as follows~

"8 26. CBECKS DRAWN BY PERSONS OTHER THAN 4CCtJSED-- INDORSERS...While a convictionwill not ordinarily be sustai&d where the checkwas draw by some person other than the accused, it is not neoessarythatthe oheck be drawn or signed by the accused if he had guiltyknowledge of itslrorthless character, It has been saidthat the statute, althoughmaking no.spefioio rcferenoeto an indorser, is broad enough to cover an indorser if he eas a party tothe fraud by connivance, agreement or conspiraoy. Rowever thismay be, it has been held that an indorserwho stated in good faith that the cheek was good couldnot bs convictedunder the statutewhere, on learning that the paperwas worthless, he deposited sufficient funds in the bank to meet it before it would be presented in the ordinary course of bu5inas.s~"

JAMESva STATE, 257 S.We 866; MOORE vo STATE, 219 S.ll.1097; D4wBoNV* STATE, 165 S.W. 675.

In answer to your first question,you arc respeotfullyadvised that it is the opinion of this departmentthat the endorser is criminally liable only in those oaseswhere he was a party to the fraud by connivance, agreement or conspiracyand where the endorser can bs showo to have had a part inthe plan to pass the check, draft, or order so dram, upon any bank, person, firm or corporation.

In the case of LLOYDv. STATE, 266 S.W. 765, itwas held that a party issuing a checkunder an agreementnot to present the seme for payment, where **no** more representationswere made than implied by deliveryHon. Dan W. 

### Jaokron, page 5 (O-2334)

of the check and the request that its presentationsbe delayed and that there muld be no funds in the bank until that date, did not oanstituteswindling,underVernon's Annotated Penal Code, 1916, Art. 1422, Subdivision4, as to obtainingpropertyupon giving e. o%ck without reason to believe that it would be paid when presented.

Itwill be noted that Art. 567b, supra, speoificallyprovides that --

11

. it shall ba unlawful for any personwith intent to d&&d

. , . by giving or drawing any aheak,draft or order upon my bank, person, firm, or corporation, if such person does not at the time said ohaok, draft, or order is
so dram have suffiaientfunds with suchbank, person, firm,
or corporationto pay such chsok, draft or order, and all other checks,drafts or orders upon said funds outstanding at the time suoh ohsok, draft or orderwas so given or dram

. . . "

When any person gives a "post-dated" oheok it is evident that suoh person does not have sufficientfunds on depositwith the bank, firm, parson, association **or** corporationat the time of giving to pay the seme.

You are respeotfullyadvised that it is the opinion of this department that when any person gives a post-dated check, draft, or order and where this fact is understoodby all parties, the person giving the check, draft, or order is not criminallyliable under Art. 567b of the Penal ,mde, although the oheck, draft or order is later returned because insufficientfunds, or other similar reasons.

We rant to thankyou for the able brief submittedwith your inquiry, which has materially assistedus in answeringyour inquiry.

Trusting that the foregoing satisfaatorilyanswersyour questions,we are

Yours very truly

ATTGRXEXGERERALOFTE!XAS
By s/Al-delluilliams



### APPROVED

MAY 31, 1940 s/ Grover Sellers FIRSTASS&!X!ANT

ATTORNEYGENERAL AW:ob: e&v Ardell xilliams Assistant

Approved Opinion Committee By BUB Chairman