Hon. Dan W. Jackson 

Criminal Distriat Attorney 

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 tider Art. 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 stated has been received. 

Wa quote the questions presented in your inquiry LU follows: 

"Under 4x%, 567b, Sections 1, 2 and 3, is the endorser 

ever liable? If so, is this liability limited to oases where 

the endorser, oan be shorn to have had a part iu the plan to 

pass the oheok, or may it extend to oases where no suoh proof 

08x1 be made, but where 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, oonstituts prjma facie evidence in the aam way that it 

does against one who 'draw8 or gives* the check?" 

"Wnen a check, ðer given simultaneously with a receipt 

of the merchandise or other things for which it is issued, or 

given at a later date in payment for such things, is dated with 

a date subsequent to the date on which it is aotually given and 

where this fact is understood by %oth parties, isthe giver of the 

oheck criminally liable under Mt. 567b, if the check is later 

returned because of insufficient funds, or other similar reason?" 

Seations 1, 2 and 3 of Art, 567b of the Penal Coda reads as 

followss 
Ron, 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, .or order is 80 draar, have sufficient 

funds with 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 order ma8 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 colleotion in 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 presentation to, and nonpayment of 

said ahsok, draft, or order by, the l%nk, person, firm, 

or oorporation upon whom it nas drawn8 and provided 

further that where suah ohe&, draf’t, or order has twen 

pmtestsd,the notioe of protest thereon shall be admissi%le as proof of presentation and nonpayment and 

shall be prima facie evidence that said obeok, draf't, 

or order was presented to the %ank, person, firm or 

corporation upon whioh it was 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, theretofore received, 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 corporation to 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 insufficient funds 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 

order with a bank for collection in the ordinary ohan4lC3lS of trade and the return of said check, 

draft, or order unpaid to the person making such deposit shall be prima facie evidence of presentation to, 

and nonpayment of said check, draft, or order by, the 

bank, person, firm, or corporation upon 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 shall be prima facie evidence 

that said aheck, draft, or order was presented to the 

bank, person, firm or corporation upon tiich it was 

dram and was not paid. 

"POSSESSION OF PWSONAL PROPERTY SUBJECT TO LIEN, OBTAINED 

BY CHECK, DPAFT OR ORDER AGAINST INSUF'FICIEN'I FUNDS 

sec. 3. It shall be 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 such person 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 outstanding at the time 

such check, draft, or order so given or dram; provided that 

if such check, draft, or order is not paid upon presentation, 

the nonpayment of aame shall be prima facie evidence that 

such person giving or drawing such check, draft, or order 

hadi;iinsufficie&funda with 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 order with intent to defrauds and provided further that proof of deposit 

of said ohsok, draft, or order with a tank for collection 

in the ordinary channels of trade and the return of said 

check, draft, or order unpaid to the person making such 

deposit shall be prima facie proof of presentation to, and 

nonpayment of said check, draft, or order by, the kank, 

person, firm, or corporation upon which it was drawn3 
Ron. Dan W. Jackson, page 4 (0-23;4) 

and provided further that where such check, draft 

or order has been protested, the notice of protest 

thereof shall be admissible as proof of presentation and nonpayment end shall be prima facie evidence 

that said check, draft, or order was premsnted to the 

bank, person, firm, or oorporatidn upon which it was 

dram and was not paid; and provided further that the 

removal of such personal property from the premises 

upon which it was located at the time such check, 

draft, or order was drawn or given, shall be prima 

facie evidenoe that poseession of such property wae 

retained or secured bythe giving or drawing of said 

check, draft, or order." 

Nith reference to subdivision 4, 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 conviction will not ordinarily 

be sustai&d where the check was draw by some person 

other than the accused, it is not neoessarythatthe 

oheck be drawn or signed by the accused if he had 

guilty knowledge of its lrorthless character, It has 

been said that the statute, although making no.spefioio 

rcferenoe to an indorser, is broad enough to cover an 

indorser if he eas a party to the fraud by connivance, 

agreement or conspiraoy. Rowever this may be, it has 

been held that an indorser who stated in good faith 

that the cheek was good could not bs convicted under 

the statute where, on learning that the paper was worthless, he deposited sufficient funds in the bank to meet 

it before it would be presented in the ordinary course 

of bu5inas.s~" 

JAMES va STATE, 257 S.We 866; 

MOORE vo STATE, 219 S.ll. 1097; 

D4wBoN V* STATE, 165 S.W. 675. 

In answer to your first question, you arc respeotfully advised 

that it is the opinion of this department that the endorser is criminally liable only in those oases where he was a party to the fraud by connivance, agreement or conspiracy and where the endorser can bs showo to 

have had a part in the plan to pass the check, draft, or order so dram, 

upon any bank, person, firm or corporation. 

In the case of LLOYD v. STATE, 266 S.W. 765, it was held that a 

party issuing a check under an agreement not to present the seme for payment, where no more representations were made than implied by delivery 
Hon. Dan W. Jaokron, page 5 (O-2334) 

of the check and the request that its presentations be delayed and 

that there muld be no funds in the bank until that date, did not 

oanstitute swindling, under Vernon's Annotated Penal Code, 1916, 

Art. 1422, Subdivision 4, as to obtaining property upon giving e. 

o%ck without reason to believe that it would be paid when presented. 

It will be noted that Art. 567b, supra, speoifically provides that -- 

11 . it shall ba unlawful for any person with 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 suffiaient funds with such bank, person, firm, 

or corporation to pay such chsok, draft or order, and all 

other checks, drafts or orders upon said funds outstanding 

at the time suoh ohsok, draft or order was so given or 

dram . . . " 

When any person gives a "post-dated" oheok it is evident 

that suoh person does not have sufficient funds on deposit with the 

bank, firm, parson, association or corporation at the time of giving 

to pay the seme. 

You are respeotfully advised 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 understood by all parties, the person 

giving the check, draft, or order is not criminally liable under Art. 

567b of the Penal ,mde, although the oheck, draft or order is later 

returned because insufficient funds, or other similar reasons. 

We rant to thank you for the able brief submitted with your 

inquiry, which has materially assisted us in answering your inquiry. 

Trusting that the foregoing satisfaatorily answers your 

questions, we are 

Yours very truly 

ATTGRXEXGERERALOFTE!XAS 

By s/Al-dell uilliams 

APPROVED MAY 31, 1940 

s/ Grover Sellers 

FIRST ASS&!X!ANT ATTORNEY GENERAL 

AW: ob: e&v 

Ardell xilliams 

Assistant 

Approved Opinion Committee 

By BUB Chairman