Hon. Frank D. Mccown       Opinion NO. s-40
County Attorney
Dallas County              Re: The necessity that prior
Dalhart, Texa%                 conviction%for passing
                               "hot checks" preoede the
                               commission of the offense
                               oharged a% a felony under
Dear sir:                      Article 567b, V.P.C.
            We have your request for an opinion whether, under
Artiole 567b of the Penal Code, a person who ha% passed three
"hot check%" for $10.00 each, and who ha% no prior oonvic-
tions, can be tried and convioted on each of the first two
check%, separately,and then be tried and convicted on a fel-
ony 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 in-
     volving 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 defendant ha% been onoe
     before oonvloted of the %ame offense, he shall,
     on his aeoond ooaviotioa,be punished by con-
     finement in the oounty j8il for not less than
     thirty (30) days nor more than tVo (2) years,
     a& by a fine not exceeding Two Thousand Dollars
      ($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, regardless of 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 Thousand Dollars
        ~~5,000).”
           Our search of the authoritiesreveals no oa%e aon-
 struing Article 567b which has passed
                                .. _ specificallyupon your
 particular questloii.nowever, tne language used In para-
 graphs two and three of Section 4 of Article 567b, a% quoted
     . la similar to the language of Artiolee 61, 62 8nd 63
 above,
 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, intended the
 same construotiona% theretoforeplaced by the court% on Artl-
 cles 61, 62, and 63.
           Article 61, dealing with second and subsequentoon-
 vfotions of misdemeanors,read% as follow%:
            "If it be shown on the trial of a misde-
        meanor that the defendant has been once before
        convicted of the same offense, he shall on a
        second convictionreceive double the punish-
        ment preeorlbed for such offense in ordi~y
        cases, and upon a third or any subsequentoon-
        viction for the same offense, the punishment
        shall be increased 80 a% not to exceed four
        times the penalty in ordinary oa%e%.”
           Article 62, dealing with eubsequentaonviotion of a
 felony, read% a% follow%:
            "If it be shown on the trial of a felony
        lees than capital that the defendant has bean
        before convicted of the same offense, or one
        of the same nature, the punishment on such
        second or other subsequentconviction shall
        be the highest whloh is affixed to the com-
        mission of such offenses in ordinary case%."
           Article 63, dealing with third oonvlotlonOf a
felony, read% a% follow%:
            "Whoever shall have been three times oon-
        vloted of a felony less than capital &all on
        suoh third convictionbe imprisonedfor life
        in the penitentiary."
           Tb&ca%e% construing the enhanced punishmentpovi-
aions of Articles 61, 62 and 63 of the Penal Code oleuly hold
that the second offense muat occur after the loou%ed ha% been
Hon. Frank D, McCown, page 3 (S-40)


convicted of the first offense and the third offense must
occur after the conviction of 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 construed with other provi-
      sions of the Penal Code and the Code of Crim-
      inal Procedure, is a reformatory statute, and
      does not warrant the cumulation of a number
      of cases occurring simultaneously,in order to
      add to the punishment,of the ca%e on trial,
      but contemplatesan enhanced punishment for a
      party who, after one conviction,does not re-
      form, but persists in committing other offenses
      of a like character." Muckenfuss v. State, 55
      Tex. Grim. 216, 217, 11~s.w.~     (1909).
          An Indictmentseeking to charge prior convictionsa%
the basis for punishing a defendant as an habitual criminal
must aver that each succeedingoffense was committed after con-
viction of the preceding offense, 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
conviction under 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 convicted under the same Article; that the second
offense be committed subsequent to the first conviction,and that
the third offense be committed subsequent to the second convic-
tion.
                  l

                          SUM M AR Y




               In order to sustain a felony con-
          viction 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 accused has twice before
          been convicted under the same Article,
          that the second offense was committed sub-
          sequent to the first oonviotion, and that
Hon. Frank D. &Sown, page 4 (S-40)


         the third offense was comnltwd subse-
         quent to the second oonvlction.
APPR0IED:                    Yonrcivery truly,
Rudy G. Rioe                 JOHN BEN SREPPERD
St&e Affair8 Dlvieion        Attorney General
Willie E. Oreshem
Reviewer
Robert s. Trotti                     Assietant
First Assistant
John Ben Shepperd
Attorney Qeneral
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