                            NO.. 3081


This opinion   holds:
             That there ia serious doubt es to the
        constitutionality   of House Bill- No. 190 of
        the Forty-sixth   Legislature   or Texas, com-
        monly known as the %ot Check LeW, but that
        this d.vpertment should resolve that doubt
        in favor of the validity     of said Act.




               OFFICE OFTBEA'ITOBBBYGENEBt&


                                               November 8, 1939


Honorable Earl Street
Assistant District  Attorney
Dallas, Texas
Dear Sir:
                        Opinion No. O-1141
                        I&: Constitutionality   of House
                             Bill No. 190, Forty-sixth
                              Legislature.
          Your request for an opinion upon the constitution-
ality of House Bill No. 190 of the Forty-sixth  Legislature
of Texes~~.commonly known as the "Hot Check LaW, has been
received by this department..
          The bill    is not copied     herein ior the reason that
you are fsmiliar   with its terms.       You raise three constitu-
tional questions,   to-wit:
           "1.  Is the Bill unconstitutional
     and in violation  or Section 18 of Article
     I or the Texas Constitution,   which provides
     that no person shall ever be imprisoned for
     debt?
           "2.    Is the Bill unconstitutional  and
     in violation    of the due process clauses in
     both the State and Federal Constitutions?
                Is the Bill unconstitutional   and
     in v&ion      of Section 10 of Article   I of
     the Texas Constitution,   which provides that
     in all criminal prosecutions   that the ac-
     cused shell be confronted by the witnesses
     against him?"
            Your questions present serious difficulties.     The
authorities    seem to recognize that "the establishment  of
presumptions and rules respecting    the burden of proof is
clearly   within the domain ot the state governments".~    (Se-
lected ESSEIFRon Constitutional    Law, Volume 2, page 3500).
And that *it is within the acknowledged power of every legis-
lature to prescribe    the evidence which shall be received
Honorable Earl Street,     November 8, 1939,     Pege 2


and the effect    of that evidence in the courts of its own
government.w     (Fang Tue Ting vs. United States, 149 U. S.
09s).
            The application     or these rules   appears more dif-
ficult   than the statement     oi them.
          There ere Texss ceses ldlich support the consti-
tutional power of the Legislature  to enact House Bill No.
190, and indicate that, possibly,  the constitutional  guer-
entbes have not been infringed.   See:
             Patterson vs.,Stete,  17 Tex. Cr. Rep. 102
             McCoy vs. ,Stete, 294 S. W. 573
             May vs. State, 15 Tex. Ct. App. 430
On the other hand there ere Texas cases which seem to deny
to the Legislature the donstitutional  power to enact legis-
lation similar to House Bill No. 190.   See:
             Buclmer vs. State, 72 S. W. (2d) 274
             Holland vs. State, 2 S. VI. (2d) 248
             Torres vs. ,Stete, 18 8. W. (26) 274
             We are attaching to this opinion      leading   cases
from other    jurisdictions  on this question.
            Although the Attorney General is a member of the
executive department of the State, the duties imposed upon
him ere judicial    es well es executive.    In considering  the
conetltutionelity    or a statute,   this department is perform-
ing a quasi judicial    function , and should be governed by the
well recognized rules established      by the courts governing
such construction.     One of those rules is that every reason-
able doubt as to the validity      of the act must be resolved
in favor of sustaining     it.  See:
             Logan vs. State,    111 S. W. 1028
             Merrs vs.,Yume,     25 S. ii. (2d) 215
            This department, when *called upon to pronounce
the invalidity   of in act of legislation,     passed with all
the forms end ceremonies requisite      to give it the force of
law, will approach the question with great caution, exam-
ine it in every possible    aspect,  end ponder upon it es long
es deliberation   end patient attention    can throw any new
light upon the subject,    and never debhere a statute void
unless the nullity   and invalidity   of the act are placed,      in
their judgment, beyond reasonable doubt.        A reasonable
doubt must be resolved in favor of the legislative        action,
and the act be austeined.n     The above is particularly      true
when a criminal law is being considered.
           We recognize the doubts above suggested,      end be-
cause of these doubts we hold the Act constitutional,       not
only because of the wall recognized    rules of construction
making it our duty to do so, but because this department
hesitates  to discourage  the district  end county attorneys,
or other enforcement officers    of the State, in the enforce-
ment of any criminal law, if there exists      any reasonable
doubt as to the validity   of the law.    It is only when it
is considered by this department that there is no reasonable
doubt that it will hold e criminal lsw invalid.
Honorable Earl Street,     November 8, 1939,        Page 3


             TNSting   that this   setistectorily      answars your
inquiry,    we are
                                          Yours very truly
                                     ATTOTINEYCWERALOFTZAS


                                     BY    (Signed) A. S. Rollins
                                                   A. S. Rollins
                                                       Assistent


             This opinion has been considered         in conference,
approved,    and is now ordered riled.
                                      (Signed)   Gerald C. Mann
                                     Gerald C. ldann
                                     Attorney General of Texas
           These authorities    support    the proposition   that
the prime facie presumption set out        in House Bill No.
190, of the Forty-sixth    Legislature,     is unconstitutional.
The strongest  cases are underlined:.
             Section 10 or Article     I, Texas Constitution
             Section 19 of Article     I,.Texes  Constitution
             Article V, United States Constitution
             56 A.L.R., pages 1141-1149
             12 Tex. Jur., Section 216, pages 324-325
             39 Texas Jur., Swindling and Cheating,
                       Section 52, pages 1096, 1099
             18 Tex. Jur., Best Evidence Rule - Funda-
                       mental Princinle     - Section 232.
                       pages 356-366-
             18 Tex..Jur..    Section 226. Constitutionel
                       Mtiole     I, Section 10, es exclud-
                       ing hearsay documents, page 358
             Fortune vs. State, 66 S. W. (2d) 304
             bolland vs. State, 2 S. W. (26) 248-249
             Buckner vs. State, 72 S. W. (26) 274
             Tomes vs. State, 18 5. W. (2C) 274
             Banfelt vs. United States, 53 Fed. (2d) 811
             Hopt vs..People    of Utah, 110 U. S. 574
             Chester v;i7Stete,     5 S. W. 125, 23 Tax. App.
             Wilburn vs.~State, 77 S. W. 3 (Tex. Case)
             Hayes vs. State, 164 S. W. 841,~73 Tex. Cr. Rep..
             Boyd vs. %ete    8 S W (2d) 110
             Cline vs. Stat;,  36'S.'W. 1099, 3'7 S. W. 732,
                      36 Tex. Cr. Rep. 320, 61 Am. St. Rep..850
             Meg vs. State, 15 Tex. App. 430
             Dissenting   opinions   in Bullock   VS. People,   11 Pac..
(2d) 441..
             Casey vs. United States,  276 U..S..416
             Glover vs. State, 69 S. W. (2d) 136, 125
                      Tex. Cr..Rep. 605
             Stevens vs,.Stete,  80 S. W. (2d) 980, 128
                      Tex. OCR. Rep. 311
           These authorities    support   the proposition     that
the prime facie presumption set out       in House Bill No,
190, of the Forty-sixth    Legislature,    is constitutional.
The strongest cescs ere underlfned:
           blccCovvsggt.ete,  DX3Tex. Cr. Rep. 593
                          8%'
           Mar vs. Stste: 1; Tex. Ct. App. 430
           Floeck v;;, Eta$e,7z   Tex. Cr. Rep. 314,
                          . .
           Newton vs. State, 98 Tex. Or. Rep. 582,
                    267 6. W. 272
           Sulliven vs. State, 100 Tex. Cr. Rep. 419,
                    273 8. W. 566
                                , 17 Tex. Cr. Rop. 102
                                 66 a. w. 517
           Faith vs. State, 32 Tcx. 373
           Dunes vs. State. 14 Tcx. Cr. Rec. 464. 46



                                                              429
                                                               E.

          Johns vs. Stete, 55 Rd. 350
          Robertcon VS. People, 20 Colo. 279, 38 Pac. 326
          State vs. Beech, 147 Ind. 74, 46 N. E. 145
                   36 L.R.A. 179
          Auburn Excise Costars. vs. Merohant, 103 N. Y.
                   143, 8 N. E. 484, 57 Am. Rep. 705
          Snyder vs. Massachusetts,   291 U. S. 98, 78
                   L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575
          OrNeil VS. United   States   (C.C.A.) 19 Fed.
                   (2d) 322
          Corey vs. United States, 2P6 U. 9. 416
          Heyer VS. State, 114 Neb. 783, 210 N. W. 165
          Hegner vs. United States,   285 U. S. 427, 52
                   S. Ct. 417, 76 L. Ed. 861
          Sbate VS. Guarenerf ( R. I.1 194 Atl. 589
          State vs. Spiller,  146 Wash. 180, 262 Pac. 128
                   14 Am. Jur. 890-895
