Honorable           Cecil     H.     Tate                                Opinion             No.     O-1488
County      Attorney
Bailey      County                                                       Re:      Under            Article        567B       of the Penal
Muleshoe.          Texas                                                          Code,        when          a complaint             is taken
                                                                                  by the county                attorney            against
                                                                                  the defendant                for    obtaining         money,
                                                                                  etc.,       with      intent       to defraud         by giv-
                                                                                  ing check            without         sufficient        funds,
                                                                                  should           the complaint              be filed       as a
                                                                                  felony,           regardless             of whether         it is
                                                                                  the first           offense         or    not and      amount
Dear     Sir:                                                                     being        less        than      $50.00?


          Your      request         for        our     opinion     on the above                    stated      question        has     been     re-
ceived     by this        department.


          Section        4 of Article                567B      of the Penal             Code,         setting        forth     the penalties
for    violations         of Sections            1, 2 and         3 of said            article,        reads         as follows:


                     “For        the first           conviction          for    a violation             of sections
          1, 2 or        3 of this        act,       in the event          the check,                draft     or    order
          given      on any        bank,        person,         firm      or     corporation,                 is Five
          Dollars         ($5.00)         or    less,       the punishment                   shall     be imprison-
          ment      in the county               jail     not exceeding                 two years,              or by a
          fine    not exceeding                 Two      Hundred          Dollars             ($200).         For      the
          first     conviction            for    a violation           of sections                 1, 2 or        3 of this
          act,    in the event             the check,            draft     or     order            given      on any bank,
         person,          firm      or    corporation,             is in excess                of Five          Dollars
          ($5.00),        but less         than        Fifty     Dollars          ($50),           punishment              shall
          be by imprisonment                         in the county             jail    not exceeding                 two     years
          or     by a fine       not exceeding                 Five      Hundred              Dollars         ($500).


                     “If it~be       shown             on the trial        of a case               involving          a viola-
          tion    of sections             1, 2 or        3 of this        act in which                the check,             draft
          or     order      given        on any bank,             person,             firm     or     corporation,             is
          less     than Fifty            Dollars         ($50),       that the defendant                      has    been      once
          before         convicted         of the        same      offense,            he shall,             on his        second
          conviction,  be punished   by confinement   in the county jail for
          not less than thirtv  (30) davs nor    not more  than town 131 VP~~C
  Honorable           Cecil     H.    Tate,         page     2 (O-1488)




                        “If it be       shown            upon the trial           of a case           involving         a vio-
            lation      of sections            1, 2 or          3 of this       act that the defendant                    has     two       (2)
            or     more       times     before            been    convicted            of the same             offense,         regard-
            less      of the amount             of the check,              draft        or    order         involved      in the first
            two      (2) convictions,                upon       the third        or    any     subsequent           conviction,
            the punishment                  shall        be by confinement                   in the penitentiary                for    not
            less      than     two     (2) nor           more     than ten         (10) ykars.


                        “For        the first        conviction           for    a violation            of sections            1, 2 or
            3 of this         act,    in the event              the check,            draft     or    order       given     upon       any
            bank,       person,        firm         or    corporation,           is in the amount                 of Fifty        Dol-
            lars      ($50)     or    more,          punishment            shall       be by confinement                   in the pen-
            itentiary         for    not less            than two       (2) years             nor    more      than     ten     (10)
            years.      *


            In view          of the above            mentioned            statute;          you are         respectfully          advised
” that   it is the opinion              of this          department             that when            a complaint          is filed        alleging
  an offense          under      said       statute        when     the amount                of the check,            draft     or    order           is
  less   than        Fifty    Dollars         ($50)        such     complaints                cannot        be filed      as felony          com-
  plaints      for     the first       or     second        offense.


            We       do not attempt             to pass          upon     the constitutionality                    of any portion                 of
  said   act      as the constitutionality                       of various           portions          of the act        are    now        being
  considered           by this        department.


            Trusting          that the foregoing                  fully     answers            your      inquiry,         we    remain


                                                                          Yours         very        truly


                                                            ATTORNEY                  GENERAL                OF   TEXAS




                                                            BY                        /s/      Ardell        Williams
                                                                          Ardell         Williams
                                                                                 Assistant


  AW:jm:da


  APPROVED                OCT        14, 1939
                                                                                                            APPROVED              OPINION
  /s/    Robert         D. Kepne                                                                            COMMITTEE                  BY    BWB
                                                                                                                  CHAIRMAN
  ACTINGATTORNEYGENERALOF                                               TEXAS
