Hon. John R. Lee                            Opinion No. V-1428
County Attorney
Winkler County                              Ret   Se,veral questions on H. .B.
Kermit, Texas                                     40.3, 52nd Legislature, the
                                                  *Hot Check Law.”
Dear     Mr.    Lee:

          Your request for an opinion relates to House Bill 403,
Acts  52nd Leg., R.S. 1951, ch, 305, p. 496. commonIy referred
to as the “Hot Check Law.”       This recent statute amends Article
567b, Vernon’s    Penal Code,     Of primary     importance   is your in-
quiry directed to the validity of the ‘prima facie evidence of in-
tent to defraud” provision     contained in Section 2 of House Bill
403. Our consideration      of this question entails a discussion        of
two distinct phases of this matter, namely, (1) the constitutionali-
ty of the “prima facie evidence.      provision,    and (2) the construe’
tion, operation,   and effect of this provision     in view of Colin v,
State, 145 Tex. Grim. 371, 168 S.W.Zd 500 (1943), in reqto                  a
worthless   check given in payment of a pre-existing         obligation.
Your remaining two questions concern the necessity             of the ten
days’ notice of nonpayment of a worthless          check to the drawer,
as provided in Section 2 of House Bill 403, as a prerequisite            to
a prosecution    under the act.

               The pertinent   provisions    of House   Bill 403 are as fol-
lows:

              “Section 1. It shall be unlawful for any person
        to procure any article or ,thing of value, or to secure
        possession    of any personal property to which a ,lien
        has attached, -or to make payment of any pre-existing
        debt or other obligation of whatsoever     form or nature,
        or for any other purpose to make or draw or utter or
        deliver, with intent to defraud, any check, draft or
        order, for the payment of money, upon any bank, per-
        son, firm or corporation,    knowing at the time of such
        making, drawing, uttering or delivering,     that the maker,
Hon.     John R. Lee,   page 2 (V-1428)   ’



        or drawer, has not sufficient funds in, or on deposit
        with, such bank, person, firm or corporation,   for the
        payment of such check, draft or order, in full, and
        all other checks, drafts or orders upon such funds
        then outstanding.

              “Sec. 2. As against the maker, or drawer there-
        of, the making, drawing, uttering or delivering   of a
        check, draft or order, payment of which is refused by
        the drawee, ,shall be prima-facie   evidence of intent
        to defraud and of knowledge of insufficient funds in,
        or on deposit with, such bank, person, firm or cor-
        poration, provided such maker or drawer shall not
        have paid the holder thereof the amount due thereon,
        within ten (10) days after receiving notice that such
        check, draft or order has not been paid by the ‘drawee.

              “Sec. 3. The word ‘notice“ as used herein shall
        be construed to include either notice given to the person
        entitled thereto in person or notice given to such person
        in writing.   Such notice in writing shall be conclusively
        presumed to have been given when deposited,      as regis-
        tered matter, in the United States mail, addressed      to
        such person,at   his address as it appears on such check,
        draft or order.”

             The comparable  section of the repealed Article      567b.   V.
P.C.,    prior to the 1951 amendment,   provided as follows:

              “Sec. 2. It shall be unlawful for any person, with
        intent to defraud, to pay for any goods, service,    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 such person does not,
        at the time said check, draft, or order is so given or
        drawn, have sufficient funds with such bank, person,
        firm, or 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 was
        so given or drawn; provided that such check, draft, or
        order is not paid upon presentation,     the nonpayment of
        same shall be prima facie evidence that such person
        giving or drawing such check, draft, or order had
.



    Hon.   John R, Lee,   page 3    (V-1428)



           insufficient funds with the drawee to pay same at
           the time the said check, draft, or ord,er was given
           or drawn and that said person gave such check, draft,
           or order with intent to defraud; and provided further
           that proof of the deposit of said check, draft, or order
           with a bank for collection     in the ordinary channels of
           trade and the return of said check, draft, or order un-
           paid 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 was drawn; and provided
           further that where such check, draft, or order has been
           protested,    the notice of protest thereof shall be ad-
           missible    as proof of presentation    and nonpayment
           and shall be prima facie evidence that said check, draft,
           or order was presented to the bank, person, firm or
           corporation     upon which it was drawn and was not paid,”

               It is to be noted that the new *Hot Check Law,” in amend-
    ing Article    567b, V.P.C.,  embodies substantial       changes not ~only in
    the import and substance of the offense but also in the rules of evi-
    dence available in the prosecution       of the offense.     This is especial-
    ly true in Section 2 of House Bill 403, which s.ets forth the prima
    facie evidence rule concerning the necessary          intent to defraud.       It
    is upon this provision that your questions are principally            centered,
    Under the repealed enactment,        there were three prima facie evi-
    dence rules, the first relating to the presumption1           of insufficiency
    of funds and intent to defraud upon proof of nonpayment, the second
    to the presumption     of presentation    and nonpayment upon proof of
    deposit, and the third to the presumption       of presentation      and non-
    payment upon proof of notice of protest.        The new hot check law
    omits the second and third rules altogether;         and it modifies the
    first rule by raising a statutory presumption..of         intent to defraud
    and knowledge of insufficiency       of funds upon proof of nonpayment,
    but adds thereto, as a condition precedent to its operation, the



         l/  Throughout this opinion the term “presumption”     is used to
    meana   permissive   presumption   amounting to sufficient evidence to
    create a prima~facie   case.  See Floeck v. State, 34 Tex. Grim, 314,
    30 S.W. 794 (1895); McCormick,     Charges on Presumptions     and Bur-
    den of Proof, 5 N.C.L.   Rev. 291, 295 (1927).
Hon. John R. Lee,     page 4 (V-1428)



requirement    that the maker or drawer must be notified of such
nonpayment and must be granted ten days in which to make the
worthless   check good.

          After a comparative  study of the two statutes and an ex-
amination of the pertinent authorities   in this State, it is our opin-
ion that the “rule of prima facie evidence” contained in Section 2
of House Bill 403 is valid and constitutional.

          It is well recognized  in Texas and throughout the United
States that the legislature   may within certain limits establish   or
change the rules of evidence.     2 Wharton, Criminal Evidence (10th
Ed. 1912), Sets. 715, 715A.     Under this legislative  power our Tex-
as courts have held that proof of certain acts of one, accused of
crime may be mad,e prima facie evidence of some incriminating
fact against him.    Floeck v. State, 34 Tex. Grim.    314, 30 S.W. 794
(1895); O’Brien v. State, 90 Tex. Grim.     276, 234 S.W. 668 (1’921);
Newton Y. State, 98 Tex. Crim. 582, 267 S.W. 272 (1924); Mayes
v. State, 145 Tex. Grim. 295, 167 S.W.2d 745 (1942).

          In Floeck   v. State,   supra,   the Court of Criminal         Appeals
held that it was within the power of the Legislature   to make a li-
cense procured from the federal authorities    to pursue the occupa-
tion of a liquor dealer prima facie evidence that the party procur-
ing it pursued such occupation for the time specified in the license,
In announcing this rule, the Court in its opinion stated:

          ” ‘While the right of trial by jury in actions of
     law is secured by the constitution,      the forms of pro-
     ceeding and the rules of evidence are within the con-
     trol of the legislature.    * * * The constitutional  power
     of the legislature   to prescribe   rules of evidence is
     well settled.    4 8 * This power has often been exercised
     by the legislature,    with the sanction of the courts, so as
     to change the burden of proof, or to affect the question
     what shall be prima facie evidence at the trial before
     the jury. . . . ’ Vide Holmes v. Hunt, 122 Mass.      505. . , .

          “A number     of other authorities     from   other   states
     might be cited to the same effect, but we deem it un-
     necessary.    So far as we have examined, they all con-
     cur in the view that it is within the power of a legisla-
     ture to establish,  change, or alter rules of evidence and
Hon.    John R. Lee,   page 5 (V-1428)



       procedure   in the courts.”   [Emphasis   added throughout.]

          The doctrine announced in the Floeck case was followed
in subsequent decisions       in this State, subject only to the qualifica-
tion that the statutory    presumption     must not,be an unreasonable
exercise   of the legislative    power and must not infringe the right
of trial by jury and the power of a jury to review all the evidence
in a case and return its verdict accordingly.

          It was not until recently that the Texas courts attached
other limitations,  by express language and through practical      con-
struction, to the general power of the Legislature    to prescribe
statutory rules of evid~ence in criminal cases.    Both of these cases
involved a construction   of Article 567b, V.P.C.,  the old, hot check
law.

          In Mayes V. State, 145 Tex. Crim. 295, 167 S.W.2d 745
(1942), the Court of Criminal Appeals held invalid the provision
in the former law that proof of deposit of a check for collection
was prima facie evidence of presentation       and nonpayment,      The
court based its decision on the ground that the Legislature        had
gone beyond legitimate   limits in entending the rules of evidence
when it attempted to raise a presumption       against an accused from
facts and circumstances    over which he had no control and with
which he had no connection.    It was also pointed out that this pre-
sumption was merely the basis for another presumption,           “thus
piling one presumption   upon another as to the supposed acts of
third parties with none of whom appellant had any connection, nor
over whom he had any control.”      In establishing   this limitation to
the general rule of the Floeck case, the court stated:

            “While such a rule has been recognized       by our own
       court as well as many others,      certainly a law should not
       be upheld which would make an act prima facie evid,ence
       of a necessary   criminative   fact against one accused of
       crime when such party had no control over nor connec-
       tion with the act in question.    T.he same would be true
       where it was sought to make certain facts and circum-
       stances over which accused had no: control or with which
       he had no connection prima facie evidence against him.”

            In Colin v. State, 145 Tex. Grim. 371, 168 S.W.2d 500 (1943),
the case    submitted   to the Court of Criminal   Appeals  involved a
Hon.   John R. Lee,   page 6 (V-14.28)



prosecution    for passing a worthless    check in payment of a pre-
existing obligation under Section 2 of Article     567b, V.P.C.    The
sole evidence introduced by the State to establish intent to de-
fraud was that the worthless     check was given in payment of a pre-
existing indebtedness,     The court, in reversing    the case, held that
evidence which merely showed that a bad check was given in pay-
ment of a pre-existing    indebtedness,   without the presence    of ac-
companying facts, was insufficient to establish the intent to de-
fraud which is essential    to a violation of the hot check law. Thus,
the court held in effect that the presumption     of intent to defraud
arising from proof of nonpayment was inoperative         under these
circumstances.

           The decisions    in these two cases doubtlessly    prompted
the Fifty-second    Legislature    of Texas to revise substantially   the
hot check law, as it did by enacting House Bill 403. Apparently
the “prima facie evidence of intent to defraud” provision was re-’
written in an effort to obviate the defects pointed out by the Court
of Criminal Appeals and to conform to its rulings in the Mayes
case and the Colin case.       In enacting Section 2 of House Bill 403,
it is our opinionat      the Legislature   accomplished   its purpose.

           The primary  constitutional  objection leveled at the prima
facie evidence clause of the old hot check law, under the Mayes de-
cision, was that the statutory presumption      arose solely upon the
acts of third parties, over whom the accused had no control or with
whom he had no connection.      We do not believe, however, that a pro-
secution utilizing the prima facie evidence rule of the new statute
would be subject to such objection.    In an effort to obviate the con-
stitutional defects pointed out by the court in the Mayes case, and
to conform to the ruling therein, it was the apparent purpose of
the Legislature    to transfer to a maker or drawer of a worthless
check the power to exercise      the principal control and connection
over the facts and circumstances       from which the, statutory presump-
tion springs.    It is clear that the statutory presumption    in the new
law does not become operative to establish an intent to defraud
until the maker or drawer of the bad check has received actual
notification  of the nonpayment of the instrument,     and, in addition,
unless such maker or drawer has not paid the holder thereof the
amount due within ten days of such notice.   Thus, the new hot check
law differs from the repealed enactment in that the necessary   intent
to defraud on the part of the accused cannot now be presumed   until
the accused himself has had a fair opportunity to take action.  The
Hon.   John R. Lee,   page 7 (V-1428)



requirement   of notification  of nonpayment of the bad, check, to-
gether wtth a ten-day period during which the maker by his ac-
tion in making the check good could automatically     negative the
presumption   of intent to defraud, would seem to grant the neces-
sary control and connection d,emanded by the Mayes case.

         Consequently,   it is our opinion that the new provision
would not fall within the limitation placed upon the general rule
in the Mayes case.

          With respect to the other general qualifications  on the
power of the Legislature   to prescribe rules of evidence, it is
clear that the rule of prima facie evidence set out in Section 2
of House Bill 403 does not infringe the right of trial by jury.
Floerk.b  State, s.

           The issue of a specific intent to defraud is, in the final
analysis,   a question of fact for the determination     of a jury, after
full consideration    of all the facts in the case.  It is undisputed,
however, that the employment        of a prima facie rule of evidence
in a criminal prosecution      does not operate to deprive the jury of
its inherent right and power to review all of the evidence in a
case, and to return its verdict based upon all the facts.

           The statutory presumption     provision    contained in Section
2 of House Bill 403 is not a conclusive      one, but is rebuttable.    It
does not operate to shift the burden of proof upon the defendant.
~The presumption    of innocence still remains with the defend,ant, but
along with such presumption      of innocence,   the jury is entitled to
consider the presumption      under the statute as to knowledge of in-
sufficient funds and intent to defraud.     It is still the prerogative    of
the trial jury to ascertain,   as a question of fact, whether or not
under all the facts and circumstances      the accused acted with the
specific intent necessary.

          The general rule in Texas as to the operation and effect
of a prima facie evidence rule is succinctly stated in Floeck v.
State, s,     in the following language:

             “The object of this provision was not merely      to
       render such evidence admissible,       for, without the aid
       of the’statute,  it might have been received,    although
       further evidence to show intent would have been neces-
       sary.    Neither is it mad,e conclusive   proof of such
Hon.    John R. Lee,   page 8   (Vi1428)



       intent, but merely presumptive    evidence,      and as such
       proper for the consideration   of the jury,     in connection
       with the other evidence in the case . . . . It is merely
       proof of the case, upon which the jury may find a ver-
       dict, unless rebutted by other evidence.”

           Moreover,  the fact that it is indeed difficult to establish
the specific intent to defraud in a prosecution      of this nature ren-
ders it not an unreasonable    exercise   of the legislative  power to
prescribe   rules of evidence in criminal     cases, and thus we believe
that this character  of evidence may be resorted to in order to es-
tablish a prima facie case.    Floeck v. State, supra.

            The Legislature     in enacting prima facie provisions         to
criminal statutes does so for the purpose of aiding the State in
making proof of some essential          element of the offense.      It is ob-
vious from the very nature of the offense here involved that in
most cases it would be extremely           difficult, if not impossible,    to
establish proof of the requisite knowledge and intent by means of
subjective    evidence as to the state of mind of the drawer.            These
facts, therefore,      must be determined primarily        from the circum-
stances surrounding the offense,          It is a valid exercise    of the leg-
islative power to prescribe       a rule of prima facie proof based upon
reasonable     inferences   from. established      facts. Floeck v. State, su-
pra.     In regard to the presumption         created by Section 2 of House
G     403, there is a rational connection between the facts which must
be proved and the facts which may be presumed.               Had the worthless
check been passed without any criminal intent to defraud, it is rea-,
sonable to assume that the drawer, when notified of its nonpayment,
would take immediate        steps to rectify the matter,       In such event, the
statutory presumption       would not attach.       On the other hand, a contrary
course    of conduct by the drawer upon notification of the nonpayment
of the check would be indicative of his bad faith in drawing the check,
Consequently,      it is our opinion that the creation of this presumption
was not an unreasonable        exercise    of legislative  power.

           For the foregoing reasons,      it is our opinion that Section 2
of House Bill 403, in prescribing      a prima facie rule of evidence of
intent to defraud in aid of a prosecution       under the act, is a valid and
constitutional  exercise   of the legislative    power to establish rules of
evidence in criminal cases.

           Nor do we deem the case         of Colin v. State,   supra,   to be
HOPI,   John R. Lee,   page 9 (V-1428)



authority to the contrary.     The Colin case does not deny the power
of the Legislature   to prescribe-a           facie rule of evidence in
aid of the prosecution   of the offense of passing a worthless     check.
We conceive that the holding of the court in that case was limited
to and based solely upon the sufficiency      of the evidence to support
a conviction for the offense charged.       Und.er the opinion of the Colin
case, the court held only that, in a prosecution      under the old hot
check law, evidence which merely showed that a bad check was giv-
en in payment of a pre-existing      indebtedness,   without the presence
of accompanying    facts, was insufficient   to establish the intent to de-
fraud which is essential    to a violation of the law.

             In its opinion   in the Colin case,   the Court of Criminal   Ap-
peals    stated:

              *The question next arising is as to whether or not
        the evidence establishes     an intent to defraud where the
        only thing in evidence is that the check was given for a
        pre-existing   indebtedness.    In construing statutes of this
        nature the courts of various states are in conflict. Some
        cases hold that a set of circumstances        may be presented
        in which it is shown that, even though the check was giv-
        en for a pre-existing   indebtedness,     there may be shown
        an intent to defraud by reason of the presence of accom-
        panying facts.    Other cases hold, as a matter of law that
        where the only thing that the evidence ~shows is that the
        check was given for a pre-existing       indebtedness  there is
        no intent to defraud,   Other cases hold, as a matter of
        law, that an intent to defraud is shown, though the check
        was given for a pre-existing      indebtedness.”

          After reviewing the decisions from           other jurisdictions
in support of the above-stated three general           rules, the opinion con-
cludes:

              “We have been unable to find any authorities  in
        Texas which would prove helpful.    The State feels that
        probably the Ohio case correctly   represents  the law.
        There may be facts accompanying     the payment of a
        pre-existing  debt which would evidence an intent to
        defraud, but the mere fact that an accdunt was paid by
        a bad check does not show an intent to defraud.    We
Hon.   John R. Lee,       page   IO   (V-1428)



       think a jury would be warranted           in:finding an’%tent’.tO
       defraud under the circumstances            shown in the Lowen-
       stein case from Ohio. . . .

             “Under the facts of this case it would seem that
       there was no inten,t to defraud shown because the evi,-
       dence merely   shows that the check was given for a pre-
       existing indebtedness.

            w
             . . .

            ”. . . It is not to be understood that we are holding
       that under no circumstances      could the statute be vio-
       lated by giving a bad check for a pre-existing     debt. Facts
       might be present which would show an intent to defraud
       in giving such a check, but no such facts are here pre-
       sent.”

         Although the decision of the court in ruling upon the suffi-
ciency of the evidence had the practical  effect of rendering useless
the prima facie evi,dence provision  as an aid to a prosecution     under
the old hot check law..where the :check tias.for. a pre-existing(dcbt,the
court did not, in any measure,     inhibit or limit the const.itutional
authority of the Legislature    to establish  or change the rules of evi-
dence.    In this respect the Colin case differs from Mayes v. State.
There is a distinction betwxeclaring           a legislative   enactment
invalid and unconstitutional    and holding that the evidence, in a par-
ticular case, is insufficient to establish    an essential   elemem of an
offense under the law, In the one case, the decision operates as a
judicial ascertainment    of the limitations   of the legislative   authority
upon some specific constitutional      ground, thereby offering some
guide or criterion to the future powers and prerogatives          of the Leg-
islature.    On the other hand, a decision ruling upon the suffi,ciency
of the evidence tends only to determine the basic or mi.nimum stand-
ard of proof required in order to establish the commi,ssion          of an of-
fense or to prove an essential  element thereof.  Therefore,    when a
new case is initiated based upon new and additional facts in excess
of the minimum standard required by judicial precedent,      the suffi-
ciency of the evidence to establish the essential element must of
necessity  be decided primarily   upon the merits of the singular facts
and circumstances    of the new prosecution.

                Thus,   we are convinced     that a prosecution   brought   under
Hon.   John R. Lee,   page   11 (V-1428)



the new hot check law would not present an analogous fact situa-
tion to that which existed in the Colin case.   For should the prose-
cution seek to utilize the prima facie rule of evid,ence of Section 2
of House Bill 403, the proof offered by the State must not only es-
tablish the nonpayment of the worthless    check, but must of neces-
sity further reveal evidence of the notification   of the nonpayment
of the check to the drawer, in addition to evidence that the drawer
did not make the check good within a ten-day period.      This addi-
tional evidence which is required to be shown prior to the operation
of the prima facie rule exceeds the minimum standard of proof se:.
by the Colin case to establish  an intent to defraud, thereby di?t;n-
guishing the fact situation as developed in the Colin case.

          AccordingIv, in view of the additional matters of proof
which must be offered by the State in order to invoke the opera’.::t::.
of the statutory presumption.  ,litis our opinion tnat the decision ir,
Colin v. State, supra, would no? ac6 as a riullification of the present
prima facie evidence rule in Section 2 of House Bill 403.

            The case of State v. Lowenstein,      109 Ohio St. 393, 142 N.
E. 897 (1924), upon which the court in the Colin case placed great
reliance.    tends to support our position in this matter.       Under the
facts of the Ohio case, a Mrs. McCarthy was employed to make
dresses    ft.-r Lowenstein.    At the end of a week’s work Lowenstein
gave her a check to cover her wages.          Mrs. McCarthy     continued to
wor’4 dr.d ,!h, check was returned by the bank for insufficient        funds.
When noiifled      of the nonpayment of the worthless     check, Lowen-
?+ei.n stated that he would make the check good.         Tlz .Irial court di-
rected a verdict for the defend,ant on the ground zhat in no case
whr.te a chi,ck is given for a past consideration       can an intent to de-
rraud exist.      The Supreme Court of Ohio, in reversing       the action of
the trial ccturi,, held, in effect that the prima facie evidence rule
operated in all cases where checks were given ior a past considera-
tion, but the prima facie case could be rebutted.         It was pomted out,
however, that the question whether the prima tacie case had been
successfully      established  or rebutted was for the determination      of
the jury and should not have been decided by the trial judge.           In its
opinion the court stated:

             ‘The sole question in this case is this: Does the
       giving of a check drawn on a bank wherein there are in-
       sufficient funds to pay the same, when the check is giv-
       en for a past consideration,  constitute a prima  facie
Hon.    John R. Lee,   page   12 (v-1428)



       violation of section 710-116   of tbe General Code?
       This section reads as follows:     ‘, . . As against the
       maker or drawer thereof, the making, drawing,
       uttering or delivering  of a check, draft, or order,
       payment of which is refused by the drawce. shall be
       prima facie evidence of intent to defraud, and know-
       ledge of insufficient funds in, or credit with, such
       bank or other depositary..    . ,’

            l...

            *It is evident, therefore, that the learned judge
       was of the opinion that in no case where a check is
       given for a past consideration   can intent to defraud ex-
       ist, and that the prima facie evidence of intent to de-
       fraud, which, under the statute, exists when,payment
       of the check is refused by the drawee, is rebutted
       when it is shown:that the check is given for a past con-
       sideration.

            -* . .

            ‘If rebutted, the presumption   must be rebutted by
       something in the nature of the act of giving a ‘cold
       check’ for a past consideration,   which establishes   enough
       of good faith to counteract the presumption    of fraud,ulent
       Went    specifically raised by the statute,

            Y
             l ..




            “When in payment of a past consideration    a man
       gives a check, if he gives the check knowing that he has
       not fund,s on deposit to cover it, why does he so act?  He
       so acts because .he expects to gain an advantage.   He ex-
       pects perhaps to deceive persons who are pressing for
       payment; he expects them to think that he has paid the old
       debt when he has not paid.

            “. . .[The statute] provides . . . that the return of the
       check is prima facie proof of ‘intent to defraud, and know-
       ledge of insufficient  funds in, or credit with, such bank or
       other depositary.’    That is, the statute places the know-
       ledge of the insufficiency   of funds on the same plane as
Hon.   John R. Lee,   page   13 (V-1428)



       intent to defraud, and thtrs makes proof    of such
       knowledge evidence ef Mert to &fraud.

             ‘The fact of knowledge cannot be determined
       until evidence is taken upoa tbat point      Certainly it
       cannot be de,termined. on a stoiement such as was giv-
       en by the proseeutur   in thhla case,. Intent to defraud
       and knowledge of the iasuffi&mcy       of the fund are
       questions of fact, te be determined     on all the evidence
       by the jury. . . .

            “It is not the holding mf this court that the issue
       of such a check for a past-due     obligation is conclusive
       evidence of an intent to d,efraud.    It is a prima facie
       evidence only. and miy be rebutted in the course of
       the trial.  The court, however, does heId that a prima
       facie case of intent to d,efraud was established    upon the
       facts here set forth, and, that, the learned judge erred
       in sustaining the motion to take the case from the
       jury.*

          The prosecution   in the Lowenstein   case was bottomed up-
on a statute very similar to the present Texas statute.       With the ex-
ception of the ten days’ notice of nonpayment provision,       the prima
facie evidence of intent to defraud sections are almost identical in
language.   As in the Colin case, the deci.aion’in the Lowenstein      case
rested upon the sufficiency   of the evidence to establish the essential
intent to defraud, and, the court held that proof of nonpayment of the
check was sufficient to establish a prima facie case calling for a
jury determination   on the question of intent.   The additional require-
ment in the Texas statute for proof of the drawer’s      failure to make
the check good, furnishes an even stronger basis for the pres~umption
of fraudulent intent than was present in the Ohio statute.

           The crime of uttering and passing      a worthless   check given
in payment of a pre-existing      debt was first introduced into the law
of this State in 1939 by the enactment of Article      567b.  It was cre-
ated to meet a situation different from’ that covered by the offense
of swindling or obtaining property under false pretense as defined
in Article   1546, V.P.C.    By expressly   including checks given for
past debts, the Legislature     clearly evid,enced its intention to protect
creditors   from receiving    “hot checks’ in payment of previously     in-
curred obligations.     It was pointed out in State v. Lowenstein,    supra,
Hon.   John R. Lee,   page I,4 (V-1428)



that the purpose of a statute of this nature is to protect the cred-
it intercourse   of the community    -- ‘to protect business men all
over the state, to protect commercial       life; about 90 per cent of
the commercial     work of the world being done on credit,.        The
exigencies   of trade, commerce,     and, banking have necessitated
the creation of a crime of this nature and the adoption of ne~w rules
of evidence for the establishment      of proof of its commission.     As
so aptly expressed     in the Lowenstein   case, the statutory presump-
tion of fraudulent intent arising from the giving of a worthless
check for a past obligation is not an unreasonable       onebfor why
would the drawer of the check so act, unless it was because he
expected to deceive or to gain an advantage 7

          In the Colincase,    the Court of Criminal Appeals was of
the opinion that *a jury would be warranted in finding an intent to
defraud under the circumstances       shown in the Lowenstein      case
from Ohio..    It is our conception that a fact situation arising under
the new hot check law would approach circumstances          similar to
those present in the Ohio case.      In that case, when the check was
returned for insufficient    funds, the payee notified the drawer of
such nonpayment,     at which time the drawer stated that he would
make the check good. The prima facie rule in House Bill 403
contemplates    that a payee, upon nonpayment,      must similarly    noti-
fy the drawer of such fact, thereby eliciting from the drawer some
statement or course of conduct which would aid in revealing his
clear intention in passing the worthless      check.  No facts of this
nature were present in the Colin case.       From our study of the
language in the Colin case, we suggest that the Texas court would
sustain the suffizy        of such evidence to establish prima facie
proof of the essential   intent to defraud.

          Your remaining two questions concern the necessity   of
giving the ten days’ notice of nonpayment of the check to the drawer,
as provided in Section 2 of House Bill 403, as a prerequisite to a
prosecution  under the act.

          We are in agreement with the conclusions    st~ated in your
brief to the effect that a prosecution may he brought under the new
hot check law without giving the ten days’ notice as provided in the
statute.  As you have so ably stated, it was the primary purpose of
the Legislature   in including a prima facie evidence provision   in
the new law to assist the prosecution   in those cases in which the
other evidence might be insufficient   or unavailable to establish the
,. .




       HOG John R. Lee,     page   15 (V-1428)



       commission     of the offense or in proving some essential       element
       thereof.   This statutory presumption       is, in a sense, merely a
       means of “bridging the gap” in situations wherein it is difficult,
       if not impossible,    for the prosecution    to adduce subjective    evi-
       dence as to certain matters not ordinarily         capable of proof by
       other evidence.     The employment      of the statutory presumption,
       however, is not compulsory       or mandatory upon the State in every
       such prosecution,     but, as in the case of any evidentiary     rule, the
       State may choose to submit evidence based. upon such rule, as
       in its discretion   is deemed expedient and proper.        Should the
       State elect to rely upon the statutory presumption,         however, it
       is our opinion that the ten days’ notice of nonpayment would then
       be an ind,ispensable condition precedent to the operation of the
       prima facie rule of evidence in Section 2.

                In the recent case of Watson v. State, 229 S.W,Zd 621,623
       (Tex. Crim. 1950), the Court of Criminal Appeals ruled upon this
       very point:

                 “Proof of presentment  for payment of a check is
            re,quired only when the presumptions  provided in Art.
            567b, Vernon’s  P.C., are relied upon by the State.

                 ‘Here,  the owner of the automobile proved d,irect-
            ly that the appellant had no account with the bank upon
            which the check was drawn.     The State, therefore,  did
            not rely upon the presumptions   arising by reason of
            nonpayment of the check after presentation    for pay-
            ment.”

                 Upon the same authority and for like re,ason, it is our
       further opinion that a prosecution    may be initiated without the ten
       days’ notice of nonpayment of the check, in a situation where the
       worthless   check is given in payment of a pre-existing     indebtedness,
       but where other circumstances      are present to sufficiently  establish
       the necessary   intent to defraud.



                                      SUMMARY

                 Section 2 of Article   567b, V.P.C., as amended by
            House Bill 403, Acts 52nd Leg., R.S. 1951, ch. 305, pa
            496, in prescribing   a rule of prima facie evidence of
Hon.    John R. Lee,   page 16   (V-1428)



       intent to defraud in aid of a prosecution   for passing    a
       worthless   check is valid and constitutional.

            Where a chgck is gi,ven in payment of a pre-existing
       debt, the failure of the drawer to pay the holder the amount
       of the check within ten days titer notice of its nonpayment
       by the drawee is prima facie evid,ence of intent to defraud
       on the part of the drawer.

            The ten days’ notice to the drawer of nonpayment of
       a worthless  check, as provided in Section 2 of House Bill
       403, is not a prerequisite to a prosecution under the Act

                                            Yours   very truly,

APPROVED:                                    PRICE DtiIEL
                                            Attorney General
Mary Kate Wall
Reviewing Assistant
                                            By~lg~
Charles D. Mathews                             Hugh Lyerly
First Assistant                                    Assistant


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