                    October30, 1987




Honorable John B. Holmes, Jr.          Opinion No. JM-820
Harris County District Attorney
201 Fannin, Suite 200                  Re: Whether a conviction
Houston, Texas 77002                   for the offense of issu-
                                       ing a bad check will bar
                                       a prosecution  for theft
                                       where both offenses arise
                                       out of the same trans-
                                       action

Dear Mr. Holmes:

     You ask whether the double jeopardy provisions of the
state and federal constitutions  will bar the prosecution
of a defendant for theft of property fraudulently obtained
by the passing of a worthless   check where the defendant
has already been prosecuted for the class C offense of
issuance of a bad check.   Under the scenario you provide
both offenses grow out of the same transaction.

     The United . States Constitution     and the   Texas
Constitution prohibit any person  from twice being placed
in jeopardy for the same offense. U.S. Const., amend. V;
Texas Const. art. 1, 514.

     Section 32.41 of the Penal Code makes the issuance of
a bad check a class C misdemeanor.        It provides   in
pertinent part:

          (a) A person commits an offense    if he
       issues or passes a check or similar sight
       order for the payment of money knowing that
       the issuer does not have sufficient funds in
       or on deposit with the bank or other drawee
       for the payment in full of the check or
       order as well as all other checks or orders
       outstanding at the time of issuance.

     Article  32.41 was    amended        in   1987   by    adding
subsection (g) to read as follows:




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Honorable John B. Holmes, Jr. - Page 2 (JM-820)




       An offense under this section     is not a
       lesser included offense of an offense under
       section  31.03 or    31.04 of this    code.
       (Emphasis added.)

Penal Code 932.41(g);     Acts 1987, 70th        beg., ch. 687,   at
5091.

     Under article 31.03 of the Penal Code the offense            of
theft is defined, as follows:

          (a) A person commits an offense    if he
       unlawfully appropriates property with intent
       to deprive the owner of property.

             (b) Appropriation    of property is unlawful
       if:

           (1) it is without       the owner's     effective
       consent:

          (2) the property is stolen and the actor
       appropriates the property   knowing  it was
       stolen by another: or

          (3) property in the custody of any law
       enforcement    agency     was     explicitly
       represented by any law enforcement agent to
       the actor as being stolen and the actor
       appropriates the property believing it was
       stolen by another.

     A person commits the         offense of theft of service
under article 31.04 of the        Penal Code when the following
elements are present:

           (a) A person commits theft of service if,
       with intent to avoid payment     for service
       that he knows is provided only for compensa-
       tion:

           (1) he intentionally or knowingly secures
       performance of the service by deception,
       threat, or false token;

          (2) having control over the disposition
       of services of another to which he is not
       entitled,  he intentionally  or  knowingly
       diverts the other's services to his own



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     Honorable John B. Holmes, Jr. - Page 3   (JM-820)
.




            benefit or to the benefit of      another    not
d-
            entitled to them; or

               (3) having control of personal   property
            under a written  rental agreement, he holds
            the property beyond the expiration of the
            rental period without the effective  consent
            of the owner of the property,        thereby
            depriving the owner of the property of its
            use in further rentals.

          The punishment range under articles 31.03 and 31.04
     is from a class C misdemeanor to a 2nd degree felony.

          The Court of Criminal Appeals, in the recent case of
     Mav~v. State, 726 S.W.2d 573 (1987), held that a defendant
     convicted  of involuntary      manslaughter   could not    be
     prosecuted  for driving while       intoxicated where    both
     offenses arose out of the same automobile accident. After
     reviewing numerous United States.    Supreme Court and Court
     of Criminal Appeals decisions     and noting that the double
     jeopardy prohibition may preclude subsequent     prosecution,
-    even though each offense may include elements which the
     other did not, the court stated:

               Turning to the instant cause, we first
            note that both offenses are alleged to have
            been   committed   June   12,   1983.     The
            indictment  for   involuntary   manslaughter
            alleged in part that in Dallas        County
            appellant did:

               'then and there by accident and mistake
               when oneratina a motor     vehicle while
               intoxicated. and bv reason of such intox-.
               ication, [emphasis in original] cause the
               death of [a named individual], by then
               and there driving her automobile across a
               center median [emphasis in original]  and
               colliding with a vehicle occupied by
               [named individual], and thereby cause the
               death of said individual.*

            The information for DWI alleged in pertinent
            part that appellant:

               'was intoxicated. and under the influence
               of intoxicatina   liouor. and while so
               intoxicated and under the influence    of



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Honorable John B. Holmes, Jr. - Page 4   (~~-829)                  .

                                                               i




         intoxicatina   liouor,     [emphasis   in
         original] did then Andy there unlawfully             ?,
         drive and operate a motor vehicle upon a
         public street and hiahway, [emphasis in
         original] in Dallas County, Texas.'

       Facially allegations of the greater   offense
       of involuntary manslaughter required proof
       of the lesser offense, i.e., that appellant
       operated her motor vehicle upon a public
       roadway while intoxicated and collided with
       another vehicle after driving across        a
       center median.    The record clearly    shows
       that the State will rely on and seek to
       prove the DWI case the same act of driving
       while intoxicated on public roadway as 'the
       reckless act necessary to prove     [involun-
       tary] manslaughter.'  Vitale, sunra at 421,
       100 S.Ct. at 2267.

           Thus the   record, including     charging
       instruments,  judgment of conviction      for
       involuntary manslaughter  and habeas testi-
       mony, demonstrates that annellant has been
       convicted of a crime havina several elements
       included in it and is now facina a trial for
       a lesser offense consistina solelv of one or
       more of the elements of the crime  for which
       she has alreadv been convicted.      In this
       Court the State practically     concedes  the
       point by relying on the fact that the
       judgment in State v. Padilla, 101 N.M. 58,
       678 P.2d 686, 101 N.M. 82, 678 P.2d 710
       (1984), was affirmed by an equally divided
       Supreme Court, Fuaate v. New Mexico,      470
       U.S. 904, 105 s.ct. 1858, 04 L.Ed.2d      777
       reh. den. 471 U.S. 1112, 105 S.Ct. 2349, 85
       L.Ed.2d 865 (1985). (Emphasis added.)

726 S.W.2d at 576-577.

     Prior to the present Penal Code, the offense        of
passing a check without   sufficient   funds was the only
statutory offense  involving worthless   checks. The pro-     -,
hibited conduct was set forth in article 567b of the Penal
Code (1939) (repealed). The current Penal Code       (1974)
allows prosecution under the theft statutes, section 31.03
(general theft) and section 31.04 (theft of services).   In   I
addition, section 32.41 makes the issuance of a bad check



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Honorable John B. Holmes, Jr. - Page 5   (m-820)




a class C misdemeanor.  The Practice Commentary    following
section 32.41 noted, in pertinent part:

          This section expands prior law in the bad
       check area.   Underlying this provision    is
       the belief that the issuance or passing of a
       known bad check is, in itself, not only
       harmful to the recipient but also injurious
       to the community at large and is, therefore,
       a proper subject for criminal sanction with-
       out regard to the purpose     for which the
       check was givon. For example, even if the
       immediate recipient gives up nothing       in
       return for the check, and, therefore, is not
       defrauded in the strict sense of that term,
       he may further negotiate      the check, or
       deposit it and draw against it. This poss-
       ibility places him in a precarious   position
       and creates a threat of harm to the general
       public. Another important function of ~the
       provisiqn is the encouragement     of prompt
       payment of dishonored checks.

     In reviewing the elements of theft and the issuance
of a bad check the       Court of Criminal Appeals       '
Christiansen v. State, 575 S.W.2d 42 (1979), in an appeiy
from a theft conviction arising out of the passing of bad
checks in the amount of $241.80~in exchange for four money
orders, stated:

          The record does reflect that appellant
       properly requested  a charge on the lesser
       included offense of issuance of a bad check
       under Sec. 32.41, sunra. The key distinc-
       tion between the offense of theft under
       V.T.C.A. Penal Code, sec. 31.03, and the
       offense of issuance of a bad check under
       V.T.C.A. Penal Code, Sec. 32.41~, is whether
       the defendant in fact receives any property.
       Receipt of property and proof of its value
       are critical elements   in the offense    of
       theft. They are, however, not required to
       prove issuance of a bad check.

575 S.W.2d at 44.

     The court in Christiansen did, however, go on to
state, "[a]lthough issuance of a bad check, a class C
misdemeanor, may under some circumstances be a lesser



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Honorable John B. Holmes, Jr. - Page 6   (m-829)




included offense   of theft, there    is nothing   in the
evidence before us to have required the trial court to        -
have submitted the charge on the lesser included offense."
&   at 44-45.

     In a more recent opinion, WcClain     v. State,    687
S.W.2d 350 (1985), the Court of Criminal Appeals overruled
previous holdings of the court that participation in the
initial acquisition was an essential      element  of the
offense of theft. The court concluded     that, under the
present Penal Code, there was no distinction       in the
essential elements of the offenses of theft and receiving
and concealing stolen property.  The court stated that:

          The error of w       [633 S.W.2d 885, Tex .
       Crim. App.,   19821 is precipitated    by its
       focus on the 'manner of acquisition'         of
       personal property, a focus the Legislature
       removed entirely from the theft statute      in
       the 1974 penal code, then further refined in
       the 1975 legislative session.      Just as it
       has been in the past recognitied that the
       actor's   intent to     'benefit himself
       anotherr   or to    'withhold the     prope$
       permanently' are not essential to commission
       of a theft, so       too has it now       been
       acknowledged   that the 'manner of acgui-
       sition' is inconsequential to the evil of a
       theft:    the   gravamen   of   theft is     in
       deDriVino   the true     owner of the     use,
       benefit. eniovment or value of his vrovertv,
       [emphasis in original] without his consent.

          Thus, the varying misleading emphases   on
       aspects of acquisitive    conduct proscribed
       under former penal codes were sifted out by
       the new, and a single offense was distilled
       from the common elements contained in each:
       clearlv.  if one exercises     control   over
       proDertv knowina it is without the owner's
       consent. and intendina to devrive the owner
        f it, it matters not 'how' the actor a t
       zhe vroDertv    [emphasis added] whether   ge
       intended to' benefit himself     or another,
       intended 'permanently' to deprive the owner,
       etc.




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Honorable John B. Holmes, Jr. - Page 7 (m-820)




            .   *   .   .

            Section 31.03(b)(l) and (2) simply do not
        provide   the    'nature of    the    forbidden
        conduct;' instead, they are both only     ‘cir-
        cumstances      surroundinq     [emphasis    in
        oriainall the conduct.# which in no wav con-
        stitute - 'acts     or . omissions'    of- the
        defendant.    It follows that these provisions
        have evidentiary    import only in terms of
        establishing    the   \unlawfulness'   of   the
        appropriation,    and the defendant     is not
        entitled to have them expressed         in the
        State's charging instrument as a matter      of
        'form' under Thomas v. State, 621 S.W.2d 158
         (Tex. Cr. App. 1981) (Opinion on state's
        motion for rehearing), much less substance.

687   S.W. 2d at 353-55.

     While the Legislature by   its amendment  to article
32.41 was probably expressing the intent that there be no
bar to the imposition of multiple punishments under that
statute and the appropriate theft statute, we believe  the
crucial test in determining    whether  jeopardy attaches
under the state and federal constitutions requires us to
look at the elements of the respective offenses.    Unlike
the defendant in m,    a defendant convicted for issuance
of a bad check has not been convicted   of a crime having
any of the elements of the offense of theft. WcClain made
it clear that it "matters not" how the accused    acquired
the property  in a theft case.    On the other hand, the
issuance or passing of a known bad check is the gravamen
of the offense under section 32.41.

     It is our opinion that the courts will hold that the
trial of an accused for the offense of issuance of a bad
check under section 32.41 of the Penal Code will not serve
as a bar under the double jeopardy provisions of the state
and federal constitutions    to a prosecution   for theft
(under section 31.03 or 31.04 of the Penal Code) growing
out of the same transaction.

                            SUMMARY

            The trial of an accused for the offense
         of issuance of a bad check under section
         32.41 of the Penal Code will not serve as a
         bar under the double jeopardy provisions  of



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Honorable John B. Holmes, Jr. - Page 8 (JH-820)




       the state and federal constitutions   to a
       prosecution for theft (under sections 31.03
       or 31.04 of the Penal Code) growing out of
       the same transaction.




                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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