              THEA~TORNEYGENERAL
                              OFTEXAS




                              March 26,   1962


Honorable   Edna Cisneros                  Opinion    NO. W-1289
County Attorney
Willacy   County                           Re:     Whether Section       la of
Raymondville;    Texas                             Article    567b, Vernon's
                                                   Penal Code, pertaining
                                                   to the giving      of "hot
                                                   checksw for payment of
                                                   wages or salaries       for
                                                   personal    services,     is
                                                   applicable     when such a
                                                   "hot. check" is passed
                                                   to an independent       con-
Dear Miss      Clsneros:                           tractor    or entrepreneur.

              In your letter   requesting    an opinion        from    this
office     you ask the following    question:~

                "Does Section   la of Article    56i'b, Penal
         Code, pertaining     to the giving   of hot checks
         for payment of wages or salaries        for personal
         services,   apply to a check given to an indep-
         endent contractor     or entrepreneur?"

                With regard    to this question,       you submit     two separate
fact     situations   which    are as follows:

               "A, an independent    contractor,      contracts
         to build an addition    to an existing       building
         for a certain   price;  down the line he runs
         short of money to pay his employees and gets
         a check as an advance on the contract           price
         from the owner of the buiSding,         defendant,     to
         pay AIs laborers    and continues    with completion
         of the work.    The check bounces and Is not made
         good.
                 *A, trucker,   has his own truck and for a
         living,    hauls 25 field    hands around to work and
         back; as compensation,       he receives 50$ per 100
         pounds of cotton      picked by the hands, or a cer-
         tain percentage      of whatever produce they pick;
         he receives     a check from defendant   payable to
Honorable    Edna Clsneros,      page 2 (ml-1289)



      him, which includes    his portion      of the percentage
      on each field   hand and,the    portion    going to the
      25 field  workers.   A takes D’s check and cashes
      it with a 3rd party,    believing     it to be good,
      takes out his pay and distributes         the rest among
      the 25 field  workers,    or else receives      a check
      made payable to him from defendant         covering   his
      portion. ”

           Section    1 was added to the “Hot Check Law”, Article
567b, Vernop’s    Penal Code, by an amendment In 1957.   This
Section readsas     follows:

              “Sec.    la   It shall be unlawful         for any
      person or persons         to make, draw, utter or
      deli,ver,    ‘or to cause or direct         the making,
      drawing,      uttering,     or delivering       of any check,
      draft     or order for the payment of money on
      any bank, person , firm or corporation,                In
      payment of wages or salaries             for personal
      services      rendered,     knowing that the maker,
      drawer or payor does not have sufficient
      funds in or on deposit           with such bank, person,
      firm.or     corporation,      for the payment In full
      of such.check,        draft   or order,     as well as all
      other,than       outstanding     checks,    draftsor
      orders     upon such funds,       and with no good
      reason to believe         the check,     draft,    or order
      would be paid upon presentation              to the per-
      son or bank upon which same war drawn.”

            In each of the fact         situations     submitted,    the
person who was the recipient          of the “hot check” in the first
instance   had the status of an Independent             contractor     or
entrepreneur&      However, it is our opinion           that this class-
ification   is not material        to the applicability       of Section     la.
No where in,,the provisions         of this ,Sectiol-. is there any
requirement    that a recipient       of a “hot check” for wages or
salary for personal       services    rendered     have the status      of an
independent    contractor     or entrepreneur.        Therefore,     it is
our opinion    that the question       of the ap&&icability        of Section
la of Article     567b, Vernon’s      Penal Code, is resolved          without
regard to whether a recipient          has the status       of an independent
contractor    or entrepreneur.
Honorable   Edna Cisneros,   page    3 (b&l-1289)



                         SUMMARY


            The question    of the applicability     of
            Section  la of Article    567b, Vernon's
            Penal Code, is resolved      without  regard
            to whether a recipient      of a "hot check"
            for wages or salaries     for personal
            services   has the status of an indepen-
            dent contractor    or entrepreneur.

                                    Very   truly   yours,

                                    WILL WILSON
                                    Attorney General        of   Texas   ,




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APPROVED:
OPINION COMMITTEE

W. V. Geppert,  Chairman
John Reeves
Riley Eugene Fletcher
Iola Wilcox

REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.
