Hon. Dan W. Jackson
Criminal Distriat Attorney
Houston, T e x * 8

                               htt'nr Palmer Hutoheson, Jr.

Daar Sir:                       Opinion No. O-2334
                                Ret IO the endorser ever liable on a hot
                                     check tider Art. 667b, Seotions 1, 2
                                     and 3 ofthe,Penal Code? And related
                                     questions.

         Your recent request for an opinion of this deprrtmnt on the
questions a8 are herein stated has been received.

           Wa quote the questions presented in your inquiry LU follows:

        "Under 4x%, 567b, Sections 1, 2 and 3, is the endorser
    ever liable? If so, is this liability limited to oases where
    the endorser,oan be shorn to have had a part iu the plan to
    pass the oheok, or may it extend to oases where no suoh proof
    08x1be made, but where the check is not paid on presentation
    and is nwee paid, up to the time of trialY In other words,
    does the presentation of the check for payment, and non-payment
    of it, oonstituts prjma facie evidence in the aam way that it
    does against one who 'draw8 or gives* the check?"

        "Wnen a check, &ether given simultaneously with a receipt
    of the merchandise or other things for which it is issued, or
    given at a later date in payment for such things, is dated with
    a date subsequent to the date on which it is aotually given and
    where this fact is understood by %oth parties, isthe giver of the
    oheck criminally liable under Mt. 567b, if the check is later
    returned because of insufficient funds, or other similar reason?"

           Seations 1, 2 and 3 of Art, 567b of the Penal Coda reads as
followss
Ron, Dan We Jackson, page 2   (O-2334)



        "4x-t.567b3. OBTAIBING !dOKKY,GOODS, ETC., WITR IL
                     TEPl'~DEFRAUD.BYGNINGORDR4RXRG



        Section lo It shall be unlawful for any person, with
        intent to defraud, to obtain any money, goods, servioe,
        labor, or other thing of value by giving or drawing any
        cheek, draft, or order upon any bwk; pereon, firm or
        corporation, if sv.qh@arson does not, at the time said
        cheek, drafh, .or order is 80 draar, have sufficient
        funds with such bank, person, firm or corporation  to
        pay such oheok, draft, or ordsr, and all other oheoks,
        drafts, or orders upon said funds outstanding at the
        time such aheok, draft, or order ma8 given or dram;
        provided that if suoh oheok, draft, or order is not
        paid upon presentation, the nonpayment of 8ama shall
        be prima faoia evidence that such person giving or
        drawing snah check, draft, or order had iasuffioient
        funds with the dranae to pay same at the time the said
        oheok, draft, or order ma8 given or dram and that
        said person gave or drew such oheok, draft or order
        with intent to defrauds and provided further that
        proof of the dapoaritof said aheok, draft, or order
        with a bank for colleotion in the ordinary ohanne
        of trade and the return of said check, draft, or order
        unpid to the person mahing such deposit shall %a prima
        facie evidence of presentation to, and nonpayment of
        said ahsok, draft, or order by, the l%nk, person, firm,
        or oorporation upon whom it nas drawn8 and provided
        further that where suah ohe&, draf’t, or order has twen
        pmtestsd,the notioe of protest thereon shall be ad-
        missi%le as proof of presentation and nonpayment and
        shall be prima facie evidence that said obeok, draf't,
        or order was presented to the %ank, person, firm or
        corporation upon whioh it was drawn andwas not paid.

         "GIVING ORDRMIm    CHECK, DRMTOR   ORDERIIITROUTSUF-
               FICIEMT FUND6

         sea. 2,  It shall be unlawful for any person, with in-
         tent to defraud, to pay for any goods, servioe, labor,
         or other thing of value, theretofore received, by giv-
         ing or drawing any check, draft, or order upon any bank,
         person, firm, or corporation, if suoh person doesrnot,
         at the time said aheok, draft, or order is so given or
         drawn, have sufficient funds 6th such bank, pereon,
         firm, or corporation to pay suoh check, draft, or order,
-   -




        Hon. Dan W. Jaokson, page 3 (O-2334)



                and all other checks, drafts, or orders upon said
                funds outstanding at the time such oheok, draft, or
                order is notpaid upon presentation, the nonpayment
                of same shall be prima facie evidence that such pr-
                son giving or drawing such check, draft, or order
                had insufficient funds with the drams to pay sme
                at the time the check, draft, or order 1~8 given or
                dram and that said person gave such oheok, draft
                or order with intent to defraud3 and provided further
                that proof of the de&sit of said check, draft or
                order with a bank for collection in the ordinary ohan-
                4lC3lS  of trade and the return of said check,
                draft, or order unpaid to the person making such de-
                posit 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 uas
                dram; and provided further that where such check,
                draft, or order has been protested, the notice of pro-
                test thereof shall be admissible as proof of presenta-
                tiqu and nonpayment and shall be prima facie evidence
                that said aheck, draft, or order was presented to the
                bank, person, firm or corporation upon tiich it was
                dram and was not paid.

                "POSSESSION OF PWSONAL PROPERTY SUBJECT TO LIEN, OBTAINED
                      BY CHECK, DPAFT OR ORDER AGAINST INSUF'FICIEN'I
                                                                   FUNDS

                sec. 3. It shall be unlawful for any person, with intent
                to defraud, to secure or retain possession of any personal
                property, to which a lien has attached, bythe drawing or
                giving of 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 suf-
                fioient funds with such bank, person, fim, ok 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 so given or dram; provided that
                if such check, draft, or order is not paid upon presentation,
                the nonpayment of aame shall be prima facie evidence that
                such person giving or drawing such check, draft, or order
                hadi;iinsufficie&funda with the drawee to pay same at the
                time the said cheek, draft, or order was given or dram and
                that said peison gave such check, draft, or order with in-
                tent to defrauds and provided further that proof of deposit
                of said ohsok, draft, or order with a tank for collection
                in the ordinary channels of trade and the return of said
                check, draft, or order unpaid to the person making such
                deposit shall be prima facie proof of presentation to, and
                nonpayment of said check, draft, or order by, the kank,
                person, firm, or corporation upon which it was drawn3
Ron. Dan W. Jackson, page 4   (0-23;4)



        and provided further that where such check, draft
        or order has been protested, the notice of protest
        thereof shall be admissible as proof of presenta-
        tion and nonpayment end shall be prima facie evidence
        that said check, draft, or order was premsnted to the
        bank, person, firm, or oorporatidn upon which it was
        dram and was not paid; and provided further that the
        removal of such personal property from the premises
        upon which it was located at the time such check,
        draft, or order was drawn or given, shall be prima
        facie evidenoe that poseession of such property wae
        retained or secured bythe giving or drawing of said
        check, draft, or order."

         Nith reference to subdivision 4, Art. 1646, of the Penal Code,
we quote frcssTax. Jur., vol. 39, p.p. 1076, 1076, as follows~

         "8 26. CBECKS DRAWN BY PERSONS OTHER THAN 4CCtJSED--
           INDORSERS... While a conviction will not ordinarily
         be sustai&d where the check was draw by some person
         other than the accused, it is not neoessarythatthe
         oheck be drawn or signed by the accused if he had
         guilty knowledge of its lrorthlesscharacter, It has
         been said that the statute, although making no.spefioio
         rcferenoe to an indorser, is broad enough to cover an
         indorser if he eas a party to the fraud by connivance,
         agreement or conspiraoy. Rowever this may be, it has
         been held that an indorser who stated in good faith
         that the cheek was good could not bs convicted under
         the statute where, on learning that the paper was worth-
         less, he deposited sufficient funds in the bank to meet
         it before it would be presented in the ordinary course
         of bu5inas.s~"

         JAMES va STATE, 257 S.We 866;
         MOORE vo STATE, 219 S.ll.1097;
         D4wBoN V* STATE, 165 S.W. 675.

         In answer to your first question, you arc respeotfully advised
that it is the opinion of this department that the endorser is criminal-
ly liable only in those oases where he was a party to the fraud by con-
nivance, agreement or conspiracy and where the endorser can bs showo to
have had a part in the plan to pass the check, draft, or order so dram,
upon any bank, person, firm or corporation.

         In the case of LLOYD v. STATE, 266 S.W. 765, it was held that a
party issuing a check under an agreement not to present the seme for pay-
ment, where no more representations were made than implied by delivery
Hon. Dan W. Jaokron,   page 5      (O-2334)



of the check and the request that its presentations be delayed and
that there muld be no funds in the bank until that date, did not
oanstitute swindling, under Vernon's Annotated Penal Code, 1916,
Art. 1422, Subdivision 4, as to obtaining property upon giving e.
o%ck without reason to believe that it would be paid when present-
ed.

         It will be noted that Art. 567b, supra, speoifically pro-
vides that --
         11   . it shall ba unlawful for any person with intent
     to d&&d    . , . by giving or drawing any aheak, draft or
     order upon my bank, person, firm, or corporation, if such
     person does not at the time said ohaok, draft, or order is
     so dram have suffiaient funds with such bank, person, firm,
     or corporation to pay such chsok, draft or order, and all
     other checks, drafts or orders upon said funds outstanding
     at the time suoh ohsok, draft or order was so given or
     dram . . . "

         When any person gives a "post-dated" oheok it is evident
that suoh person does not have sufficient funds on deposit with the
bank, firm, parson, association or corporation at the time of giving
to pay the seme.

         You are respeotfully advised that it is the opinion of this
department that when any person gives a post-dated check, draft, or
order and where this fact is understood by all parties, the person
giving the check, draft, or order is not criminally liable under Art.
567b of the Penal ,mde, although the oheck, draft or order is later
returned because insufficient funds, or other similar reasons.

         We rant to thank you for the able brief submitted with your
inquiry, which has materially assisted us in answering your inquiry.

         Trusting that the foregoing satisfaatorily answers your
questions, we are

                                              Yours very truly

                                         ATTGRXEXGERERALOFTE!XAS

                                        By s/Al-dell uilliams

                                               Ardell xilliams
APPROVEDMAY 31, 1940                              Assistant
s/ Grover Sellers
FIRST ASS&!X!ANTATTORNEY GENERAL
AW: ob:e&v                          Approved Opinion Committee
                                    By BUB Chairman
