                                                       4,




                             0        EXAS




Hon. H. Me Hooper            Opinion No. O-3473
County attorney              Re:    Where a complaint     has been sworn
Yoakum County                against    a defendant    for swindling    with
Plains, Texas                worthless    check,   is the complainant
                             guilty    of Jaw violation    ifhe    accepts   any
                             money in payment of the check from the
Dear Sir:                    accused?

              This is     to acknowledge    your letter  of recent        date
asking     our opinion     in answer to    the above question.

           In addition     to Section   6 of Article   567b, Vernon’s
Annotated Penal Code, cited       by you, there is no penalty     pro-
vided in the so-called       “Hot Check Law,” which could in any-
wise be applicable     to the complainant.      KS you point out, be-
fore t;hat section    could be invoked,     the complainant  would
have to request    the district     or county attorney   to dismiss
the case.   This section      has not been construed    by our appel-
late aourts as to constitutionality.

              We direct     your   attention   to the provisions     of    arti-
cle   428 of the Penal Code,          which reads as follows:

              “Compounding       a crime

                “Whoever has knowledge that an offense    against
         the penal laws of this State has been committed,
         and shall agree with the offender,     directly  or in-
         directly,   not to prosecute  or inform on him in con-
         sideration   of money or other valuable    thing paid,
         delivered   or promised to him by such offender,     or
         other person for him, shall be fined not less than
         gone hundred nor more than one thousand dollars.*

               To render one liable    for the offense    denounced by
iirticle    428, supra, there would have to be an agreement,            ex-
pressly     or impliedly    made by and between the parties        thereto,
that ,an anticipated       or pending prosecution    would be suppressed
or some effort      made to effect    a suppression   thereof,     by at
least    one of them.      It has been said that a conveyance         of land
made with mere hope that it may avoid a prosecution              for crime
or to mitigate       punishment is insufficient     to render the trans-
action    illegal.     See Ward v. Ward, (Tex.Civ.Qpp.,        Writ dis-
missed)     68 S.W.(2d) 1071.
                ,-




Hon.   H- M. Hooper,   page 2



             We agree with your opinion,      as expressed in your
letter,    that mere acceptance     of part or all of the amount
represented    by a fraudulent    check by the person defrauded
constitutes    no offense   against   the penal laws of this State.

APPROVEDJUL 22, 1941                 Yours   very   truly
/s/ Grover Sellers
FIRST ASSISTANT                      ATTORNEYGENERALOF TEXAS
ATTORNEYGENERAL
                                     By /s/ Benjamin Woodall
@PROVED: OPINION COMMITTEE           Benjamin Woodall, Assistant
BY:      BWB, CHAIRMAN

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