Case Information
*1 4, EXAS 0 Opinion No. O-3473
Hon. H. Me Hooper Re: Where a complaint has been sworn County attorney Yoakum County against a defendant for swindling with worthless check, is the complainant Plains, Texas
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. to Section 6 of Article 567b, Vernon’s
In addition 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 for him, shall be fined not less than other person gone hundred nor more than one thousand dollars.* To render one liable for the offense denounced by 428, supra, iirticle 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- See Ward v. Ward, (Tex.Civ.Qpp., Writ dis- action illegal. missed) 68 S.W.(2d) 1071. *2 ,-
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. APPROVED JUL 22, 1941 Yours very truly Sellers /s/ Grover
FIRST ASSISTANT ATTORNEY GENERAL OF TEXAS ATTORNEY GENERAL
By /s/ Benjamin Woodall @PROVED: OPINION COMMITTEE Benjamin Woodall, Assistant BY: BWB, CHAIRMAN
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