I
: TREA~TORNEY GENERAL
OFTEXAS
Aumrmr. -CI 78711
July 25, 1974
The Honorable Tim Curry Opinion No. H- 356
Criminal Dirtrict Attorney
Tarrant County Courthoure Re: Whether theft provisions
Fort Worth. Texas 76102 of the new Penal Code are
applicable to situation where
worthlear check ir given for
apartment rental, etc.
Dear Mr. Curry:
You ask whether and in what circumrtancer a perron who given a
worthless check in payment for rental of an apartment or other real
property may be subject to prosecution under the theft proviaionr of the
new Penal Code, s 4 31.01 et req., V. T. P. C. There ia no question that
in thi6 situation the actor could be prorecuted for innuance of a bad check
under $32.41 of the Code, a violation of which is punishable’ae a Clasa C
misdemeanor. The aeriourners of an offense under the theft provisions,
on the other hand, can be as much as a second degree felony depending
on the value of what is rtolen.
Of the various theft provisions contained in the new Code,. the one
most relextnt to your inquiry ia 5 31.04 which establisher and defines a
relatively novel offense entitled “theft of rervice. ” In pertinent part
0 31.04 provides:
(a) A person commits theft of service if, with
intent to avoid payment for service that he knows is
provided only for compensation:
(1) he intentionally or knowingly secures performance
of the service by deception, threat or false token;
p. 1674
The Honorable Tim Curry page 2 (H-356)
In 5 31.01 (7) (D) “service” is defined so as to include “the supply of a
motor vehicle or other property for use. ” Under 5 31.01 (6) (A) “property”
includes “real property. ” Thus under 5 31.04 and the definitions ac-
companying it the supply of real property for use is considered a service,
and one who secures performance of such a service by deception, threat,
or false token is guilty of theft of service.
Traditionally the stealing of real property has not been classified
as a theft offense. At common law the crime of theft and related offenses
such as larceny, embezzlement, and false pretenses were designed to
impose sanctions against the wrongful acquisition of property, but property
was narrowly defined so that only tangible personal property and money
were included within its scope. Real property, labor, and services were
not covered. LaFave and Scott, Criminal Law, pp. 633 and 665 (1972).
As a result one who defrauded another of title to land or who walked out
on his tavern bill was not guilty of theft. In order to plug the loopholes
in the law of theft caused by the limited definition of property prevailing
under the common law, legislatures in statea which adopted the common
law were forced to enact a variety of scattered offenses covering the
wrongful procurement of specific services and other things of value,
Texas was no exception in this regard. See, e.g., Arts. 9780, 1137e, 1137e-1,
1137g. 1545. 1551 and 1553a, Texas Penal Code (1925). See generally
LaFave and Scott, supra, pp. 618-678.
When it enacted the new Penal Code, the 63rd Legislature consolidated
most of these scattered offenses into 0 31.04. a single comprehensive
offense aimed at proscribing the acquisition of services without paying
for them and entitled ‘!theft of service. ” In s 31.01 “service” is broadly
defined so as to include almost. anything that is ordinarily provided for
compensation but that was traditionally excluded from the crime of theft
because it was not classified as personal property.
It has increasingly been recognized that one who rents property to
another for housing is providing a service not unlike that provided by hotels
and boarding houses. Rather than being a conveyance of a nonfreehold
p. 1675
The Honorable Tim Curry page 3 (H-356)
estate, a modern lease agreement, especially in the urban residential
context, more nearly resembles a contract in which housing is given in
exchange for rent. Developments in Contemporary Lsndlord-Tenant Law,
26 Vanderbilt L. Rev. 689 (1973). The State Bar.Committee which
drafted and proposed the new Penal Code apparently recognized that leases
are often very similar to service contracts and accordingly concluded
that it would be appropriate to proscribe the wrongful acquisition of housing
pursuant to one of them under the theft of service offense established by
i 31.04.
In its comments on § 31.04 the committee stressed a broad defini-
tion of service and specifically noted that the rental of property was to be
included within it. State Bar Committee, Texas Proposed Penal Code.
Final Draft, 0 31.04, p. 222 0970). Furthermore the committee indicated
that the theft of service statute was intended to replace Art. 1553a of the
old Penal Code which made it unlawful to obtain housing by trick or fraud
as follower:
Section 1. Every person who shall obtain
occupancy of any house, duplex, or apartment by
means of fraud, trick, deception, false or fraudu-
lent representationa, statement or pretense or who
shall gain occupancy without permission of the owner
or his agent, or who shall give in payment for rental
a worthless check or who shall stop payment on a
check for rent then due and not in controversy shall
be guilty of a misdemeanor and shall be fined not
exceeding $200.00, or be imprisoned in the county
jail not exceeding 30 days, or both.
The commentary of the committee was before the Legislature when it
enacted 5 31.04 substantially as propos,ed by the committee. Therefore
it is an authoritative indication of what conduct the Legislature intended
to be made criminal by the new theft of service offense. 53 TEX. JUR.2d.
statutes, 0 174,~. 254.
p. 1676
The Honorable Tim Curry page 4 (H-356)
Under f 31.04, then, one who secures the use of real property
by deception, threat, or false token is guilty of theft of rervice. The
only remaining question is whether one who pays his apartment rent
with a bad check has secured the use of the premises by deception, threat,
or false token.
It is a well-settled common law rule that, in the absence of express
words to the contrary, possession of premises under a lease is not contin-
gent upon the payment of rent. Bertrand v. Pate, 284 S. W. 2d 802 (Tex.
Civ. App., Eastland 1955, no writ) and Shepherd v. Sorrells, 182 S. W.
2d 1009 (Tex. Civ. App., Eastland 1944, no writ). The lessee does not
forfeit his right to use the premises by failing to pay rent and cannot be
ejected until there has been a formal demand for payment made in accordance
with the strict rules of the common law. Shepherd, 182 S. W. 2d at 1011.
Under such a lease it cannot be said that the use of the property is secured
by the payment of rent, and therefore the lessee could not be prosecuted
for theft of service if he intentionally paid the rent with a worthless check.
But modern leasing arrangements often contain express language
that changes the common law rule and plainly makes use of the premises
contingent upon the payment of rent. Under such an agreement it is
understood by both parties that the use of the property is obtained only
on condition that the rent ia. paid on time, and in our opinion if the lessee
were intentionslly to pay his rent with a wixthless check, he would be
securing the use of the premises by false token and could be prosecuted
for theft of service under 5 31.04. Thus under many modern leases one
who knowingly pays his rent with a worthless check runs the risk of.
prosecution for theft of service. In this regard 5 31.06 of the new
Code establishes a presumption of guilty knowledge when services are
secured by passing a worthless check. Of course this presumption is
not conclusive on the question of intent since it remains a matter to be
determined by the jury. Section 2.05. V. T. P. C.
SUMMARY
Under $31.04 one who secures the use of rental
property by deception, threat, or false token is guilty
p. 1677
;
The Honorable Tim Curry page 5 (H-356)
of theft of service. When the tenant’s right to
possession under a lease is expressly made
contingent upon the payment of rent, the tenant
is subject to prosecution for theft of service, if
he knowingly pays his rent with a worthless check.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1678