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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