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