Chapter 31
Theft
31.8 Instruction—Theft of Services
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of theft of services.
Relevant Statutes
A person commits the offense of theft of services if, with intent to avoid payment for a service that the person knows is provided only for compensation, the person intentionally or knowingly secures performance of the service by deception, threat, or false token, and the value of the service is $[amount] or more but less than $[amount].
Presumption
Under certain circumstances, the law creates a presumption that the defendant had the intent to avoid payment for services. A presumption is a conclusion the law permits you to reach if certain other facts exist.
Therefore, you may find the state has proved the defendant had the intent to avoid payment—the third element specified below—if you find the state has proved, beyond a reasonable doubt, that either—
- the defendant absconded without paying for the service in circumstances in which payment is ordinarily made immediately upon rendering of the service, as in hotels, campgrounds, recreational vehicle parks, restaurants, and comparable establishments; or
- the defendant expressly refused to pay for the service in circumstances in which payment is ordinarily made immediately upon rendering of the service, as in hotels, campgrounds, recreational vehicle parks, restaurants, and comparable establishments.
The facts giving rise to the presumption must be proved beyond a reasonable doubt. If you have a reasonable doubt about the existence of one or more facts giving rise to the presumption, the presumption fails and you are not to consider the presumption for any purpose.
Even if the prosecution has proved the facts giving rise to the presumption beyond a reasonable doubt, you are not required to find that the state has proved the defendant had the intent to avoid payment.
Whether or not the presumption applies, the state must prove, beyond a reasonable doubt, the other three elements of the offense.
Definitions
Service
The term “service” includes—
- labor and professional services; and
- telecommunication, public utility, or transportation services; and
- lodging, restaurant service, and entertainment; and
- the supply of a motor vehicle or other property for use.
Intentionally or Knowingly Secure Performance of a Service by Deception
The defendant secured performance of a service by deception if the defendant engaged in deception and by this deception induced the performance of a service. The defendant engaged in deception if—
[Include only those means of deception supported by the evidence.]
- the defendant created or confirmed by words or conduct a false impression of law or fact that was likely to affect the judgment of another in the transaction and the defendant did not believe this impression of law or fact to be true; or
- the defendant failed to correct a false impression of law or fact that was likely to affect the judgment of another in the transaction, the defendant previously created or confirmed this false impression, and the defendant did not believe this impression of law or fact to be true; or
- the defendant prevented another from acquiring information likely to affect that person’s judgment in the transaction; or
- the defendant promised performance that was likely to affect the judgment of another in the transaction and the defendant either did not intend to perform or knew that he would not perform; or
- the defendant sold or otherwise transferred or encumbered property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment was or was not valid or was or was not a matter of official record.
A person intentionally secures performance of a service by deception if it is the person’s conscious objective to secure the performance of the service by deception.
A person knowingly secures performance of a service by deception if the person is aware the person is securing the performance of the service by deception.
Knowing a Service Is Provided Only for Compensation
A person knows a service is provided only for compensation if the person is aware that the service is provided only for compensation.
Intent to Avoid Payment for Services
A person intends to avoid payment for services if the person has the conscious objective of avoiding the payment for the services.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], by deception, threat, or false token intentionally or knowingly secured performance of a service, namely [insert specific allegations, e.g., spa services], from [name]; and
- the defendant knew the service was provided only for compensation; and
- the defendant intended to avoid payment for the service; and
- the value of the service so secured was $[amount] or more.
You must all agree on elements 1, 2, 3, and 4 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Imprisonment for Debt. Convictions permissible under this offense may be limited by the constitutional prohibition against imprisonment for debt. Article I, section 18, of the Texas Constitution provides: “No person shall ever be imprisoned for debt.”
In Colin v. State, 168 S.W.2d 500 (Tex. Crim. App. 1943), the court of criminal appeals held that article I, section 18, would not necessarily be violated by a conviction under the “hot check” statute even if the check were given for a preexisting debt. Conviction was permissible when—but only when—the facts showed “an intent to defraud.” Colin’s conviction was reversed because the record failed to contain facts showing the required intent to defraud.
Twenty-five years later, in Rhodes v. State, 441 S.W.2d 197, 198 (Tex. Crim. App. 1969), the court upheld a conviction for a crime consisting of obtaining services at a hotel and departing with the intent not to pay for those services. It explained: “[I]t is not the non-payment of the services which is punishable, but it is the act of departure with the intent not to pay for such services which is denounced by the statute as an offense.” Rhodes cited Colin but made no reference to Colin’s apparent requirement of intent to defraud.
Rhodes suggests that any constitutionally required intent to defraud need not exist at the time the services are obtained. What is required under Colin remains somewhat unclear.
Dispute Regarding Payment Due. Evidence that the defendant disputed the quality of the services provided or the amount due for those services apparently goes to whether the state has proved the required culpable mental state.
In Manley v. State, 633 S.W.2d 881, 882–84 (Tex. Crim. App. 1982) (opinion on motion for rehearing), the proof showed that the defendant was dissatisfied with meals served in a restaurant and he requested adjustment of the bill. When the waitress did not return immediately, he left the premises. He did, however, leave his business card with his phone number and a note: “Call me when you decide.” A split court held that the evidence failed to support proof of the “presumed intent” without explaining precisely how.
Theft involving contractual disputes is most often prosecuted as theft of property under Tex. Penal Code § 31.03 or aggregated theft of property under Tex. Penal Code § 31.09. See CPJC 31.1 for a discussion of what must be proved in a prosecution for theft involving a contract.
Definition of “False Token.” There is no statutory definition of the term “false token.” In one unreported case it was defined by the following: “ ‘False token’ is a thing or object or document which is used as a means to defraud and which is of such character that, were it not false, it would commonly be accepted as what it obviously appears and purports to be.” Middleton v. State, Nos. 14-07-00946-CR, 14-07-00947-CR, 2009 WL 196063, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29, 2009, pet. ref’d) (not designated for publication) (appellant did not dispute definition and did not deny that checks involved fell within definition).
Definition of “Abscond.” The presumption in Tex. Penal Code § 31.04(b) applies if the evidence shows the defendant “absconded without paying for the service.” No statutory definition of “abscond” is provided. Manley held the presumption inapplicable under the circumstances of that case and indicated that “abscond” as used in Tex. Penal Code § 31.04(b)(1) requires proof that the defendant left “clandestinely” or “secretly.” Manley, 633 S.W.2d at 882–83.
The Committee believed current law prohibits incorporation of Manley’s definition in the jury instructions.
Comment
Theft of service is prohibited by and defined in Tex. Penal Code § 31.04. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “deception” is from Tex. Penal Code § 31.01(1). The definition of “service” is from Tex. Penal Code § 31.01(6).
Services Obtained by Deception. Tex. Penal Code § 31.04(a) provides for several quite different ways of committing the offense of theft of services. The Committee addressed the instructions appropriate for what it regarded as the primary form of the offense: obtaining services by deception, as defined in Tex. Penal Code § 31.04(a)(1).
Under section 31.04(a)(1), the deception must be the means by which the services are secured. Thus deception—such as presenting as good an insufficient-funds check—after the service is rendered is not sufficient. Daugherty v. State, 387 S.W.3d 654, 666–67 (Tex. Crim. App. 2013); Gibson v. State, 623 S.W.2d 324 (Tex. Crim. App. 1980); Cortez v. State, 582 S.W.2d 119 (Tex. Crim. App. 1979).