Definitions and Applicable Law
Issuance of a Bad Check
(f)Except as otherwise provided by this subsection, an offense under this section is a Class C misdemeanor. If the check or similar sight order that was issued or passed was for a child support payment the obligation for which is established under a court order, the offense is a Class B misdemeanor.
An offense under this section is not a lesser included offense of an offense under Section 31.03 or 31.04.
Effective September 1, 1997
PENAL CODE
Sec. 31.01. Definitions.
In this chapter:
(1) "Deception" means:
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
(C)preventing another from acquiring information likely to affect his judgment in the transaction;
(D) selling or otherwise transferring or encumbering 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 is or is not valid, or is or is not a matter of official record; or
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
(2) "Deprive" means:
(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner;
(B) to restore property only upon payment of reward or other compensation; or
(C) to dispose of property in a manner that makes recovery of the property by the owner unlikely.
(3) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:
(A) induced by deception or coercion;
(B) given by a person the actor knows is not legally authorized to act for the owner;
(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;
(D) given solely to detect the commission of an offense; or
(E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.
(4) "Appropriate" means:
(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or
(B) to acquire or otherwise exercise control over property other than real property.
(5) "Property" means:
(A) real property;
(B) tangible or intangible personal property including anything severed from land; or
(C) a document, including money, that represents or embodies anything of value.
(6) "Service" includes:
(A) labor and professional service;
(B) telecommunication, public utility, or transportation service;
(C) lodging, restaurant service, and entertainment; and
(D) the supply of a motor vehicle or other property for use.
(7) "Steal" means to acquire property or service by theft.
Amended effective September 1, 1997 (SB 898).
ISSUANCE OF A BAD CHECK
(a)A person commits an offense if he issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.
(b)This section does not prevent the prosecution from establishing the required knowledge by direct evidence; however, for purposes of this section, the issuer's knowledge of insufficient funds is presumed (except in the case of a postdated check or order) if:
(1)he/she had no account with the bank or other drawee at the time he issued the check or order; or
(2)payment was refused by the bank or other drawee for lack of funds or insufficient funds on presentation within 30 days after issue and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal.
(c)Notice for purposes of Subsection (b)(2)may be actual notice or
notice in writing that:
(1)is sent by registered or certified mail with return receipt requested, by telegram with report of delivery requested, or by first class mail if the letter was returned unopened with markings indicating that the address is incorrect and that there is no current forwarding order;
(2)is addressed to the issuer at his address shown on:
(A)the check or order;
(B)the records of the bank or other drawee; or
(C)the records of the person to whom the check or order has been issued or passed; and
(3)contains the following statement: "This is a demand for payment in full for a check or order not paid because of a lack of funds or insufficient funds. If you fail to make payment in full within 10 days after the date of receipt of this notice, the failure to pay creates a presumption for committing an offense, and this matter may be referred for criminal prosecution."
(d)If notice is given in accordance with Subsection (c), it is presumed that the notice was received no later than five days after it was sent.
(e)A person charged with an offense under this section may make restitution for the bad checks. Restitution shall be made through the prosecutor's office if collection and processing were initiated through that office. In other cases restitution may, with approval of the court in which
the offense is filed, be made through the court.
(f)Except as otherwise provided by this subsection, an offense under this section is a Class C misdemeanor. If the check or similar sight order that was issued or passed was for a child support payment the obligation for which is established under a court order, the offense is a Class B misdemeanor.
An offense under this section is not a lesser included offense of an offense under Section 31.03 or 31.04.
Effective September 1, 1997
You may charge a reasonable fee not to exceed $25.00.
Vernon's Texas Civil Statutes
Art. 9022. Processing fee by holder of dishonored check.
(a) The holder of a check or its assignee, agent, representative, or any other person retained by the holder to seek collection of the face value of the dishonored check on return of the check to the holder following its dishonor by a payor may charge the drawer or endorser a reasonable processing fee, which shall not exceed $25. A person may not charge a processing fee to a drawer or endorser under this subsection if the fee has been collected under Article 102.007(e) or Article 102.0071, Code of Criminal Procedure. If a processing fee has been collected under this subsection and the holder subsequently receives a fee collected under Article 102.007(e) or Article 102.0071, Code of Criminal Procedure, the holder shall immediately refund the fee previously collected from the drawer or endorser. Notwithstanding any other provisions of law, a loan agreement made under Chapter 3 or 4, Title 79, Revised Statutes (Article 5069-1.01 et seq.,
Vernon's Texas Civil Statutes), may provide that on return of a dishonored check given in payment under the agreement, the holder may charge the obligor under the agreement the processing fee authorized by this Act, and the fee may be added to the unpaid balance owed under the agreement, except that interest may not be charged on the fee during the term of the agreement.
(b) Nothing herein shall be construed as affecting any right or remedy to which the holder of a check may be entitled under any rule, regulation, written contract, judicial decision, or other statute.
A debtor who files a bankruptcy petition is protected from further collection attempts. That protection is called the automatic stay. If the person who wrote you a bad check has filed for bankruptcy protection, you are likely to be listed as a creditor and the Bankruptcy Court will
consider you a creditor even though you did not voluntarily extend credit. If you receive notices from the Bankruptcy Court, you must respond to the notices in order to protect your interests. Should you ignore the notices, you risk forfeiting any further opportunity to collect restitution for the check. If you are listed as a creditor, whether the case is still pending or already closed, you will need to contact the Bankruptcy Court to determine what steps you may take to collect the money owed to you. The bankruptcy court, however, provides no protection from criminal prosecution for crimes the debtor may have committed, including theft by check or issuance of a bad check. A judge or jury in a state court can find the check writer guilty and levy the appropriate sentence and restitution may be ordered. You may file a complaint with us for the theft if the transaction meets the criteria for theft by check. Let us know that the check writer filed a case in the bankruptcy court when you submit the complaint. Please make copies of any correspondence you receive regarding the bankruptcy case and forward the copies to us so that we may include the information in our case file.
If you have received notice that we will not be able to prosecute the case you submitted, you may be able to file a civil suit. Your documents will be returned to the address on your complaint form.
Contact Information
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