Friday, March 6, 2015

PRESUMPTION FOR THEFT BY CHECK

THEFT BY CHECKSec. 31.06.  PRESUMPTION FOR THEFT BY CHECK.  (a)  If the actor obtained property

or secured performance of service by issuing or passing a check or similar sight order for the payment of money, when the issuer did 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 then outstanding, it is prima facie evidence of his intent to deprive the owner of property under Section 31.03 (Theft) including a drawee or third-party holder in due course who negotiated the check or to avoid payment for service under Section 31.04 (Theft of Service) (except in the case of a postdated check or order) if:

(1)  he 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.

(b)  For purposes of Subsection (a)(2) or (f)(3), notice may be actual notice or notice in writing that:

(1)  is sent by:

(A)  first class mail, evidenced by an affidavit of service; or

(B)  registered or certified mail with return receipt requested;

(2)  is addressed to the issuer at the issuer's 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."

(c)  If written notice is given in accordance with Subsection (b), it is presumed that the notice was received no later than five days after it was sent.

(d)  Nothing in this section prevents the prosecution from establishing the requisite intent by direct evidence.

(e)  Partial restitution does not preclude the presumption of the requisite intent under this section.

(f)  If the actor obtained property by issuing or passing a check or similar sight order for the payment of money, the actor's intent to deprive the owner of the property under Section 31.03 (Theft) is presumed, except in the case of a postdated check or order, if:

(1)  the actor ordered the bank or other drawee to stop payment on the check or order;

(2)  the bank or drawee refused payment to the holder on presentation of the check or order within 30 days after issue;

(3)  the owner gave the actor notice of the refusal of payment and made a demand to the actor for payment or return of the property;  and

(4)  the actor failed to:

(A)  pay the holder within 10 days after receiving the demand for payment;  or

(B)  return the property to the owner within 10 days after receiving the demand for return of the property.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1991, 72nd Leg., ch. 543, Sec. 2, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994;  Acts 1995, 74th Leg., ch. 753, Sec. 1, eff. Sept. 1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 976, Sec. 1, eff. September 1, 2007.

 Andy Nolen and Associates offer a full range of affordable legal services in criminal defense, juvenile defense and family law areas, ranging from representation in court on all juvenile and adult criminal cases, sealing or expunging records for qualified people, obtaining occupational driver’s licenses to litigating child custody and divorce cases.  To schedule an appointment or to discuss your situation with an experienced Houston criminal attorney, Houston juvenile attorney or Houston family law attorney, call 832-480-8951 right now.
 
 

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