Under Texas law, theft by check occurs when a person writes a check in exchange for property, and the check is dishonored (i.e., usually either due to insufficient funds in the account, or because the bank account has been closed). In this situation, the hot check writer has the opportunity to cure the problem prior to having bad check charges filed against him. The person receiving the hot check must notify the person who issued the check, in writing, and give him or her a chance to make good on the check.
After receiving notice, the person who is alleged to have written the check has ten days to make restitution to the person to whom the check was written. If restitution is not made, the law creates a presumption that the person writing the check did so with the intent to defraud the person to whom the check was written, and criminal charges may be filed.
Texas Penal Code Section 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;
(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.
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