By Pitts H.B. No. 576
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to theft by check, issuance of bad checks, and collection
1-3 of processing fees for dishonored checks; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 31.06(a), Penal Code, is amended to read
1-6 as follows:
1-7 (a) If the actor obtained property or secured performance of
1-8 service by issuing or passing a check or similar sight order for
1-9 the payment of money, when the issuer did not have sufficient funds
1-10 in or on deposit with the bank or other drawee for the payment in
1-11 full of the check or order as well as all other checks or orders
1-12 then outstanding, it is prima facie evidence of his intent to
1-13 deprive the owner of property under Section 31.03 (Theft) including
1-14 a drawee or third-party holder in due course who negotiated the
1-15 check or to avoid payment for service under Section 31.04 (Theft of
1-16 Service) <is presumed> (except in the case of a postdated check or
1-17 order) if:
1-18 (1) he had no account with the bank or other drawee at
1-19 the time he issued the check or order; or
1-20 (2) payment was refused by the bank or other drawee
1-21 for lack of funds or insufficient funds, on presentation within 30
1-22 days after issue, and the issuer failed to pay the holder in full
1-23 within 10 days after receiving notice of that refusal.
1-24 SECTION 2. Section 31.06, Penal Code, is amended by adding
2-1 Subsection (f) to read as follows:
2-2 (f) It is expressly intended herein for the drawee, or for a
2-3 third-party holder in due course of a check or order, payment of
2-4 which is refused by the drawee, to have the right to initiate and
2-5 maintain the prosecution of the criminal charges against the maker
2-6 of the check or order, whether or not the original payee consents
2-7 to the action.
2-8 SECTION 3. Section 32.41(d), Penal Code, is amended to read
2-9 as follows:
2-10 (d) If notice is given in accordance with Subsection (c), it
2-11 is presumed that the notice was received no later than five days
2-12 after it was sent. Notice for purposes of Subsection (b)(2) is
2-13 presumed to be received if the notice was:
2-14 (1) sent by first class mail showing the notation,
2-15 "Forwarding and Address Correction Requested";
2-16 (2) addressed to the issuer as provided by Subsection
2-17 (c); and
2-18 (3) returned unopened to the sender by a post office
2-19 with markings indicating that the address is incorrect or that a
2-20 forwarding order has expired.
2-21 SECTION 4. Subchapter E, Chapter 153, Tax Code, is amended
2-22 by adding Section 153.409 to read as follows:
2-23 Sec. 153.409. ISSUANCE OF BAD CHECK TO PERMITTED DISTRIBUTOR
2-24 OR PERMITTED SUPPLIER. (a) A person commits an offense if:
2-25 (1) the person issues or passes a check or similar
2-26 sight order for the payment of money knowing that the issuer does
2-27 not have sufficient funds in or on deposit with the bank or other
3-1 drawee for the payment in full of the check or order as well as all
3-2 other checks or orders outstanding at the time of issuance;
3-3 (2) the payee on the check or order is a permitted
3-4 distributor or permitted supplier; and
3-5 (3) the payment is for an obligation or debt that
3-6 includes a tax under this chapter to be collected by the permitted
3-7 distributor or permitted supplier.
3-8 (b) Sections 32.41(b), (c), (d), (e), and (g), Penal Code,
3-9 apply to an offense under this section in the same manner as those
3-10 provisions are applicable to the offense under Section 32.41(a),
3-11 Penal Code.
3-12 (c) An offense under this section is a Class A misdemeanor.
3-13 (d) A person who makes payment on an obligation or debt that
3-14 includes a tax under this chapter and pays with an insufficient
3-15 funds check issued to a permitted distributor or permitted supplier
3-16 may be held liable for a penalty equal to the total amount of tax
3-17 not paid to the permitted distributor or permitted supplier.
3-18 SECTION 5. Article 102.007(e), Code of Criminal Procedure,
3-19 is amended to read as follows:
3-20 (e) In addition to the collection fee specified in
3-21 Subsection (c) of this article, the county attorney, district
3-22 attorney, or criminal district attorney shall <may> collect the fee
3-23 authorized by Article 9022, Vernon's Texas Civil Statutes, for the
3-24 benefit of the holder of a check or its assignee, agent,
3-25 representative, or any other person retained by the holder to seek
3-26 collection of the check.
3-27 SECTION 6. Article 102.0071, Code of Criminal Procedure, is
4-1 amended to read as follows:
4-2 Art. 102.0071. JUSTICE COURT DISHONORED CHECK. On
4-3 conviction in justice court of an offense under Section 32.41,
4-4 Penal Code, or an offense under Section 31.03 or 31.04, Penal Code,
4-5 in which it is shown that the defendant committed the offense by
4-6 issuing or passing a check that was subsequently dishonored, the
4-7 court shall <may> collect from the defendant and pay to the holder
4-8 of the check the fee permitted by Article 9022, Vernon's Texas
4-9 Civil Statutes.
4-10 SECTION 7. (a) The change in law made by this Act applies
4-11 only to an offense committed on or after the effective date of this
4-12 Act. For purposes of this section, an offense is committed before
4-13 the effective date of this Act if any element of the offense occurs
4-14 before that date.
4-15 (b) An offense committed before the effective date of this
4-16 Act is covered by the law in effect when the offense was committed,
4-17 and the former law is continued in effect for that purpose.
4-18 SECTION 8. This Act takes effect September 1, 1995.
4-19 SECTION 9. The importance of this legislation and the
4-20 crowded condition of the calendars in both houses create an
4-21 emergency and an imperative public necessity that the
4-22 constitutional rule requiring bills to be read on three several
4-23 days in each house be suspended, and this rule is hereby suspended.