H.B. No. 576
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, Penal Code, is amended by amending
1-6 Subsections (a) and (b) and by adding Subsection (f) to read as
1-7 follows:
1-8 (a) If the actor obtained property or secured performance of
1-9 service by issuing or passing a check or similar sight order for
1-10 the payment of money, when the issuer did not have sufficient funds
1-11 in or on deposit with the bank or other drawee for the payment in
1-12 full of the check or order as well as all other checks or orders
1-13 then outstanding, it is prima facie evidence of his intent to
1-14 deprive the owner of property under Section 31.03 (Theft) including
1-15 a drawee or third-party holder in due course who negotiated the
1-16 check or to avoid payment for service under Section 31.04 (Theft of
1-17 Service) <is presumed> (except in the case of a postdated check or
1-18 order) if:
1-19 (1) he had no account with the bank or other drawee at
1-20 the time he issued the check or order; or
1-21 (2) payment was refused by the bank or other drawee
1-22 for lack of funds or insufficient funds, on presentation within 30
1-23 days after issue, and the issuer failed to pay the holder in full
1-24 within 10 days after receiving notice of that refusal.
2-1 (b) For purposes of Subsection (a)(2) or (f)(3), notice may
2-2 be actual notice or notice in writing that:
2-3 (1) is<,> sent by registered or certified mail with
2-4 return receipt requested or by telegram with report of delivery
2-5 requested;
2-6 (2) is<, and> addressed to the issuer at his address
2-7 shown on:
2-8 (A) <(1)> the check or order;
2-9 (B) <(2)> the records of the bank or other
2-10 drawee; or
2-11 (C) <(3)> the records of the person to whom the
2-12 check or order has been issued or passed; and
2-13 (3) contains the following statement:
2-14 "This is a demand for payment in full for a check
2-15 or order not paid because of a lack of funds or insufficient funds.
2-16 If you fail to make payment in full within 10 days after the date
2-17 of receipt of this notice, the failure to pay creates a presumption
2-18 for committing an offense, and this matter may be referred for
2-19 criminal prosecution."
2-20 (f) If the actor obtained property by issuing or passing a
2-21 check or similar sight order for the payment of money, the actor's
2-22 intent to deprive the owner of the property under Section 31.03
2-23 (Theft) is presumed, except in the case of a postdated check or
2-24 order, if:
2-25 (1) the actor ordered the bank or other drawee to stop
2-26 payment on the check or order;
2-27 (2) the bank or drawee refused payment to the holder
3-1 on presentation of the check or order within 30 days after issue;
3-2 (3) the owner gave the actor notice of the refusal of
3-3 payment and made a demand to the actor for payment or return of the
3-4 property; and
3-5 (4) the actor failed to:
3-6 (A) pay the holder within 10 days after
3-7 receiving the demand for payment; or
3-8 (B) return the property to the owner within 10
3-9 days after receiving the demand for return of the property.
3-10 SECTION 2. Section 32.41(c), Penal Code, is amended to read
3-11 as follows:
3-12 (c) Notice for purposes of Subsection (b)(2) may be actual
3-13 notice or notice in writing that:
3-14 (1) is<,> sent by registered or certified mail with
3-15 return receipt requested, <or> by telegram with report of delivery
3-16 requested, or by first class mail if the letter was returned
3-17 unopened with markings indicating that the address is incorrect and
3-18 that there is no current forwarding order;
3-19 (2) is<, and> addressed to the issuer at his address
3-20 shown on:
3-21 (A) <(1)> the check or order;
3-22 (B) <(2)> the records of the bank or other
3-23 drawee; or
3-24 (C) <(3)> the records of the person to whom the
3-25 check or order has been issued or passed; and
3-26 (3) contains the following statement:
3-27 "This is a demand for payment in full for a check
4-1 or order not paid because of a lack of funds or insufficient funds.
4-2 If you fail to make payment in full within 10 days after the date
4-3 of receipt of this notice, the failure to pay creates a presumption
4-4 for committing an offense, and this matter may be referred for
4-5 criminal prosecution."
4-6 SECTION 3. Subchapter E, Chapter 153, Tax Code, is amended
4-7 by adding Section 153.409 to read as follows:
4-8 Sec. 153.409. ISSUANCE OF BAD CHECK TO PERMITTED DISTRIBUTOR
4-9 OR PERMITTED SUPPLIER. (a) A person commits an offense if:
4-10 (1) the person issues or passes a check or similar
4-11 sight order for the payment of money knowing that the issuer does
4-12 not have sufficient funds in or on deposit with the bank or other
4-13 drawee for the payment in full of the check or order as well as all
4-14 other checks or orders outstanding at the time of issuance;
4-15 (2) the payee on the check or order is a permitted
4-16 distributor or permitted supplier; and
4-17 (3) the payment is for an obligation or debt that
4-18 includes a tax under this chapter to be collected by the permitted
4-19 distributor or permitted supplier.
4-20 (b) Sections 32.41(b), (c), (d), (e), and (g), Penal Code,
4-21 apply to an offense under this section in the same manner as those
4-22 provisions are applicable to the offense under Section 32.41(a),
4-23 Penal Code.
4-24 (c) An offense under this section is a Class C misdemeanor.
4-25 (d) A person who makes payment on an obligation or debt
4-26 that includes a tax under this chapter and pays with an
4-27 insufficient funds check issued to a permitted distributor or
5-1 permitted supplier may be held liable for a penalty equal to the
5-2 total amount of tax not paid to the permitted distributor or
5-3 permitted supplier.
5-4 SECTION 4. (a) The change in law made by this Act applies
5-5 only to an offense committed on or after the effective date of this
5-6 Act. For purposes of this section, an offense is committed before
5-7 the effective date of this Act if any element of the offense occurs
5-8 before that date.
5-9 (b) An offense committed before the effective date of this
5-10 Act is covered by the law in effect when the offense was committed,
5-11 and the former law is continued in effect for that purpose.
5-12 SECTION 5. This Act takes effect September 1, 1995.
5-13 SECTION 6. The importance of this legislation and the
5-14 crowded condition of the calendars in both houses create an
5-15 emergency and an imperative public necessity that the
5-16 constitutional rule requiring bills to be read on three several
5-17 days in each house be suspended, and this rule is hereby suspended.