ACM C.S.H.B. 3377 75(R)BILL ANALYSIS CRIMINAL JURISPRUDENCE C.S.H.B. 3377 By: Hinojosa 4-30-97 Committee Report (Substituted) BACKGROUND In today's market place where commissioned agents and/or buyers representatives are frequently used to inspect, select, order and/or take delivery of products, it is not uncommon for a product to be delivered to the purchaser before actual receipt of the payment. This practice is not considered by the parties involved to be the extension of credit but rather is a convenience necessary to doing business and one which insures a rapid and orderly flow of commerce. In the event that a check is issued within a few days as payment for the product and the check is not honored by the financial institution for any reason, Section 31.06 , Penal Code, Presumption of Theft by Check, would ordinarily be applicable. In this case, the recipient of the dishonored check would notify the individual who had issued the check and if it was not made good within 10 days after receipt of notice, the law would consider this as "prima facie evidence" of intent to commit theft. However, the courts have interpreted this section of the Penal Code to require that the exchange of property and issuance of the check be simultaneous. Therefore, the recipient of the dishonored check must prove intent to defraud in order to prosecute the issuer of the check. PURPOSE HB 3377, as substituted, provides that if a person issues or passes a bad or "hot" check or similar sight order for the payment of money, regardless of whether the issuance of the check and the transfer of possession of property were simultaneous, it is prima facie evidence of that person's intent to deprive the owner of property. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subsection (a), Section 31.06, Penal Code to provide that the issuing of a bad or "hot" check or similar sight order, regardless of whether the actor took possession of the property at the same time as the issuing of the check or sight order, is prime facie evidence of the actor's intent to deprive the owner of property. Adds Subsection (g) to provide that if the actor obtains property by promising the delivery of a check or similar sight order by a certain date, the actor's failure to deliver the check or order not later than the seventh day after that date is prima facie evidence of the actor's intent to deprive the owner of property. SECTION 2. Effective Date: September 1, 1997. The change in law made by this act applies only to an offense committed on or after the effective date of this Act. SECTION 3. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The original bill and the substitute contain the same language but the original bill amended Chapter 31, Penal Code, by adding Section 31.07 while the substitute Amends Section 31.06, Penal Code by amending Subsection (a) and adding Subsection (g). The substitute provides that the change in law made by this Act applies only to an offense committed on or after the effective date of this Act. The original bill did not include this language.