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.