SRC-JBJ H.B. 2190 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 2190
By: Hinojosa (Arbrister)
Criminal Justice
5/11/1999
Engrossed


DIGEST 

Currently, a presumption of intent to steal is created when a defendant
passes a check to obtain property and at the time does not have sufficient
funds to cover the payment in full.  In the event that a product is
delivered to a purchaser before the actual receipt of the payment, the
courts have interpreted the Penal Code to require the check to be given
before the exchange of property or services in order for the recipient of
the dishonored check to prove intent to defraud.  Amending the Penal Code
would allow the issuance of a check or similar sight order with
insufficient funds to be used as prima facie evidence of theft in the in
which the check or similar sight order is issued within seven days after
obtaining the property, rather than only when the instrument and property
are simultaneously exchanged.  H.B. 2190 would make the issuance of a check
with insufficient funds to be used as primae facie evidence of theft. 

PURPOSE

As proposed, H.B. 2190 allows the issuance of a check with insufficient
funds to be used as prima facie evidence of theft if issued within a
certain number of days of obtaining the property. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 31.06(a), Penal Code, to allow the issuance of a
check or similar sight order with insufficient funds to be used as prima
facie evidence of theft in the case in which the check or similar sight
order is issued not later than seven days after obtaining the property,
rather than only when the instrument and property are simultaneously
exchanged. 

SECTION 2.  Amends Chapter 31, Penal Code, by adding Section 31.061, as
follows: 

Sec. 31.061.  THREATENING OR PURSUING ACTION TO COLLECT CERTAIN CHECKS.
Prohibits a person from filing or threatening to file a charge, complaint,
or criminal prosecution under Section 31.03, 31.04, or 32.41, based on
nonpayment of a check if the checkwriter gave the check in exchange for a
cash advance and the person making the advance received compensation
exceeding five percent of the amount of the check.  Prohibits this section
from being constructed to authorize the practice of requiring a check to be
given as a security for a loan. 

SECTION 3.Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 4.Emergency clause.