79R9440 KCR-D
By: Bonnen H.B. No. 746
A BILL TO BE ENTITLED
AN ACT
relating to notice of the presumption for theft by check.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 31.06(b), Penal Code, is amended to read
as follows:
(b) For purposes of Subsection (a)(2) or (f)(3), notice may
be actual notice or notice in writing that:
(1) is sent by:
(A) first class mail if an affidavit of service
evidences that the notice was [(1) is] sent with a return address
affixed and the letter containing the notice is not subsequently
returned unopened;
(B) [by] registered or certified mail with return
receipt requested; or
(C) a public or private express delivery service
with a signed receipt evidencing delivery or a report of delivery
attempt [by telegram with report of delivery requested];
(2) is addressed to the issuer at the issuer's [his]
address shown on:
(A) the check or order;
(B) the records of the bank or other drawee; or
(C) the records of the person to whom the check or
order has been issued or passed; and
(3) contains the following statement:
"This is a demand for payment in full for a check
or order not paid because of a lack of funds or insufficient funds.
If you fail to make payment in full within 10 days after the date of
receipt of this notice, the failure to pay creates a presumption for
committing an offense, and this matter may be referred for criminal
prosecution."
SECTION 2. Section 32.41(c), Penal Code, is amended to read
as follows:
(c) Notice for purposes of Subsection (b)(2) may be actual
notice or notice in writing that:
(1) is sent by:
(A) [registered or certified mail with return
receipt requested, by telegram with report of delivery requested,
or by] first class mail if an affidavit of service evidences that
the notice [the letter] was sent with a return address affixed and
the notice is not subsequently returned unopened [with markings
indicating that the address is incorrect and that there is no
current forwarding order];
(B) registered or certified mail with return
receipt requested; or
(C) a public or private express delivery service
with a signed receipt evidencing delivery or a report of delivery
attempt;
(2) is addressed to the issuer at the issuer's [his]
address shown on:
(A) the check or order;
(B) the records of the bank or other drawee; or
(C) the records of the person to whom the check or
order has been issued or passed; and
(3) contains the following statement:
"This is a demand for payment in full for a check
or order not paid because of a lack of funds or insufficient funds.
If you fail to make payment in full within 10 days after the date of
receipt of this notice, the failure to pay creates a presumption for
committing an offense, and this matter may be referred for criminal
prosecution."
SECTION 3. Article 102.007, Code of Criminal Procedure, is
amended by adding Subsection (g) to read as follows:
(g) In addition to the collection fee specified in
Subsections (b) and (c) of this article, the issuer of a check or
similar sight order is liable for a fee in an amount equal to the
costs of delivery notification, other than notification by
affidavit of service. The cost of delivery notification under this
subsection may not exceed $15. The fee under this subsection must
be collected in all cases described by Subsection (a), and on
receipt of proof of the actual costs expended, the fee shall be
remitted to the holder of the check or similar sight order.
SECTION 4. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTION 5. This Act takes effect September 1, 2005.