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A BILL TO BE ENTITLED
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AN ACT
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relating to notice of the presumption for theft by check. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsection (b), Section 31.06, Penal Code, is |
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amended to read as follows: |
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(b) For purposes of Subsection (a)(2) or (f)(3), notice may |
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be actual notice or notice in writing that: |
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(1) is sent by: |
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(A) first class mail, evidenced by an affidavit |
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of service; or |
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(B) registered or certified mail with return |
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receipt requested [or by telegram with report of delivery
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requested]; |
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(2) is addressed to the issuer at the issuer's [his] |
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address shown on: |
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(A) the check or order; |
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(B) the records of the bank or other drawee; or |
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(C) the records of the person to whom the check or |
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order has been issued or passed; and |
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(3) contains the following statement: |
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"This is a demand for payment in full for a check or order not |
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paid because of a lack of funds or insufficient funds. If you fail |
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to make payment in full within 10 days after the date of receipt of |
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this notice, the failure to pay creates a presumption for |
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committing an offense, and this matter may be referred for criminal |
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prosecution." |
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SECTION 2. Subsection (c), Section 32.41, Penal Code, is |
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amended to read as follows: |
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(c) Notice for purposes of Subsection (b)(2) may be actual |
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notice or notice in writing that: |
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(1) is sent by: |
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(A) [registered or certified mail with return
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receipt requested, by telegram with report of delivery requested,
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or by] first class mail, evidenced by an affidavit of service; or |
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(B) registered or certified mail with return |
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receipt requested [if the letter was returned unopened with
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markings indicating that the address is incorrect and that there is
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no current forwarding order]; |
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(2) is addressed to the issuer at the issuer's [his] |
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address shown on: |
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(A) the check or order; |
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(B) the records of the bank or other drawee; or |
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(C) the records of the person to whom the check or |
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order has been issued or passed; and |
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(3) contains the following statement: |
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"This is a demand for payment in full for a check or order not |
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paid because of a lack of funds or insufficient funds. If you fail |
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to make payment in full within 10 days after the date of receipt of |
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this notice, the failure to pay creates a presumption for |
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committing an offense, and this matter may be referred for criminal |
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prosecution." |
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SECTION 3. Article 102.007, Code of Criminal Procedure, is |
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amended by adding Subsection (g) to read as follows: |
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(g) In addition to the collection fee specified in |
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Subsections (b) and (c), the issuer of a check or similar sight |
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order that has been issued or passed as described by Subsection |
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(a)(1) is liable for a fee in an amount equal to the costs of |
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delivering notification by registered or certified mail with return |
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receipt requested. The fee under this subsection must be collected |
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in all cases described by Subsection (a)(1), and on receipt of proof |
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of the actual costs expended, the fee shall be remitted to the |
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holder of the check or similar sight order. |
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SECTION 4. Subchapter E, Chapter 3, Business & Commerce |
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Code, is amended by adding Section 3.507 to read as follows: |
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Sec. 3.507. DELIVERY NOTIFICATION FEE BY HOLDER OF CHECK OR |
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SIMILAR SIGHT ORDER. (a) On return of a check or similar sight |
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order to the holder following dishonor of the check or sight order |
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by a payor and prior to the check or sight order being referred for |
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prosecution, the holder, the holder's assignee, agent, or |
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representative, or any other person retained by the holder to seek |
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collection of the dishonored check or sight order may charge the |
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drawer or indorser of the check or sight order the cost of delivery |
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notification by registered or certified mail with return receipt |
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requested under Section 31.06 or Section 32.41, Penal Code, as |
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applicable. |
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(b) A person may not charge a delivery notification fee to a |
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drawer or indorser under this section if the fee has been collected |
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under Article 102.007(g), Code of Criminal Procedure. If a |
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delivery notification fee has been collected under this section and |
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the holder subsequently receives a fee collected under Article |
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102.007(g), Code of Criminal Procedure, the holder shall |
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immediately refund the fee previously collected from the drawer or |
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indorser. |
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(c) This section does not affect any right or remedy to |
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which the holder of a check or similar sight order may be entitled |
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under any rule, written contract, judicial decision, or other |
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statute, including Section 3.506. |
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SECTION 5. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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covered by the law in effect when the offense was committed, and the |
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former law is continued in effect for that purpose. For purposes of |
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this section, an offense was committed before the effective date of |
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this Act if any element of the offense was committed before that |
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date. |
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SECTION 6. This Act takes effect September 1, 2007. |