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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Section 31.03,
Penal Code, is amended by amending Subsection (e) and adding Subsection
(e-1) to read as follows:
(e) Except as provided by
Subsection (f), an offense under this section is:
(1) a Class C misdemeanor if
the value of the property stolen is less than:
(A) $50; or
(B) $20 and the defendant
obtained the property by issuing or passing a payment device [check
or similar sight order] in a manner described by Section 31.06;
(2) a Class B misdemeanor
if:
(A) the value of the
property stolen is:
(i) $50 or more but less
than $500; or
(ii) $20 or more but less
than $500 and the defendant obtained the property by issuing or passing a payment
device [check or similar sight order] in a manner described by
Section 31.06;
(B) the value of the
property stolen is less than:
(i) $50 and the defendant
has previously been convicted of any grade of theft; or
(ii) $20, the defendant has
previously been convicted of any grade of theft, and the defendant obtained
the property by issuing or passing a payment device [check or
similar sight order] in a manner described by Section 31.06; or
(C) the property stolen is a
driver's license, commercial driver's license, or personal identification
certificate issued by this state or another state;
(3) a Class A misdemeanor if
the value of the property stolen is $500 or more but less than $1,500;
(4) a state jail felony if:
(A) the value of the
property stolen is $1,500 or more but less than $20,000, or the property is
less than 10 head of sheep, swine, or goats or any part thereof under the
value of $20,000;
(B) regardless of value, the
property is stolen from the person of another or from a human corpse or grave,
including property that is a military grave marker;
(C) the property stolen is a
firearm, as defined by Section 46.01;
(D) the value of the
property stolen is less than $1,500 and the defendant has been previously
convicted two or more times of any grade of theft;
(E) the property stolen is
an official ballot or official carrier envelope for an election; or
(F) the value of the
property stolen is less than $20,000 and the property stolen is:
(i) aluminum;
(ii) bronze;
(iii) copper; or
(iv) brass;
(5) a felony of the third
degree if the value of the property stolen is $20,000 or more but less than
$100,000, or the property is:
(A) cattle, horses, or
exotic livestock or exotic fowl as defined by Section 142.001, Agriculture
Code, stolen during a single transaction and having an aggregate value of
less than $100,000; or
(B) 10 or more head of
sheep, swine, or goats stolen during a single transaction and having an
aggregate value of less than $100,000;
(6) a felony of the second
degree if:
(A) the value of the
property stolen is $100,000 or more but less than $200,000; or
(B) the value of the
property stolen is less than $200,000 and the property stolen is an
automated teller machine or the contents or components of an automated
teller machine; or
(7) a felony of the first
degree if the value of the property stolen is $200,000 or more.
(e-1) In this section,
"payment device" has the meaning assigned by Section 3.506,
Business & Commerce Code.
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No
equivalent provision.
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SECTION 2. Section 31.04(g),
Penal Code, is amended to read as follows:
(g) It is a defense to
prosecution under this section that:
(1) the defendant secured
the performance of the service by giving a postdated payment device, as
defined by Section 3.506, Business & Commerce Code, [post-dated
check or similar sight order] to the person performing the service; and
(2) the person performing
the service or any other person presented the payment device [check
or sight order] for payment before the date on the payment device
[check or sight order].
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No
equivalent provision.
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SECTION 3. The heading to
Section 31.06, Penal Code, is amended to read as follows:
Sec. 31.06. PRESUMPTION FOR
THEFT BY PAYMENT DEVICE [CHECK].
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SECTION 1. The heading to
Section 31.06, Penal Code, is amended to read as follows:
Sec. 31.06. PRESUMPTION FOR
THEFT BY CHECK OR SIMILAR SIGHT ORDER.
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SECTION 4. Sections
31.06(a), (b), and (f), Penal Code, are amended to read as follows:
(a) If the actor obtained
property or secured performance of service by issuing or passing a payment device, as defined by Section 3.506,
Business & Commerce Code, [check
or similar sight order] for the payment of money, when the
issuer did not have sufficient funds in or on deposit with the bank or
other drawee for the payment in full of the payment device [check or
order] as well as all other payment
devices [checks or orders]
then outstanding, it is prima facie evidence of the issuer's [his]
intent to deprive the owner of property under Section 31.03 (Theft)
including a drawee or third-party holder in due course who negotiated the payment device [check] or to avoid payment for service under Section
31.04 (Theft of Service) (except in the case of a postdated payment device [check or order]) if:
(1) the issuer [he]
had no account with the bank or other drawee at the time the issuer
[he] issued the payment device [check or order]; or
(2) payment was refused by
the bank or other drawee for lack of funds or insufficient funds, on
presentation within 30 days after issue, and the issuer failed to pay the
holder in full within 10 days after receiving notice of that refusal.
(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,
evidenced by an affidavit of service; or
(B) registered or certified
mail with return receipt requested;
(2) is addressed to the
issuer at the issuer's address shown on:
(A) the payment device
[check or order];
(B) the records of the bank
or other drawee; or
(C) the records of the
person to whom the payment device [check or order] has been
issued or passed; and
(3) contains the following
statement:
"This is a demand for
payment in full for a payment device [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."
(f) If the actor obtained
property by issuing or passing a payment device [check or similar
sight order] for the payment of money, the actor's intent to deprive
the owner of the property under Section 31.03 (Theft) is presumed, except
in the case of a postdated payment device [check or order],
if:
(1) the actor ordered the
bank or other drawee to stop payment on the payment device [check
or order];
(2) the bank or drawee
refused payment to the holder on presentation of the payment device
[check or order] within 30 days after issue;
(3) the owner gave the actor
notice of the refusal of payment and made a demand to the actor for payment
or return of the property; and
(4) the actor failed to:
(A) pay the holder within 10
days after receiving the demand for payment; or
(B) return the property to
the owner within 10 days after receiving the demand for return of the
property.
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SECTION 2. Section 31.06(a),
Penal Code, is amended to read as follows:
(a) If the actor obtained
property or secured performance of service by issuing or passing a check or
similar sight order for the payment of money, when the issuer did not have
sufficient funds in or on deposit with the bank or other drawee for the
payment in full of the check or order
as well as all other checks or orders then outstanding, it is prima facie
evidence of the issuer's [his] intent to deprive the owner of
property under Section 31.03 (Theft) including a drawee or third-party
holder in due course who negotiated the check
or order or to avoid payment for service under Section 31.04
(Theft of Service) (except in the case of a postdated check or order) if:
(1) the issuer [he]
had no account with the bank or other drawee at the time the issuer
[he] issued the check or sight
order; or
(2) payment was refused by
the bank or other drawee for lack of funds or insufficient funds, on
presentation within 30 days after issue, and the issuer failed to pay the
holder in full within 10 days after receiving notice of that refusal.
No
equivalent provision.
No
equivalent provision.
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SECTION 5. The heading to
Section 32.41, Penal Code, is amended to read as follows:
Sec. 32.41. ISSUANCE OF BAD PAYMENT DEVICE [CHECK].
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SECTION 3. The heading to
Section 32.41, Penal Code, is amended to read as follows:
Sec. 32.41. ISSUANCE OF BAD CHECK OR
SIMILAR SIGHT ORDER.
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SECTION 6. Sections
32.41(a), (b), (c), (e), and (f), Penal Code, are amended to read as
follows:
(a) A person commits an
offense if the person [he] issues or passes a payment
device, as defined by Section 3.506, Business & Commerce Code, [check
or similar sight order] for the payment of money knowing that the
issuer does not have sufficient funds in or on deposit with the bank or
other drawee for the payment in full of the payment device [check
or order] as well as all other payment devices [checks or
orders] outstanding at the time of issuance.
(b) This section does not
prevent the prosecution from establishing the required knowledge by direct
evidence; however, for purposes of this section, the issuer's knowledge of
insufficient funds is presumed (except in the case of a postdated payment
device [check or order]) if:
(1) the issuer [he]
had no account with the bank or other drawee at the time the issuer
[he] issued the payment device [check or order]; or
(2) payment was refused by
the bank or other drawee for lack of funds or insufficient funds on
presentation within 30 days after issue and the issuer failed to pay the
holder in full within 10 days after receiving notice of that refusal.
(c) Notice for purposes of
Subsection (b)(2) may be actual notice or notice in writing that:
(1) is sent by:
(A) first class mail,
evidenced by an affidavit of service; or
(B) registered or certified
mail with return receipt requested;
(2) is addressed to the
issuer at the issuer's address shown on:
(A) the payment device
[check or order];
(B) the records of the bank
or other drawee; or
(C) the records of the
person to whom the payment device [check or order] has been
issued or passed; and
(3) contains the following
statement:
"This is a demand for
payment in full for a payment device [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."
(e) A person charged with an
offense under this section may make restitution for the bad payment devices [checks]. Restitution shall be made through the
prosecutor's office if collection and processing were initiated through
that office. In other cases restitution may be, with the approval of the
court in which the offense is filed:
(1) made through the court;
or
(2) collected by a law
enforcement agency if a peace officer of that agency executes a warrant
against the person charged with the offense.
(f) Except as otherwise
provided by this subsection, an offense under this section is a Class C
misdemeanor. If the payment device [check or similar sight order]
that was issued or passed was for a child support payment the obligation
for which is established under a court order, the offense is a Class B
misdemeanor.
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SECTION 4. Section 32.41(e),
Penal Code, is amended to read as follows:
No
equivalent provision.
No
equivalent provision.
(e) A person charged with an
offense under this section may make restitution for the bad checks or sight orders. Restitution
shall be made through the prosecutor's office if collection and processing
were initiated through that office. In other cases restitution may be,
with the approval of the court in which the offense is filed:
(1) made through the court;
or
(2) collected by a law enforcement
agency if a peace officer of that agency executes a warrant against the
person charged with the offense.
No
equivalent provision.
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SECTION 7. The heading to
Section 3.507, Business & Commerce Code, is amended to read as follows:
Sec. 3.507. DELIVERY
NOTIFICATION FEE BY HOLDER OF PAYMENT DEVICE [CHECK OR SIMILAR
SIGHT ORDER].
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No
equivalent provision.
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SECTION 8. Sections 3.507(a)
and (c), Business & Commerce Code, are amended to read as follows:
(a) On return of a payment device, as defined by Section 3.506, [check or similar sight order] to
the holder following dishonor of the payment
device [check or sight order]
by a payor and prior to the payment device [check or sight order] being
referred for prosecution, the holder, the holder's assignee, agent, or
representative, or any other person retained by the holder to seek
collection of the dishonored payment
device [check or sight order]
may charge the drawer or indorser of the payment
device [check or sight order]
the cost of delivery notification by registered or certified mail with
return receipt requested under Section 31.06 or Section 32.41, Penal Code,
as applicable.
(c) This section does not
affect any right or remedy to which the holder of a payment device [check
or similar sight order] may be entitled under any rule, written
contract, judicial decision, or other statute, including Section 3.506.
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SECTION 5. Section 3.507(a),
Business & Commerce Code, is amended to read as follows:
(a) On return of a check or similar sight order, as defined by
Section 1.07, Penal Code, to the holder following dishonor of
the check or sight order by a payor
and prior to the check or sight order
being referred for prosecution, the holder, the holder's assignee, agent,
or representative, or any other person retained by the holder to seek
collection of the dishonored check or sight
order may charge the drawer or indorser of the check or sight order the cost of delivery
notification by registered or certified mail with return receipt requested
under Section 31.06 or Section 32.41, Penal Code, as applicable.
No
equivalent provision.
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SECTION 9. The heading to
Article 102.007, Code of Criminal Procedure, is amended to read as follows:
Art. 102.007. FEE FOR
COLLECTING AND PROCESSING PAYMENT DEVICE [SIGHT ORDER].
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SECTION 6. The heading to
Article 102.007, Code of Criminal Procedure, is amended to read as follows:
Art. 102.007. FEE FOR
COLLECTING AND PROCESSING CHECK OR SIMILAR SIGHT ORDER.
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SECTION 10. Articles
102.007(a), (c), (d), (e), and (g), Code of Criminal Procedure, are amended
to read as follows:
(a) A county attorney,
district attorney, or criminal district attorney may collect a fee if the
attorney's [his] office collects and processes a payment device, as defined by Section 3.506,
Business & Commerce Code, [check
or similar sight order] if the payment
device [check or similar sight
order]:
(1) has been issued or
passed in a manner that makes the issuance or passing an offense under:
(A) Section 31.03, Penal
Code;
(B) Section 31.04, Penal
Code; or
(C) Section 32.41, Penal
Code; or
(2) is a check or similar sight order that
has been forged, as defined by Section 32.21, Penal Code.
(c) The amount of the fee
may not exceed:
(1) $10 if the face amount
of the payment device [check or sight order] does not exceed
$10;
(2) $15 if the face amount
of the payment device [check or sight order] is greater than
$10 but does not exceed $100;
(3) $30 if the face amount
of the payment device [check or sight order] is greater than
$100 but does not exceed $300;
(4) $50 if the face amount
of the payment device [check or sight order] is greater than
$300 but does not exceed $500; and
(5) $75 if the face amount
of the payment device [check or sight order] is greater than
$500.
(d) If the person from whom
the fee is collected was a party to the offense of forgery, as defined by
Section 32.21, Penal Code, committed by altering the face amount of the payment
device [check or sight order], the face amount as altered
governs for the purposes of determining the amount of the fee.
(e) In addition to the
collection fee specified in Subsection (c) of this article, the county
attorney, district attorney, or criminal district attorney may collect the
fee authorized by Section 3.506, Business & Commerce Code, for the benefit
of the holder of a payment device [check] or the holder's [its]
assignee, agent, representative, or any other person retained by the holder
to seek collection of the payment device [check].
(g) In addition to the
collection fee specified in Subsections (b) and (c), the issuer of a payment
device [check or similar sight order] that has been issued or
passed as described by Subsection (a)(1) is liable for a fee in an amount
equal to the costs of delivering notification by registered or certified
mail with return receipt requested. The fee under this subsection must be
collected in all cases described by Subsection (a)(1), and on receipt of
proof of the actual costs expended, the fee shall be remitted to the holder
of the payment device [check or similar sight order].
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SECTION 7. Articles
102.007(a) and (e), Code of Criminal Procedure, are amended to read as
follows:
(a) A county attorney,
district attorney, or criminal district attorney may collect a fee if the
attorney's [his] office collects and processes a check or similar sight order, as defined by
Section 1.07, Penal Code, if the check or similar sight order:
(1) has been issued or
passed in a manner that makes the issuance or passing an offense under:
(A) Section 31.03, Penal
Code;
(B) Section 31.04, Penal
Code; or
(C) Section 32.41, Penal
Code; or
(2) has been forged, as
defined by Section 32.21, Penal Code.
No
equivalent provision.
No
equivalent provision.
(e) In addition to the
collection fee specified in Subsection (c) [of this article], the
county attorney, district attorney, or criminal district attorney may
collect the fee authorized by Section 3.506, Business & Commerce Code,
for the benefit of the holder of a check or
similar sight order or the holder's [its]
assignee, agent, representative, or any other person retained by the holder
to seek collection of the check or order.
No
equivalent provision.
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SECTION 11. Article
102.0071, Code of Criminal Procedure, is amended to read as follows:
Art. 102.0071. JUSTICE COURT
DISHONORED PAYMENT DEVICE [CHECK]. On conviction in justice
court of an offense under Section 32.41, Penal Code, or an offense under
Section 31.03 or 31.04, Penal Code, in which it is shown that the defendant
committed the offense by issuing or passing a payment device, as defined by Section 3.506, Business & Commerce
Code, [check] that
was subsequently dishonored, the court may collect from the defendant and
pay to the holder of the payment device [check] the fee permitted by Section
3.506, Business & Commerce Code.
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SECTION 8. Article 102.0071,
Code of Criminal Procedure, is amended to read as follows:
Art. 102.0071. JUSTICE COURT
DISHONORED CHECK OR SIMILAR SIGHT ORDER.
On conviction in justice court of an offense under Section 32.41, Penal Code,
or an offense under Section 31.03 or 31.04, Penal Code, in which it is
shown that the defendant committed the offense by issuing or passing a check or similar sight order, as defined by
Section 1.07, Penal Code, that was subsequently
dishonored, the court may collect from the defendant and pay to the holder
of the check or order the fee permitted by Section
3.506, Business & Commerce Code.
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SECTION 12. Sections 102.101
and 102.102, Government Code, are amended to read as follows:
Sec. 102.101. ADDITIONAL
COURT COSTS ON CONVICTION IN JUSTICE COURT: CODE OF CRIMINAL PROCEDURE. A
clerk of a justice court shall collect fees and costs under the Code of
Criminal Procedure on conviction of a defendant as follows:
(1) a jury fee (Art.
102.004, Code of Criminal Procedure) . . . $3;
(2) a fee for withdrawing
request for jury less than 24 hours before time of trial (Art. 102.004,
Code of Criminal Procedure) . . . $3;
(3) a jury fee for two or
more defendants tried jointly (Art. 102.004, Code of Criminal Procedure) .
. . one jury fee of $3;
(4) a security fee on a
misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $4;
(5) a fee for technology
fund on a misdemeanor offense (Art. 102.0173, Code of Criminal Procedure) .
. . $4;
(6) a juvenile case manager
fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5 if
the court employs a juvenile case manager;
(7) a fee on conviction of
certain offenses involving issuing or passing a subsequently dishonored payment device [check] (Art. 102.0071, Code of Criminal Procedure) .
. . not to exceed $30;
(8) a court cost on
conviction of a Class C misdemeanor in a county with a population of 3.3
million or more, if authorized by the county commissioners court (Art.
102.009, Code of Criminal Procedure) . . . not to exceed $7; and
(9) a civil justice fee
(Art. 102.022, Code of Criminal Procedure) . . . $0.10.
Sec. 102.102. ADDITIONAL
COURT COSTS ON CONVICTION IN JUSTICE COURT: BUSINESS & COMMERCE CODE.
The clerk of a justice court shall collect from a defendant a court cost
not to exceed $30 under Section 3.506, Business & Commerce Code, on
conviction of certain offenses involving issuing or passing a subsequently
dishonored payment device [check].
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SECTION 9. Sections 102.101
and 102.102, Government Code, are amended to read as follows:
Sec. 102.101. ADDITIONAL
COURT COSTS ON CONVICTION IN JUSTICE COURT: CODE OF CRIMINAL PROCEDURE. A
clerk of a justice court shall collect fees and costs under the Code of
Criminal Procedure on conviction of a defendant as follows:
(1) a jury fee (Art.
102.004, Code of Criminal Procedure) . . . $3;
(2) a fee for withdrawing
request for jury less than 24 hours before time of trial (Art. 102.004,
Code of Criminal Procedure) . . . $3;
(3) a jury fee for two or
more defendants tried jointly (Art. 102.004, Code of Criminal Procedure) .
. . one jury fee of $3;
(4) a security fee on a
misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $4;
(5) a fee for technology
fund on a misdemeanor offense (Art. 102.0173, Code of Criminal Procedure) .
. . $4;
(6) a juvenile case manager
fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5 if
the court employs a juvenile case manager;
(7) a fee on conviction of
certain offenses involving issuing or passing a subsequently dishonored check or similar sight order (Art.
102.0071, Code of Criminal Procedure) . . . not to exceed $30;
(8) a court cost on
conviction of a Class C misdemeanor in a county with a population of 3.3
million or more, if authorized by the county commissioners court (Art.
102.009, Code of Criminal Procedure) . . . not to exceed $7; and
(9) a civil justice fee
(Art. 102.022, Code of Criminal Procedure) . . . $0.10.
Sec. 102.102. ADDITIONAL
COURT COSTS ON CONVICTION IN JUSTICE COURT: BUSINESS & COMMERCE CODE.
The clerk of a justice court shall collect from a defendant a court cost
not to exceed $30 under Section 3.506, Business & Commerce Code, on
conviction of certain offenses involving issuing or passing a subsequently
dishonored check or similar sight order.
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SECTION 13. The heading to
Section 162.409, Tax Code, is amended to read as follows:
Sec. 162.409. ISSUANCE OF
BAD PAYMENT DEVICE [CHECK] TO LICENSED DISTRIBUTOR,
LICENSED SUPPLIER, OR PERMISSIVE SUPPLIER.
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SECTION 10. The heading to
Section 162.409, Tax Code, is amended to read as follows:
Sec. 162.409. ISSUANCE OF
BAD CHECK OR SIMILAR SIGHT ORDER
TO LICENSED DISTRIBUTOR, LICENSED SUPPLIER, OR PERMISSIVE SUPPLIER.
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SECTION 14. Sections
162.409(a) and (d), Tax Code, are amended to read as follows:
(a) A person commits an
offense if:
(1) the person issues or
passes a payment device, as that term is
defined by Section 3.506, Business & Commerce Code, [check or similar sight order] for
the payment of money knowing that the issuer does not have sufficient funds
in or on deposit with the bank or other drawee for the payment in full of
the payment device [check or order] as well as all
other payment devices [checks or orders] outstanding at
the time of issuance;
(2) the payee on the payment device [check or order] is a licensed distributor, licensed
supplier, or permissive supplier; and
(3) the payment is for an
obligation or debt that includes a tax under this chapter to be collected
by the licensed distributor, licensed supplier, or permissive supplier.
(d) A person who makes
payment on an obligation or debt that includes a tax under this chapter and
pays with an insufficient funds payment
device [check]
issued to a licensed distributor, licensed supplier, or permissive supplier
may be held liable for a penalty equal to the total amount of tax not paid
to the licensed distributor, licensed supplier, or permissive supplier.
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SECTION 11. Sections
162.409(a) and (d), Tax Code, are amended to read as follows:
(a) A person commits an
offense if:
(1) the person issues or
passes a check or similar sight order, as
defined by Section 1.07, Penal Code, for the payment of
money knowing that the issuer does not have sufficient funds in or on
deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of
issuance;
(2) the payee on the check or order is a licensed distributor,
licensed supplier, or permissive supplier; and
(3) the payment is for an
obligation or debt that includes a tax under this chapter to be collected
by the licensed distributor, licensed supplier, or permissive supplier.
(d) A person who makes
payment on an obligation or debt that includes a tax under this chapter and
pays with an insufficient funds check or
similar sight order, as defined by Section 1.07, Penal Code,
issued to a licensed distributor, licensed supplier, or permissive supplier
may be held liable for a penalty equal to the total amount of tax not paid
to the licensed distributor, licensed supplier, or permissive supplier.
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SECTION 15. 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 governed by the law in effect on the date 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 occurred before that date.
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SECTION 12. Same as
introduced version.
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SECTION 16. This Act takes
effect September 1, 2013.
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SECTION 13. Same as
introduced version.
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