83R10753 JRR-F
 
  By: Pitts H.B. No. 3365
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the prosecution of certain criminal offenses involving
  theft or fraud by payment device; providing penalties; imposing
  fees.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         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.
         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].
         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].
         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.
         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].
         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.
         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].
         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.
         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].
         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].
         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.
         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].
         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.
         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.
         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.
         SECTION 16.  This Act takes effect September 1, 2013.