Have you been arrested, charged or accused of the crime of Theft by Check? It is a common occurrence that a reputable citizen may have a mix up with their checking account and write a check for services or products in good faith, but find that their check was insufficient due to old checks clearing or bills being due all at once. However, if you are facing prosecution for the crime of Theft by Check, it is serious business that can have damaging long-term consequences to your freedom and good name. At The Hampton Law Firm, you will find an experienced criminal lawyer that has a proven track record of dealing with Theft by Check cases in Tarrant County and will work hard to get your Theft by Check case dismissed.
According to Texas Penal Code, Title 7: Offenses Against Property, Chapter 31: Theft, Section 31.03 and 31.06, the Tarrant County District Attorney’s Office will be required to prove the following elements of Theft by Check beyond a reasonable doubt:
A person commits the offense of Theft by Check if he unlawfully appropriates property with intent to deprive the owner of property.
Texas Penal Code, Section 31.06 creates a presumption by stating the following:
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 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 to avoid payment for service under Section 31.04 (Theft of Service) (except in the case of a postdated check or order) if:
- he had no account with the bank or other drawee at the time he issued the check or order; or
- 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.
Regarding notice, Texas Penal Code, Section 31.06(b) states that notice may be actual notice or notice in writing that:
- is sent by:
- first class mail, evidenced by an affidavit of service; or
- registered or certified mail with return receipt requested;
- is addressed to the issuer at the issuer’s address shown on:
- the check or order;
- the records of the bank or other drawee; or
- the records of the person to whom the check or order has been issued or passed; and
- 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.”
As you can see, simply writing a hot check does not automatically make you guilty of the crime of Theft by Check. If you failed to receive notice from the merchant regarding the insufficient funds, you have a valid defense that may lead to the dismissal of your case.
However, Texas Penal Code, Section 31.06(c) states that If written notice is given in accordance with Subsection (b), it is presumed that the notice was received no later than five days after it was sent. Additionally, it is important to know that partial restitution does not negate the presumption of the requisite intent needed to establish the crime of Theft by Check. Texas Penal Code, Section 31.06(f) states that intent to deprive the owner of his property is presumed when you wrote the check, except in the case of a postdated check, if:
- the actor ordered the bank or other drawee to stop payment on the check or order;
- the bank or drawee refused payment to the holder on presentation of the check or order within 30 days after issue;
- 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
- the actor failed to:
- pay the holder within 10 days after receiving the demand for payment; or
- return the property to the owner within 10 days after receiving the demand for return of the property.
The range of punishment for the crime of Theft by Check is as follows:
- a Class C misdemeanor if the value of the property stolen is less than $20 and the defendant obtained the property by issuing or passing a check;
- a Class B misdemeanor if the value of the property stolen is $20 or more but less than $500 and the defendant obtained the property by issuing or passing a check; or the value of the property stolen is less than $20 but the defendant has previously been convicted of any grade of theft, and the defendant obtained the property by issuing or passing a check;
- a Class A misdemeanor if the value of the property stolen is $500 or more but less than $1,500;
- a state jail felony if the value of the property stolen is $1,500 or more but less than $20,000 or 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;
- a felony of the third degree if the value of the property stolen is $20,000 or more but less than $100,000;
- a felony of the second degree if the value of the property stolen is $100,000 or more but less than $200,000;
- a felony of the first degree if the value of the property stolen is $200,000 or more.
As you can see, a conviction for Theft by Check could result in a loss of your freedom and severely damage your reputation and limit your opportunity to obtain or retain employment. Regardless of whether your theft case is a misdemeanor or felony, a conviction for theft oftentimes has the same result as a felony conviction due to the stigma of being labeled a thief by potential employers. It is important to fight for your freedom and reputation by hiring an aggressive criminal lawyer that knows the courts in Tarrant County and is willing to do what it takes to protect your clean record. At The Hampton Law Firm, I will aggressively defend you from a conviction and look to negotiate a dismissal or reduction of your charges.
Call The Hampton Law Firm now for a free consultation to discuss your legal rights and options under Texas law. Contact Jeff Hampton at 817-877-5200.
Contact the Hampton Law Firm now to schedule a free consultation to determine your rights and legal options.