Credit cards and debit cards are an essential modern convenience which every American adult uses on a regular basis to accomplish a wide variety of objectives. The vast majority of Texans use their cards correctly and legally. However, some criminal elements among us choose to use credit cards and/or credit card information for fraudulent purposes. As a result, the Texas legislature established a law that punishes credit and debit card abuse as a felony offense, punishable by a prison sentence and other sanctions.
A while back, the Dallas-Fort Worth area ranked highly among the most notorious credit card fraud hotspots in the United States. This was attributed to the Metroplex having more credit cards — and credit card debt — than most other parts of the nation.
Some of the most common examples of credit card fraud or credit card abuse are listed below:
- Taking another person’s credit card or debit card without their consent with the intent to use the card for financial benefit or with intent to sell the card.
- Keeping someone’s lost or stolen credit or debit card with the intent to use it or sell it to another.
- Possessing fake or altered credit cards with the intent to complete a financial transaction for monetary gain.
- Obtaining a credit card in the name of another person fraudulently with the intent to use it for personal gain.
Although it make sense for the Texas legislature to criminalize credit debit card abuse, it is a dangerous position if you find yourself wrongfully charged with the felony offense of credit/debit card abuse. Credit card fraud, under Texas law, is seen as a crime of dishonesty. Being convicted of debit or credit card abuse can result in being labeled a convicted felon, restricting your right to vote, own and purchase firearms and forever limit your ability to obtain meaningful employment.
If you have been wrongfully arrested and charged with credit card fraud, your number one priority should be to find an experienced and aggressive criminal defense attorney in Fort Worth or the Tarrant County, Texas area that has the experience and results to protect your freedom, your future, and your good name. Secondly, you need to study up on Texas criminal related to credit card abuse. What does the State of Texas have to prove in order to convict you? What legal defenses do you have available to you to defend your charge? Let us examine these issues.
Credit Card Fraud in Texas
Credit Card Fraud laws in Texas boils down to someone intentionally or knowingly using deceit to obtain some benefit from a credit card or debit card to which they are not legally entitled (theft). Credit card fraud, therefore, is a broad term for theft by fraudulent activity that is committed using credit cards.
These crimes primarily revolve around unauthorized credit card usage or stolen and compromised credit card information. Under the Texas penal code section 32.31, these are the crimes associated with credit card fraud:
- Presenting or using a debit or credit card knowing it is not yours and that the cardholder has not given you consent.
- Presenting or using a debit or credit card that has been canceled, revoked, or that expired with intent to fraudulently benefit from the act.
- Using a fake debit or credit card or any false description or number from a fake card
- Stealing a debit or credit card
- Receiving and intending to use, transfer, or sell a stolen credit or debit card
- Knowingly buying a debit or credit card from an unauthorized issuer
- Knowingly selling a debit or credit card in spite of not being an authorized issuer
- Knowingly convincing a debit or credit cardholder to obtain goods, property, or services using their card, for your benefit, knowing that they are incapable of paying.
- Knowingly possessing and intending to use a debit or credit card which does not belong to you, without permission from the rightful cardholder.
- Benefiting from debit or credit card abuse in any way as defined by the law. (Officially, credit card fraud is indistinguishable from credit card abuse.)
Defenses To Credit Card Fraud Charges
If you are facing a credit/debit card case in Texas, it is critical to know not only what the State of Texas must prove beyond a reasonable doubt for a conviction, but it is also important to understand your legal defenses to the crime to help avoid prison time or a felony conviction.
A person charged with credit card fraud has several possible legal defenses, including:
No Criminal Intent – Mistake or Accident
Texas credit card abuse law requires the State of Texas prove beyond a reasonable doubt that you “intended to obtain a benefit fraudulently,” when you use the credit or debit card of another person. What if the use of a credit card was a mistake? What if you had no intention of using a different card but inadvertently did so?
For example: we have represented clients that used a business credit card as part of their job. They had previously been given consent to use the credit card or debit card for business purposes. We have seen instances where the client used the card accidentally at a gas station or for a purchase of something they intended to use their personal credit or debit card to purchase.
The key to this defense is how many times was there a transaction? Was it a one-time transaction or did this happen over multiple times and instances? The more times a transaction took place on a business card, the easier it is for a prosecutor and a jury to infer criminal intent. However, if it were a single transaction with no prior history of using the credit card for anything other than business purposes, it could be possible that the felony credit/debit card abuse case could be dismissed.
In this situation, we have aggressively presented a packet of evidence to a grand jury for consideration of a dismissal. The grand jury is a required process for every felony case filed in Texas. The primary purpose of a grand jury is to filter felony cases to determine if a case should continue in the criminal justice system. By presenting a packet of evidence favorable to the client, the grand jury was able to consider three options: keep the credit card abuse case as a felony, lower it to a lesser misdemeanor charge or no bill the case. A no bill is the same as a dismissal and allows the client to have the entire charge and arrest expunged from their criminal record.
Reasonable Belief Consent Was Given To Use The Card
In addition to the credit card being used, the prosecutor must also prove that you did not have consent, or you reasonably believed you did not have consent to use the credit or debit card. This element of the crime must be proven beyond a reasonable doubt. What if you reasonably believed that you had permission from the owner of the credit or debit card to use the card to purchase goods or services? If it can be showing you had a good faith belief that you were permitted to use the credit card, the prosecutor will have a difficult case.
How do you show this? Maybe there was a history of using the card repeatedly and the owner of the card consented to those purchases. Perhaps there are text messages, emails, or voice mails where the owner of the credit card had given permission to use their card. This type of evidence could provide your experienced aggressive credit card abuse attorney the means to negotiate a reduction or dismissal of your credit/debit card abuse case.
Texas Credit Card Fraud Charges
Charges of credit card fraud is often intertwined with other crimes. In addition to being charged with a specific credit card fraud offense, one may also be charged with identity theft, credit fraud, bank fraud, computer fraud and money laundering among several other possible crimes.
Punishment For Credit Card Abuse In Texas
If you are convicted of a Credit or Debit Card Abuse case in Texas, you could be facing a state jail felony sentence that could range from a minimum of 180 days in prison up to 2 years in prison and up to a $10,000 fine.
If the alleged victim were an “elderly person,” as defined in Texas Penal Code Section 22.04 (65 years or older), the credit card abuse case would be treated as a third-degree felony, punishable by a minimum of two years and up to ten years in prison and up to a $10,000 fine.
Because of this, you owe it to yourself to find the best Ft. Worth legal representation if you wind up facing a credit card fraud charge in Texas.
In any case, both state and federal credit card fraud convictions can lead to lengthy incarceration and/or hefty fines. Federal crimes typically have more significant and severe punishments than state-level crime.
Should You Consider a 12.44(a) Sentence On A Credit Card Abuse Case?
Be careful when you consider accepting a 12.44(a) sentence as a means to resolve your credit card abuse case. Accepting a 12.44(a) sentence does provide you the opportunity to avoid a prison sentence. You are permitted to serve your time at the Tarrant County jail. However, resolving your credit card abuse case under a 12.44(a) sentence results in a final felony conviction that will remain on your criminal record for the rest of your life. You must consider the consequences regarding a 12.44(a) sentence if the prosecutor offers you this as a possible resolution.
If you are a first-time offender, it is critical that you make good decisions regarding how you defend your criminal case. Every prospective client that contacts The Hampton Law Firm has the same three goals in mind:
- Stay out of jail and maintain freedom – going to jail is not an option, particularly if you are a first-time offender. Going to jail would like result in you losing your job and being held away from family and friends. Additionally, receiving a jail sentence always results in a felony conviction on a credit card abuse case in Texas. At The Hampton Law Firm, the number one priority we have for our clients is to help them avoid prison or jail time.
- Avoid becoming a convicted felon or receiving a conviction – because credit/debit card abuse is a state jail felony, if you take a plea bargain to anything other than a deferred adjudication probation, you will receive a felony conviction. Becoming a convicted felon will eliminate your opportunity to vote in state and federal elections and permanently limit your rights to purchase or possess firearms. Your criminal defense attorney must work tirelessly to prevent a felony conviction.
- Ensuring the credit card abuse arrest and charge is permanently removed from their criminal record – if your criminal attorney resolves your credit card abuse case favorably, you must follow through with filing a petition for expunction to have your credit card abuse case and arrest permanently removed from your criminal record. At the end of the day, what matters most for a first-time offender is to make certain that this entire arrest and incident no longer exists. This will protect your future employment and good name.
Credit Card Fraud at the Federal Level
Credit card fraud was first recognized as a major legal issue in the 1980s. In 1984, the Credit Card Fraud Act was signed into law to try and put an end to the illegal acquisition and misuse of credit card data.
The act is codified in 18 U.S. Code § 1029, which makes it clear that an individual can be charged with a federal offense if they intentionally and knowingly obtain credit card information illegally even if they never physically touch the card.
Various other forms of credit card fraud are criminalized in 15 U.S. Code § 1644, more so those that involve interstate or foreign fraud.
Consequently, credit fraud in Texas may be tried as either a federal or state offense.
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.