83R7308 JRR-F
By: Schwertner S.B. No. 821
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution of certain criminal offenses involving
theft or involving fraud or other deceptive practices.
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 post-dated payment device, as defined by
Section 3.506, Business & Commerce Code, [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. Section 32.45(a)(1), Penal Code, is amended to
read as follows:
(1) "Fiduciary" includes:
(A) a trustee, guardian, administrator,
executor, conservator, and receiver;
(B) an attorney in fact or agent appointed under
a durable power of attorney as provided by Chapter XII, Texas
Probate Code;
(C) any other person acting in a fiduciary
capacity, but not a commercial bailee unless the commercial bailee
is a party in a motor fuel sales agreement with a distributor or
supplier, as those terms are defined by Section 162.001 [153.001],
Tax Code; and
(D) an officer, manager, employee, or agent
carrying on fiduciary functions on behalf of a fiduciary.
SECTION 8. 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 9. 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 10. 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 11. 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) 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 12. 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 13. 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 14. 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 15. 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 16. 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 17. This Act takes effect September 1, 2013.