Texas 2013 - 83rd Regular

Texas Senate Bill SB821 Compare Versions

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1	1	By: Schwertner S.B. No. 821
2	2	(Pitts)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the prosecution of certain criminal offenses involving
8	8	theft or involving fraud or other deceptive practices.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The heading to Section 31.06, Penal Code, is
11	11	amended to read as follows:
12	12	Sec. 31.06. PRESUMPTION FOR THEFT BY CHECK OR SIMILAR SIGHT
13	13	ORDER.
14	14	SECTION 2. Subsection (a), Section 31.06, Penal Code, is
15	15	amended to read as follows:
16	16	(a) If the actor obtained property or secured performance of
17	17	service by issuing or passing a check or similar sight order for the
18	18	payment of money, when the issuer did not have sufficient funds in
19	19	or on deposit with the bank or other drawee for the payment in full
20	20	of the check or order as well as all other checks or orders then
21	21	outstanding, it is prima facie evidence of the issuer's [his]
22	22	intent to deprive the owner of property under Section 31.03 (Theft)
23	23	including a drawee or third-party holder in due course who
24	24	negotiated the check or order or to avoid payment for service under
25	25	Section 31.04 (Theft of Service) (except in the case of a postdated
26	26	check or order) if:
27	27	(1) the issuer [he] had no account with the bank or
28	28	other drawee at the time the issuer [he] issued the check or sight
29	29	order; or
30	30	(2) payment was refused by the bank or other drawee for
31	31	lack of funds or insufficient funds, on presentation within 30 days
32	32	after issue, and the issuer failed to pay the holder in full within
33	33	10 days after receiving notice of that refusal.
34	34	SECTION 3. The heading to Section 32.41, Penal Code, is
35	35	amended to read as follows:
36	36	Sec. 32.41. ISSUANCE OF BAD CHECK OR SIMILAR SIGHT ORDER.
37	37	SECTION 4. Subsection (e), Section 32.41, Penal Code, is
38	38	amended to read as follows:
39	39	(e) A person charged with an offense under this section may
40	40	make restitution for the bad checks or sight orders. Restitution
41	41	shall be made through the prosecutor's office if collection and
42	42	processing were initiated through that office. In other cases
43	43	restitution may be, with the approval of the court in which the
44	44	offense is filed:
45	45	(1) made through the court; or
46	46	(2) collected by a law enforcement agency if a peace
47	47	officer of that agency executes a warrant against the person
48	48	charged with the offense.
49	49	SECTION 5. Subdivision (1), Subsection (a), Section 32.45,
50	50	Penal Code, is amended to read as follows:
51	51	(1) "Fiduciary" includes:
52	52	(A) a trustee, guardian, administrator,
53	53	executor, conservator, and receiver;
54	54	(B) an attorney in fact or agent appointed under
55	55	a durable power of attorney as provided by Chapter XII, Texas
56	56	Probate Code;
57	57	(C) any other person acting in a fiduciary
58	58	capacity, but not a commercial bailee unless the commercial bailee
59	59	is a party in a motor fuel sales agreement with a distributor or
60	60	supplier, as those terms are defined by Section 162.001 [153.001],
61	61	Tax Code; and
62	62	(D) an officer, manager, employee, or agent
63	63	carrying on fiduciary functions on behalf of a fiduciary.
64	64	SECTION 6. Subsection (a), Section 3.507, Business &
65	65	Commerce Code, is amended to read as follows:
66	66	(a) On return of a check or similar sight order, as defined
67	67	by Section 1.07, Penal Code, to the holder following dishonor of the
68	68	check or sight order by a payor and prior to the check or sight order
69	69	being referred for prosecution, the holder, the holder's assignee,
70	70	agent, or representative, or any other person retained by the
71	71	holder to seek collection of the dishonored check or sight order may
72	72	charge the drawer or indorser of the check or sight order the cost
73	73	of delivery notification by registered or certified mail with
74	74	return receipt requested under Section 31.06 or Section 32.41,
75	75	Penal Code, as applicable.
76	76	SECTION 7. The heading to Article 102.007, Code of Criminal
77	77	Procedure, is amended to read as follows:
78	78	Art. 102.007. FEE FOR COLLECTING AND PROCESSING CHECK OR
79	79	SIMILAR SIGHT ORDER.
80	80	SECTION 8. Subsections (a) and (e), Article 102.007, Code
81	81	of Criminal Procedure, are amended to read as follows:
82	82	(a) A county attorney, district attorney, or criminal
83	83	district attorney may collect a fee if the attorney's [his] office
84	84	collects and processes a check or similar sight order, as defined by
85	85	Section 1.07, Penal Code, if the check or similar sight order:
86	86	(1) has been issued or passed in a manner that makes
87	87	the issuance or passing an offense under:
88	88	(A) Section 31.03, Penal Code;
89	89	(B) Section 31.04, Penal Code; or
90	90	(C) Section 32.41, Penal Code; or
91	91	(2) has been forged, as defined by Section 32.21,
92	92	Penal Code.
93	93	(e) In addition to the collection fee specified in
94	94	Subsection (c) [of this article], the county attorney, district
95	95	attorney, or criminal district attorney may collect the fee
96	96	authorized by Section 3.506, Business & Commerce Code, for the
97	97	benefit of the holder of a check or similar sight order or the
98	98	holder's [its] assignee, agent, representative, or any other person
99	99	retained by the holder to seek collection of the check or order.
100	100	SECTION 9. Article 102.0071, Code of Criminal Procedure, is
101	101	amended to read as follows:
102	102	Art. 102.0071. JUSTICE COURT DISHONORED CHECK OR SIMILAR
103	103	SIGHT ORDER. On conviction in justice court of an offense under
104	104	Section 32.41, Penal Code, or an offense under Section 31.03 or
105	105	31.04, Penal Code, in which it is shown that the defendant committed
106	106	the offense by issuing or passing a check or similar sight order, as
107	107	defined by Section 1.07, Penal Code, that was subsequently
108	108	dishonored, the court may collect from the defendant and pay to the
109	109	holder of the check or order the fee permitted by Section 3.506,
110	110	Business & Commerce Code.
111	111	SECTION 10. Sections 102.101 and 102.102, Government Code,
112	112	are amended to read as follows:
113	113	Sec. 102.101. ADDITIONAL COURT COSTS ON CONVICTION IN
114	114	JUSTICE COURT: CODE OF CRIMINAL PROCEDURE. A clerk of a justice
115	115	court shall collect fees and costs under the Code of Criminal
116	116	Procedure on conviction of a defendant as follows:
117	117	(1) a jury fee (Art. 102.004, Code of Criminal
118	118	Procedure) . . . $3;
119	119	(2) a fee for withdrawing request for jury less than 24
120	120	hours before time of trial (Art. 102.004, Code of Criminal
121	121	Procedure) . . . $3;
122	122	(3) a jury fee for two or more defendants tried jointly
123	123	(Art. 102.004, Code of Criminal Procedure) . . . one jury fee of $3;
124	124	(4) a security fee on a misdemeanor offense (Art.
125	125	102.017, Code of Criminal Procedure) . . . $4;
126	126	(5) a fee for technology fund on a misdemeanor offense
127	127	(Art. 102.0173, Code of Criminal Procedure) . . . $4;
128	128	(6) a juvenile case manager fee (Art. 102.0174, Code
129	129	of Criminal Procedure) . . . not to exceed $5 if the court employs a
130	130	juvenile case manager;
131	131	(7) a fee on conviction of certain offenses involving
132	132	issuing or passing a subsequently dishonored check or similar sight
133	133	order (Art. 102.0071, Code of Criminal Procedure) . . . not to
134	134	exceed $30;
135	135	(8) a court cost on conviction of a Class C misdemeanor
136	136	in a county with a population of 3.3 million or more, if authorized
137	137	by the county commissioners court (Art. 102.009, Code of Criminal
138	138	Procedure) . . . not to exceed $7; and
139	139	(9) a civil justice fee (Art. 102.022, Code of
140	140	Criminal Procedure) . . . $0.10.
141	141	Sec. 102.102. ADDITIONAL COURT COSTS ON CONVICTION IN
142	142	JUSTICE COURT: BUSINESS & COMMERCE CODE. The clerk of a justice
143	143	court shall collect from a defendant a court cost not to exceed $30
144	144	under Section 3.506, Business & Commerce Code, on conviction of
145	145	certain offenses involving issuing or passing a subsequently
146	146	dishonored check or similar sight order.
147	147	SECTION 11. The heading to Section 162.409, Tax Code, is
148	148	amended to read as follows:
149	149	Sec. 162.409. ISSUANCE OF BAD CHECK OR SIMILAR SIGHT ORDER
150	150	TO LICENSED DISTRIBUTOR, LICENSED SUPPLIER, OR PERMISSIVE
151	151	SUPPLIER.
152	152	SECTION 12. Subsections (a) and (d), Section 162.409, Tax
153	153	Code, are amended to read as follows:
154	154	(a) A person commits an offense if:
155	155	(1) the person issues or passes a check or similar
156	156	sight order, as defined by Section 1.07, Penal Code, for the payment
157	157	of money knowing that the issuer does not have sufficient funds in
158	158	or on deposit with the bank or other drawee for the payment in full
159	159	of the check or order as well as all other checks or orders
160	160	outstanding at the time of issuance;
161	161	(2) the payee on the check or order is a licensed
162	162	distributor, licensed supplier, or permissive supplier; and
163	163	(3) the payment is for an obligation or debt that
164	164	includes a tax under this chapter to be collected by the licensed
165	165	distributor, licensed supplier, or permissive supplier.
166	166	(d) A person who makes payment on an obligation or debt that
167	167	includes a tax under this chapter and pays with an insufficient
168	168	funds check or similar sight order, as defined by Section 1.07,
169	169	Penal Code, issued to a licensed distributor, licensed supplier, or
170	170	permissive supplier may be held liable for a penalty equal to the
171	171	total amount of tax not paid to the licensed distributor, licensed
172	172	supplier, or permissive supplier.
173	173	SECTION 13. The change in law made by this Act applies only
174	174	to an offense committed on or after the effective date of this Act.
175	175	An offense committed before the effective date of this Act is
176	176	governed by the law in effect on the date the offense was committed,
177	177	and the former law is continued in effect for that purpose. For
178	178	purposes of this section, an offense was committed before the
179	179	effective date of this Act if any element of the offense occurred
180	180	before that date.
181	181	SECTION 14. This Act takes effect September 1, 2013.