By: Schwertner S.B. No. 821
(Pitts)
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. The heading to Section 31.06, Penal Code, is
amended to read as follows:
Sec. 31.06. PRESUMPTION FOR THEFT BY CHECK OR SIMILAR SIGHT
ORDER.
SECTION 2. Subsection (a), Section 31.06, Penal Code, is
amended to read as follows:
(a) 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 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 check or order or to avoid payment for service under
Section 31.04 (Theft of Service) (except in the case of a postdated
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 check or sight
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.
SECTION 3. The heading to Section 32.41, Penal Code, is
amended to read as follows:
Sec. 32.41. ISSUANCE OF BAD CHECK OR SIMILAR SIGHT ORDER.
SECTION 4. Subsection (e), Section 32.41, Penal Code, is
amended to read as follows:
(e) A person charged with an offense under this section may
make restitution for the bad checks or sight orders. 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.
SECTION 5. Subdivision (1), Subsection (a), Section 32.45,
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 6. Subsection (a), Section 3.507, Business &
Commerce Code, is amended to read as follows:
(a) On return of a check or similar sight order, as defined
by Section 1.07, Penal Code, to the holder following dishonor of the
check or sight order by a payor and prior to the 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 check or sight order may
charge the drawer or indorser of the 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.
SECTION 7. The heading to Article 102.007, Code of Criminal
Procedure, is amended to read as follows:
Art. 102.007. FEE FOR COLLECTING AND PROCESSING CHECK OR
SIMILAR SIGHT ORDER.
SECTION 8. Subsections (a) and (e), Article 102.007, 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 check or similar sight order, as defined by
Section 1.07, Penal Code, if the 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.
(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 check or similar sight order or the
holder's [its] assignee, agent, representative, or any other person
retained by the holder to seek collection of the check or order.
SECTION 9. Article 102.0071, Code of Criminal Procedure, is
amended to read as follows:
Art. 102.0071. JUSTICE COURT DISHONORED CHECK OR SIMILAR
SIGHT ORDER. 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 check or similar sight order, as
defined by Section 1.07, Penal Code, that was subsequently
dishonored, the court may collect from the defendant and pay to the
holder of the check or order the fee permitted by Section 3.506,
Business & Commerce Code.
SECTION 10. 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 check or similar sight
order (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 check or similar sight order.
SECTION 11. The heading to Section 162.409, Tax Code, is
amended to read as follows:
Sec. 162.409. ISSUANCE OF BAD CHECK OR SIMILAR SIGHT ORDER
TO LICENSED DISTRIBUTOR, LICENSED SUPPLIER, OR PERMISSIVE
SUPPLIER.
SECTION 12. Subsections (a) and (d), Section 162.409, Tax
Code, are amended to read as follows:
(a) A person commits an offense if:
(1) the person issues or passes a check or similar
sight order, as defined by Section 1.07, Penal Code, 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 check or order as well as all other checks or orders
outstanding at the time of issuance;
(2) the payee on the 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 check or similar sight order, as defined by Section 1.07,
Penal Code, 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 13. 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 14. This Act takes effect September 1, 2013.