BURNET COUNTY ATTORNEY S OFFICE Don't Get Burned By A Hot Check

Transcription

1 Eddie Arredondo Hot Check Division Burnet County Attorney 220 South Pierce Phone: (512) or (512) Burnet, Texas Fax: (512) BURNET COUNTY ATTORNEY S OFFICE Don't Get Burned By A Hot Check The County Attorney's Office is responsible for prosecuting persons who commit misdemeanor crimes, such as Theft by Check, in Burnet County. This information has been prepared to assist individuals and businesses who accept worthless checks in the course of business transactions. The primary purpose of this information is to inform you of the law and the procedures that must be followed when filing a Theft by Check complaint with the County Attorney's Office. It is important that you follow these procedures with no exceptions. This should minimize the number of worthless checks that you accept and reduce the possibility of our office being unable to prosecute the check writer. It is important to understand that NOT all worthless checks are criminal matters. If we cannot accept your case, then contact your local Justice of the Peace to file Issuance of a Bad Check charge or a civil suit. We Prosecute Hot Checks Checks stamped: - INSUFFICIENT FUNDS - ACCOUNT CLOSED - STOP PAYMENT* Following County Attorney's Office hot check procedures aides us in the prosecution of the check writer and the recovery of restitution for you. * There are restrictions on stop payment checks. The check must be given for property and not for a service. Checks Which Cannot Be Accepted For Prosecution: - Forged / Irregular Signatures - Postdated or Hold Checks - Checks Stamped Uncollected Funds or Refer to Maker - Checks Deposited Over 30 Days From the Date of the check - Checks Written for Payment on Account, Agreement or Contract - Checks Received In the Mail, Checks Where No ID Was Taken, or Checks Where there is No Witness. - Checks Under $1, That Are Over 2 Years Old

2 Tips to Use When Accepting a Check 1. DATE Checks must be dated on the same date that they are written. Postdated checks cannot be prosecuted. 2. SIGNATURE Do not accept checks that are already signed. Check writer should sign the check in your presence. Signature should match the printed name on the check. 3. COMPLETE ADDRESS AND TELEPHONE NUMBERS This information will assist you in locating and notifying the check writer if the check is worthless. P.O. Box addresses are not adequate. 4. CONFIRM IDENTITY It is essential that you obtain valid picture ID (drivers license or ID card) from the check writer. Verify that the ID matches the check writer. Record the ID number, race, sex and date of birth from the ID. 5. WRITTEN AMOUNTS AND NUMBERS MUST CORRESPOND Checks with discrepancies in amounts can not be prosecuted. 6. IDENTIFY WHO ACCEPTED THE CHECK The clerk who accepts the check should write their initials on the check. It is essential that we have a witness to prove the identity of the check writer in court. Common Tricks Used by Hot Check Writers - Possesses no identification - Writes a fake driver's license number on the check - Verbally tells you a fake driver's license number - Check writer returns merchandise, asks for a cash refund, on the same day check was written - Two or three party checks - Temporary checks - Writes the wrong date on the check - Talks clerk into holding check or postdating the check - Third person presents the check to the clerk - Out of town or out of state checks Theft by Check is a Crime There are two offenses in the Texas Penal Code which can be used in dealing with hot checks: Theft (P.C ) and Theft of Service (P.C ). These offenses range from Class C Misdemeanor to Felony of the first degree, depending on the amount of the check. (1) Class C Misdemeanor: if the value of the check is less than $20.00; punishable by a fine not to exceed $ (2) Class B Misdemeanor: if the value of the check is $20.00 or more but less than $500.00; punishable by a fine not to exceed $2, or 180 days in jail or both. (3) Class A Misdemeanor: if the value of the check is $ or more but less than $1,500.00; punishable by a fine not to exceed $4, or 1 yr. in jail or both.

3 (4) All checks that exceed $1, are Felonies and they are referred to the District Attorney's Office. Notification to the Check Writer The law requires us to be able to prove that the person intended to deprive you of your property or avoid payment for your services. Penal Code Section (Presumption for Theft by Check) requires that you give written notice to a person who has given you a worthless check. This notice must be sent to the person by certified or registered mail with return receipt requested. The notice must contain 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." The law also states that you must allow the person 10 days, from the date of receipt of the notice, to pay you in full. If the person fails to pay you in full after the 10 days, you may file a criminal complaint with the County Attorney's Office. It is not a defense to prosecution that the check writer did not receive the notice. The law only requires you to send the notice. If the Postal Service is unable to deliver the notice or the check writer refuses to accept the notice, you may still file a criminal complaint with the County Attorney's Office. Restitution When you file a Theft by Check complaint with the County Attorney's Office, you are alleging a person committed a criminal offense. If your case goes to court, and the check writer is found guilty, the Judge will usually order the check writer to make restitution to you. Section 3.506, Texas Business and Commerce Code, states that you may add a processing fee of up to $30.00 to the amount of a dishonored check that you are attempting to collect. This fee plus the amount of the check is the total amount of your restitution. The function of the County Attorney's Office is to prosecute persons who have violated the law. Recovery of stolen property and collection of restitution is a major goal of this office. However, there may be times when restitution cannot be collected from the check writer and they are sentenced to jail. How to Process a Worthless Check Complaint 1. Present the check to the named bank or deposit the check into your bank account. The named bank will stamp the check indicating the reason that the check was not honored. 2. Mail a demand for payment letter (written notice) to the check writer at the address listed on the check. This must be done by certified or registered mail with return receipt requested. Always retain a copy of the letter for your records. You may obtain a A Sample

4 Letter from the County Attorney's Office. 3. File a complaint with the County Attorney's Office. Furnish the following documents: - Original check - Certified or registered mail receipt - Completed and accurate affidavit (blank affidavits may be obtained from the County Attorney's Office) 4. DO NOT accept payment from the check writer after filing the complaint. Once the complaint has been filed with the County Attorney's Office, the matter is under the jurisdiction of the Courts. Direct the check writer to contact the County Attorney's Office, Check Division. If payment is mailed to you after the check is filed, forward the entire payment to the County Attorney's Office. After the Complaint is Filed The following is a list of steps that are taken after you have filed the check with the County Attorney's Office: 1. Case is reviewed to determine if it can be prosecuted. 2. If the County Attorney's Office cannot prosecute a check, it will be returned to you with a written explanation. 3. County Attorney's Office mails a letter to the check writer. This is the only opportunity to make restitution prior to a warrant being issued. 4. If the case is not resolved, the check writer is identified and warrant papers are prepared. You will be contacted to sign the arrest warrant affidavit. 5. Arrest warrant is signed by the Judge. 6. The check writer is arrested. 7. Check writer appears in court, pleads guilty or requests a trial. 8. The check writer is sentenced by the Judge or a trial is held. 9. The County Attorney's Office will forward restitution to you once it is obtained from the check writer. Office Statement Concerning Filing Deadline The Statute of Limitations on a check under the value of $1, is two years. The County Attorney's Office faces a major problem with checks which are filed, in some cases, as much as 18 months after the check was written. This kind of delay allows the check writer to move on, so their trail is cold. The result is a low success rate in locating and prosecuting these persons.

5 Fax ( ) - Phone ( ) -, 201 To: Re: Check No., dated the day of,in the Amount of $. Dear : The above referenced check has been returned by your bank marked insufficient funds. 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 of within ten (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. Therefore, you have ten (10) business days from receipt of this letter to present payment in the form of cash, money order or cashier s check for the checks or the matter will be referred to the Burnet County Attorney s Office. There will also be an additional $30.00 charge for all returned checks, please include this in your payment. A copy of this letter has also been sent by regular mail. Sincerely cc: Eddie Arredondo Burnet County Attorney

6 THE STATE OF TEXAS COUNTY OF BURNET AFFIDAVIT FOR WARRANT OF ARREST MAKER OF THE CHECK D.O.B. Date of Check Check # Check Amount $ Check Writer s DL or ID# State VICTIM Business Name Address Phone # Person accepting check Manager Property or service obtained Reason check returned ( ) NSF ( ) Closed Account ( ) Stop Payment My name is. I am over the age of eighteen years and competent to make this affidavit. I am employed by or own the business listed above and have the authority to make this affidavit on behalf of the business indicated above. I have good reason to believe and do believe that on the above listed date in Burnet County, Texas, that the check writer listed above committed the offense of theft/issuance of a bad check by then and there passing a check to the person named above in the amount listed above in exchange for the property or service listed above. The check was not postdated or a hold check and said check was believed to have been good at the time it was accepted. The check was presented to the bank for payment, was dishonored by the bank, and returned to say business marked as indicated above. Because of the above information, I request that a Warrant of Arrest be issued for the check writer in accordance with the law. Affiant s Printed Name Affiant s Signature On this day of, 200, I hereby acknowledge that I have examined the foregoing Affidavit and have determined that probable cause exists for the issuance of an arrest warrant for the individual accused herein. However, the clerk shall first issue a summons to the defendant at the address shown on the information filed herein commanding the defendant to appear in this court. If the defendant fails to appear, the clerk shall then issue a warrant for the arrest of the defendant to be placed in the Burnet County Jail, the defendant s bond is to be set at $. Justice of the Peace, Pct., Burnet Co. County Court at Law Judge, Burnet Co.