Bad Check Charges
If a business owner or other person receives a check for goods or services, and that check is returned for insufficient funds then the case can be turned over to the District Attorney's Office. In many of these cases, the District Attorney's Office will initiate a criminal prosecution for offense that is generally classified as a Class C misdemeanor.
Houston Bad Check Lawyer
If the District Attorney’s Office decides to prosecute the case, then it will ask the court to issue a warrant for the arrest of the person who issued the check. If a warrant for your arrest was issued for a bad check, then contact Matt Horak locally at (713) 225-8000 or toll-free at (800) 225-8009.
Horak Law represents individuals charged with worthless check cases and other theft crimes throughout the greater Houston area, including Harris, Montgomery, Fort Bend, Brazoria, Galveston, Liberty, or Waller Counties, in The Woodlands, Cypress, Tomball, Spring, Kingwood, Baytown and Pasadena and Sugar Land.
Information on Hot Check Charges in Harris County
- Section 32.41 Prohibits Passing a Bad Check
- Penalties for Issuing a Bad Check
- Presumptions in Worthless Check Cases
Texas Penal Code Section 32.41 prohibits the issuance of a bad check. Section 32.41 provides that “[a] person commits an offense if he issues or passes a check ... for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank.” Tex. Penal Code Ann. § 32.41(a) (2008).
In a criminal prosecution, the prosecutor for the State of Texas may attempt to prove the knowledge element beyond all reasonable doubt through direct evidence. Id. § 32.41(b). In other cases, the prosecutor may rely on certain presumptions allowed under the law.
Section 32.41 provides that knowledge may be presumed if the person had no account with the bank at the time the check was issued, or if “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.” Id.
To satisfy the notice requirement, the statute provides that written notice may be sent by first class or certified mail, at the address shown on the check, with a demand for payment within ten days of receipt. Id. § 32.41(c).
Thus, Texas Penal Code Section 32.41 defines the criminal offense of issuing a bad check, provides an evidentiary burden, and prescribes a method for satisfying that burden by presumption.
The crime for the issuance of a bad check is in the forgery chapter of the penal code, not in the theft chapter of the penal code. In fact, theft and issuance of bad checks are not the same offense because each offense requires proof of an element that the other does not. Passing a bad check under Section 32.41 is not a lesser included offense of a crime listed under Section 31.03 for theft or Section 31.04 for theft of services.
Certain criminal offenses, like presenting a worthless check under Section 32.41 and making a false statement to obtain property or credit under Section 32.32, do not depend on the value of property fraudulently obtained or the amount of pecuniary loss.
Regardless of the amount of the check, the offense of issuance of a bad check is “a Class C misdemeanor.” See Tex. Penal Code Ann. § 32.41(f). “An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.” Id. § 12.23 (Vernon 2003). If the check was for a court ordered child support payment, then the bad check can be prosecuted as a Class B misdemeanor.
Texas Penal Code § 32.41 prohibits a person from passing or presenting a check for payment knowing that that the account does not have sufficient funds to cover the payment in full of the check as well as other outstanding checks. The most contested issue in these cases is whether the person who presented the check really KNEW that the funds in the account were not sufficient.
Section 32.41(b) provides that the prosecution can prove knowledge by direct evidence. In many of theses cases, proving knowledge through direct evidence would be difficult for the prosecutor. The legislature has made that task easier by creating certain presumptions that can allow, but do not require, that the jury presume the person had knowledge under certain circumstances.
Additionally, the bad check statute also provides that the issuer's knowledge of insufficient funds is presumed if:
- the person who presented the check had no account with the bank at the time he or she issued the check;
- payment was refused by the bank for insufficient funds or lack of funds within 30 days after the check was issued; and
- the issuer of the check failed to pay the check holder in full within 10 days after receiving notice of the bad check and the banks refusal to honor the check.
The knowledge presumption in bad check cases does not exist if the check is a postdated check or order.
Additionally, the notice provision in Section 32.41(b)(2) may be actual notice or notice in writing if:
- the notice is sent by registered mail or certified mail with return receipt requested, by telegram with report of delivery requested, or by first class mail if the letter was returned unopened with markings indicating that the address is incorrect and that there is no current forwarding order;
- is addressed to the issuer at his address shown on: (A) the check or order; (B) the records of the bank or other drawee; or (C) the records of the person to whom the check or order has been issued or passed; and
- contains 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."
Section 32.41(d) provides that if the notice is send by registered mail or certified mail with return receipt requested (or one of the other listed methods) then “it is presumed that the notice was received no later than five days after it was sent.”
After the case is referred for prosecution, a person charged with passing a bad check under Section 32.41 may pay restitution for the bad check through the prosecutor’s office if collection and processing were initiated through the prosecutor’s office. In other cases, the restitution can be paid through the court.
Finding a Bad Check Defense Attorney in Houston, TX
If you have been accused of issuing a bad check then contact an experienced criminal defense attorney in Houston at Horak Law. Matt Horak represents clients throughout the greather Houston area including all of Harris County, TX.
Call us today locally at (713) 225-8000 or toll-free at (800) 225-8009 to discuss your case and possible defenses to fight the criminal misdemeanor charges.