Austin Criminal Defense Lawyer - Hot Check | Theft by Check - Law Office of Justin Copeland

Common Texas Theft Crimes

Theft / Shoplifting: The Law; Explanation of the Law; Punishment Ranges; Defenses

Theft by Check / Hot Check: The Law; Explanation of the Law; Punishment Ranges; Defenses

Theft / Shoplifting

The Law

TEXAS PENAL CODE - 31.03 THEFT.

	(a)  A person commits an offense if he 
unlawfully appropriates property with intent to deprive the owner 
of property.
	(b)  Appropriation of property is unlawful if:                                 
		(1)  it is without the owner's effective consent;                             
		(2)  the property is stolen and the actor appropriates 
the property knowing it was stolen by another;  or
		(3)  property in the custody of any law enforcement 
agency was explicitly represented by any law enforcement agent to 
the actor as being stolen and the actor appropriates the property 
believing it was stolen by another.
	(c)  For purposes of Subsection (b):                                           
		(1)  evidence that the actor has previously 
participated in recent transactions other than, but similar to, 
that which the prosecution is based is admissible for the purpose of 
showing knowledge or intent and the issues of knowledge or intent 
are raised by the actor's plea of not guilty;
		(2)  the testimony of an accomplice shall be 
corroborated by proof that tends to connect the actor to the crime, 
but the actor's knowledge or intent may be established by the 
uncorroborated testimony of the accomplice;
		(3)  an actor engaged in the business of buying and 
selling used or secondhand personal property, or lending money on 
the security of personal property deposited with the actor, is 
presumed to know upon receipt by the actor of stolen property (other 
than a motor vehicle subject to Chapter 501, Transportation Code) 
that the property has been previously stolen from another if the 
actor pays for or loans against the property $25 or more (or 
consideration of equivalent value) and the actor knowingly or 
recklessly:
			(A)  fails to record the name, address, and 
physical description or identification number of the seller or 
pledgor;
			(B)  fails to record a complete description of the 
property, including the serial number, if reasonably available, or 
other identifying characteristics;  or
			(C)  fails to obtain a signed warranty from the 
seller or pledgor that the seller or pledgor has the right to 
possess the property.  It is the express intent of this provision 
that the presumption arises unless the actor complies with each of 
the numbered requirements;
		(4)  for the purposes of Subdivision (3)(A), 
"identification number" means driver's license number, military 
identification number, identification certificate, or other 
official number capable of identifying an individual;
		(5)  stolen property does not lose its character as 
stolen when recovered by any law enforcement agency;
		(6)  an actor engaged in the business of obtaining 
abandoned or wrecked motor vehicles or parts of an abandoned or 
wrecked motor vehicle for resale, disposal, scrap, repair, 
rebuilding, demolition, or other form of salvage is presumed to 
know on receipt by the actor of stolen property that the property 
has been previously stolen from another if the actor knowingly or 
recklessly:
			(A)  fails to maintain an accurate and legible 
inventory of each motor vehicle component part purchased by or 
delivered to the actor, including the date of purchase or delivery, 
the name, age, address, sex, and driver's license number of the 
seller or person making the delivery, the license plate number of 
the motor vehicle in which the part was delivered, a complete 
description of the part, and the vehicle identification number of 
the motor vehicle from which the part was removed, or in lieu of 
maintaining an inventory, fails to record the name and certificate 
of inventory number of the person who dismantled the motor vehicle 
from which the part was obtained;
			(B)  fails on receipt of a motor vehicle to obtain 
a certificate of authority, sales receipt, or transfer document as 
required by Chapter 683, Transportation Code, or a certificate of 
title showing that the motor vehicle is not subject to a lien or 
that all recorded liens on the motor vehicle have been released;  or
			(C)  fails on receipt of a motor vehicle to 
immediately remove an unexpired license plate from the motor 
vehicle, to keep the plate in a secure and locked place, or to 
maintain an inventory, on forms provided by the Texas Department of 
Transportation, of license plates kept under this paragraph, 
including for each plate or set of plates the license plate number 
and the make, motor number, and vehicle identification number of 
the motor vehicle from which the plate was removed;
		(7)  an actor who purchases or receives a used or 
secondhand motor vehicle is presumed to know on receipt by the actor 
of the motor vehicle that the motor vehicle has been previously 
stolen from another if the actor knowingly or recklessly:
			(A)  fails to report to the Texas Department of 
Transportation the failure of the person who sold or delivered the 
motor vehicle to the actor to deliver to the actor a properly 
executed certificate of title to the motor vehicle at the time the 
motor vehicle was delivered;  or
			(B)  fails to file with the county tax 
assessor-collector of the county in which the actor received the 
motor vehicle, not later than the 20th day after the date the actor 
received the motor vehicle, the registration license receipt and 
certificate of title or evidence of title delivered to the actor in 
accordance with Subchapter D, Chapter 520, Transportation Code, at 
the time the motor vehicle was delivered;  
		(8)  an actor who purchases or receives from any source 
other than a licensed retailer or distributor of pesticides a 
restricted-use pesticide or a state-limited-use pesticide or a 
compound, mixture, or preparation containing a restricted-use or 
state-limited-use pesticide is presumed to know on receipt by the 
actor of the pesticide or compound, mixture, or preparation that 
the pesticide or compound, mixture, or preparation has been 
previously stolen from another if the actor:
			(A)  fails to record the name, address, and 
physical description of the seller or pledgor;
			(B)  fails to record a complete description of the 
amount and type of pesticide or compound, mixture, or preparation 
purchased or received;  and
			(C)  fails to obtain a signed warranty from the 
seller or pledgor that the seller or pledgor has the right to 
possess the property;  and
		(9)  an actor who is subject to Section 409, Packers and 
Stockyards Act (7 U.S.C. Section 228b), that obtains livestock from 
a commission merchant by representing that the actor will make 
prompt payment is presumed to have induced the commission 
merchant's consent by deception if the actor fails to make full 
payment in accordance with Section 409, Packers and Stockyards Act 
(7 U.S.C. Section 228b).
	(d)  It is not a defense to prosecution under this section 
that:             
		(1)  the offense occurred as a result of a deception or 
strategy on the part of a law enforcement agency, including the use 
of an undercover operative or peace officer;
		(2)  the actor was provided by a law enforcement agency 
with a facility in which to commit the offense or an opportunity to 
engage in conduct constituting the offense;  or
		(3)  the actor was solicited to commit the offense by a 
peace officer, and the solicitation was of a type that would 
encourage a person predisposed to commit the offense to actually 
commit the offense, but would not encourage a person not 
predisposed to commit the offense to actually commit the offense.

TEXAS PENAL CODE - 31.09. AGGREGATION OF AMOUNTS INVOLVED IN THEFT.

When amounts are obtained in violation of this chapter pursuant to one scheme 
or continuing course of conduct, whether from the same or several sources, 
the conduct may be considered as one offense and the amounts aggregated in 
determining the grade of the offense.

Explanation of Theft / Shoplifting Law

In Texas, theft is the intentionally taking property that does not belong to you with the intent to keep that property. In Texas, receipt of stolen property that you know is stolen is also classified as theft.

There are also a bunch of provisions in Texas theft law that apply to very specific situations and businesses such as purchasing used cars, purchasing salvaged vehicles, purchasing used or secondhand household items, purchasing livestock, and purchasing various restricted pesticides. If you regularly engage in one of the above businesses you should immediately contact an attorney to advise you of the specific laws and regulations that could impact your business.

Punishment Ranges for Theft / Shoplifting

Class C Misdemeanor if the value of the property is less than $50.
Class B Misdemeanor if the value of the property is $50 or more but less than $500.
Class B Misdemeanor if the value of the property is less than $50, and the defendant has previously been convicted of any other theft.
Class A misdemeanor if the value of the property is $500 or more but less than $1,500.
State Jail Felony if the value of the property is $1,500 or more but less than $20,000.
State Jail Felony if the value of the property is less than $1,500, and the defendant has been previously convicted two or more times of any other theft.
State Jail Felony if the stolen item is a firearm.
Third Degree Felony if the value of the stolen property is $20,000 or more but less than $100,000.
Second Degree Felony if the value of the stolen property is $100,000 or more but less than $200,000.
First Degree Felony if the value of the stolen property is $200,000 or more.

Theft Enhancements

The prosecutor can also bump up the punishment range by one step if:

The defendant was a public servant at the time of the offense and the property appropriated came into the defendant's custody, possession, or control by virtue of his status as a public servant.
The defendant was in a contractual relationship with government at the time of the offense and the property appropriated came into the defendant's custody, possession, or control by virtue of the contractual relationship.
The owner of the property appropriated was at the time of the offense an elderly individual.

Theft / Shoplifting Defenses

There are five typical ways to defend theft cases:

You can try to prove that the property actually belongs to you. It is not theft to take your own property.
You can try to prove that the owner of the property gave consent for you to take the property. Consent can either be express or implied. Express consent is when the owner says orally or in writing, "You can take the property." Implied consent comes from all of the facts surrounding the taking of the property. If, due to the circumstances, someone thinks they have the right to take the property there may be implied consent, even if the owner never actually said, "You can take the property."
You can try to prove that you never intended to keep the property. People borrow things all of the time. Borrowing, or intending to borrow property is not theft.
You can try to prove that you lacked intent to take the property. Accidents, absent-mindedness, and mistakes happen to everyone. Mistakenly walking out of a store with an item you intended to purchase is not theft so long as you can somehow prove your intent. Unfortunately, everyone uses this excuse and the prosecutors have it heard it a million times. This defense is best presented at trial through your testimony to the jury.
Sometime prosecutors and police charge people with higher level thefts than actually committed. This often occurs as the result of an improper combination of thefts committed by two or more people, or by mistakenly over-valuing property in order to reach a higher level offense. A lawyer can help determine the true legal value of the property which may reduce the charge and the potential punishment.

Sometimes, if you do not have any previous criminal history, a prosecutor will agree to dismiss theft / shoplifting charges if you agree to take a Theft class, pay restitution, pay a fine, and perform community service. It all depends on the facts of the case, your personal situation, your criminal history, and the prosecutor you are dealing with. If the prosecutor will not agree to outright dismiss the charge they will often agree to deferred adjudication which allows the charge to later be dismissed if you comply with certain conditions.

Theft charges are very serious and can have a major impact on your future. A Theft conviction will make it difficult to: find a job, get housing, obtain credit, get into school, obtain a security clearance, or obtain a professional license. You should seek professional help from an attorney if faced with any type of theft charge.

Theft by Check / Hot Check

The Law

TEXAS PENAL CODE 31.06 - Presumption of Theft by Check

(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 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 to 
avoid payment for service under Section 31.04 (Theft of Service) 
(except in the case of a postdated check or order) if:
		(1)  he had no account with the bank or other drawee at 
the time he issued the 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 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
		(3)  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."
	(c)  If written notice is given in accordance with Subsection 
(b), it is presumed that the notice was received no later than five 
days after it was sent.
	(d)  Nothing in this section prevents the prosecution from 
establishing the requisite intent by direct evidence.
	(e)  Partial restitution does not preclude the presumption 
of the requisite intent under this section.
	(f)  If the actor obtained property by issuing or passing a 
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 check or 
order, if:
		(1)  the actor ordered the bank or other drawee to stop 
payment on the check or order;
		(2)  the bank or drawee refused payment to the holder on 
presentation of the 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.

Explanation of Hot Check Law

Theft by check cases arise out of two common scenarios. First, checks are written on a closed account. Second, checks are written on an account with insufficient funds. If you wrote a check on an account with insufficient funds the merchant and the bank are required to notify you in very specific ways. A lawyer can help you figure out if they correctly followed the law.

Have you been notified of a hot check? Is there a warrant out for your arrest, or have you received a summons to appear in court? Or have you successfully paid off the check, but don’t know if it’s still on your record?

There are both short term and long term consequences to a Theft by Check / Hot Check. Short term, a warrant for your arrest may be issued. Without a lawyer you will typically spend at least 2 hours and possibly more waiting to speak with a judge or prosecutor. You can't leave until you've talked to someone or else the court may forfeit your bond, issue a warrant for your arrest, and you may be liable for hundreds of dollars more in costs and fees. You may have to appear in court a second or third time before you get everything straightened out.

The long term consequences are much worse. With public records databases available on the Internet, an unresolved Theft by Check case can interfere with your credit, your job, and your housing. Because theft offenses are considered crimes of moral turpitude, it might also affect your immigration status, your professional licensure, and your security clearance if you work in a government job.

We can help solve all of the problems associated with a Theft by Check. We can work together to ensure that the checks are paid off, we can appear at court for you, and we can work to get your case dismissed so that it can be removed from your record.

If you already have a Theft by Check case that you paid off and it was dismissed, unless you hired a lawyer to file a Petition for Expunction, a copy of that arrest is still on your criminal record. Even if we did not work on your original case, we can file a Petition to get all records of the theft expunged from your record. After the expunction, you can even lawfully deny that the arrest ever happened.

Punishment Ranges for Hot Checks

Class C Misdemeanor if the value of the hot check is less than $20.
Class B Misdemeanor if the value of the hot check is $20 or more but less than $500.
Class B Misdemeanor if the value of the hot check is less than $20, and the defendant has previously been convicted of any other theft.
Class A misdemeanor if the value of the hot check is $500 or more but less than $1,500.
State Jail Felony if the value of the stolen property is $1,500 or more but less than $20,000.
State Jail Felony if the value of the stolen property is less than $1,500, and the defendant has been previously convicted two or more times of any other theft.
Third Degree Felony if the value of the stolen property is $20,000 or more but less than $100,000.
Second Degree Felony if the value of the stolen property is $100,000 or more but less than $200,000.
First Degree Felony if the value of the stolen property is $200,000 or more.

The punishment range depends entirely on the number and value of hot checks written. If more than one check is written during a short period of the time, the prosecutor may choose to add up the value of all checks written to seek a greater punishment.

What If You've Been Convicted of Hot Check / Theft By Check Before?

If you have previous hot check convictions, the prosecutors may choose to enhance the charge. Enhancing the charge allows the prosecutor to increase the possible punishment you might face. Here are the typical hot check enhancements:

Enhanced to a Class B Misdemeanor from a Class C Misdemeanor, if the hot check is less than $20 and you have previously been convicted of any other theft, not just hot check theft.
Enhanced to a State Jail Felony, if the hot check is less than $1,500 and you have previously been convicted two or more times of any other theft, not just hot check theft.

Defending Hot Check Charges

Often, hot check cases can get dismissed if you pay restitution. Restitution involves paying off the balance of the checks to the court. A lawyer can help establish a payment plan with the court to ensure that a theft conviction does not end up on your record.

Sometime checks get stolen. It is important to immediately report lost or stolen checks to your bank and to the police. Many times a handwriting analysis and comparison is needed to exonerate the original check owner.

We Can Help

At the Law Office of Justin Copeland we are dedicated to defending the rights of those in need, and we are committed to the presumption of innocence. We believe in our clients and will aggressively defend your rights, no matter the situation. We recognize that every case is different, and we will build a custom defense strategy based solely on the merits of your case. You can rest assured that we will aggressively fight for your rights.

While we deal with the legal issues in your case, we fully understand the pressures and anxieties that you have to deal with on a day to day basis. We will work to help you through this very difficult time. We are committed to providing you with a helping hand as well as an aggressive legal representation.

Contact an Austin Criminal Defense Lawyer at the Law Office of Justin Copeland Today

At the Law Office of Justin Copeland we believe a client's defense is only as good as the relationship with his or her attorney. This relationship is best developed through open communication. For this reason, the Law Office of Justin Copeland is available by phone 24 hours a day, seven days a week, and Mr. Copeland personally returns all of his phone calls. We urge you to contact us today to setup a free initial consultation.

Contact Us

Travis County Office
1307 Nueces
Austin, TX 78701

Williamson County Office
600 Forest St.
Georgetown, TX 78626

Phone: 512.565.7012
Fax: 512.722.7755
Email: jcopeland@jcopelandlaw.com