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HOT CHECK
SECTION
IN ORDER FOR THE 38TH JUDICIAL DISTRICT ATTORNEY'S
OFFICE TO PROSECUTE YOUR HOT CHECK, THE BAD CHECK MUST BE IN THE
AMOUNT OF $1,500.00 OR MORE
Purpose.
The purpose of the Hot Check Section is to prosecute
those individuals who commit theft by using a worthless check. It is
not a collection agency. However, we will
do everything legally possible to collect restitution.
Our services are free. We want to
help our business's succeed, and prevention of this
crime is our ultimate goal.
Goal.
Our immediate goal is to bring about a conviction for
the offense of theft by check and gain restitution for the victim.
However, restitution cannot be obtained in every case.
If you expect restitution in every case, you are being
unrealistic and will be disappointed.
"Theft by check" law.
A person commits theft when property, services or cash
is
obtained by deception through use of a check that is
invalid due to insufficient funds or a
closed account. The owner must exchange the property,
services or cash at the time the check writer tenders the check.
Otherwise, it is an extension of credit and not a theft case. It is
also an offense for a check writer to issue a stop payment order and
refuse to
either pay the check or return the merchandise within
10 days after receiving notice. (Penal Code Sec. 31.03 and 31.04)
"Issuance of bad check" law.
If there was an extension of credit, and the check
writer
knew there were insufficient funds in the bank when the
check was written, it is a Class C
misdemeanor offense of Issuance of a Bad Check. This
case is filed with the Justice of
the Peace in the precinct where the check was written.
(Penal Code Sec. 32.41)
Legal requirements.
The law requires the check to be presented to a bank
within 30
days. Additionally, there is a presumption of theft if
a letter is sent to the check writer by
certified mail, return receipt requested giving the
check writer 10 days to pay the check
amount and processing fee. This is only a presumption;
the letter may be sent by regular
mail.
The 10-day grace period allows those individuals who are careless,
mistaken, or made a banking error to correct the situation. The Texas
Penal Code specifies the exact
language that must be used in the letter. A letter
should be sent to every hot check writer.
(Penal Code Sec. 31.06)
STEP-BY-STEP
COLLECTION PROCEDURE
1.
"Closed account" checks.
No letter is required; go to step 5 below.
2.
"NSF" checks.
Send the attached letter by regular mail to the address
shown on
(1) the check, (2) bank records or (3) your records.
Keep a copy of the letter; if
there is no payment within 10 days, go to step 4 below.
3. "Stop payment" checks.
Send the attached letter by regular mail to the
address
shown on the check. Keep a copy of the letter. You must
give the check writer
the option to return the merchandise or pay the check
amount. If the merchandise
is returned, you can either accept or reject the
merchandise but cannot file a criminal
case. If there is no payment within 10 days, go to step
4 below.
4. Documents
you must bring to the District Attorney.
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Original check
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A copy of the letter sent to the
check writer; if the letter is returned because of a
bad address, bring the unopened letter, also.
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Affidavit for warrant of arrest.
Fill out this form (see attached) and swear to it in
the presence of a notary. If a notary is not available, you can use
the notary at the
District Attorney's office.
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Copies of the invoice, work
order, cash register receipt (if any exist) and any notes
about the transaction and
the check writer. (This information is not required but is
sometime helpful.)
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5. Deadline.
Bring the above documents to the District Attorney's
office within 30 days
of the date the check was written. If the check is over
30 days old, the case will be
declined unless there is a reasonable explanation for
the delay.
When too much time goes by, the check writer has moved
and cannot be located. This causes more work for
us and less chance of restitution for you.
Additionally, your delay could cause other
merchants to be victims of other hot checks by the same
check writer.
6. Action
by District Attorney.
Once we receive the required documents from you, we
will send a postcard to the check writer demanding
payment. If there is no response from the check writer within 10 days,
we will type the complaint, sign it, and file a criminal case of theft
by check or issuance of bad check using the affidavit for warrant of
arrest
from what you submitted. After the case is filed, the
defendant is summoned to court. If the defendant fails to appear in
court, the clerk sends an arrest warrant to the Sheriffs Office.
Additionally, we cannot take further action until the check writer is
arrested and the case is placed on the court docket. If the check
writer has not been arrested, and you
see the check writers or become aware of a new address
for the check writer, you should
call your local police department or the Sheriffs
office and ask them to verify the
warrant and arrest the check writer.
7.
After arrest.
If arrested, the check writer is given a court date. If
the check writer
cannot pay the check amount and fees in a lump sum, but
is eligible for a probated
sentence, he can be placed on probation with monthly
payment obligations. His
probation can be
revoked, and he can be sentenced to
jail if
he has the ability to pay and
does not pay as ordered.
8.
Order or payment.
When we receive several checks written by the same
check
writer, and the check writer starts making restitution,
the payments are accepted in the
order that the checks
were turned in to the District Attorney's office:
first come, first
Serve.
HIGH RISK CHECKS
Temporary checks.
Checks that are not personalized are often a risk. They
do not
have the account owner's name printed on each check. How can you know
that the
person giving you the check owns the account on which the check is
drawn?
Low numbered checks.
9 out of 10 bad checks have numbers smaller than 300.
No driver's license.
Beware of checks offered by check writers who present
passports, green cards, student IDs and military IDs.
Non-local check writers. Non-local check writers are
much harder for us to identify
and prosecute. Out-of-state bank records are extremely
difficult to obtain.
No residence address on the check.
A post office box printed on a check as an
address has been shown to be a risk factor.
Illegible signature on check.
A sloppy signature may be an attempt to prevent easy
comparison with the signature on an ID.
Checks written for more than one purchase.
Cash is a highly desirable commodity to steal.
Multiple checks on same day.
The check writer may be stealing as much as
possible from you before you find out that the checks
will not be honored.
Checks written late in the day.
Check writers know when banks close and they
know that the merchant cannot verify funds in the
account after the bank is closed.
Company checks.
A check receiver cannot be sure that the person
presenting the check is authorized to sign a check drawn on the
account; the company employee
probably doesn't know the current balance on the
account.
Two-party checks.
It is usually
impossible for us to establish which of the parties
had intent to
deceive.
Pre-signed checks.
You cannot swear the signer signed the check in your
presence,
and nobody can prove the signer knew the amount for
which the check would be
written.
PROCEDURE WHEN TAKING A CHECK
Be thorough when accepting a check as payment.
Your business should set a
policy for all customers, so no one will have a reason
to feel that they are being
treated unfairly. Post
the District Attorney's
HOT CHECK LIST
(shown below) so
each cashier
can easily see it. It has the following reminders:
Is it dated today?
Checks must be dated the same day they are given.
Do $ amounts match?
If not, a bank will not accept it.
Good signature?
The signature must match the name printed on the check.
Do
not accept previously signed checks. Compare the
signature with the one on the
ID.
Street address?
Require a permanent street address, not a P.O.
Box.
Compare/write DL/ID.
Record on the check the type of ID and ID number. If
the Drivers License number is pre-printed on the check,
compare it to the DL itself. A Texas
Drivers License has 8 numbers starting with a 0, 1 or
2. Get the Drivers License number for a person
cashing a company check also.
Write the date of birth.
In case the DL/ID # is written down wrong, we can
use a DOB to locate a check writer. Without an ID
number or date of birth, we
cannot file a criminal case.
Write your initials.
Put your initials on every check you cash for testimony
purposes after you have followed the above steps.
You can print this form out below on the bottom of this page and place
it next to your register
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38TH
Judicial District Attorney's Office
HOT CHECK LIST
Dated today
$ amounts match?
Good signature?
Street address?
Compare the photo
Compare/write DL/ID #
Write date of birth
Write your initials
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Remember that crime prevention begins with alert and
knowledgeable citizens. Hot
checks can be controlled with your help.
If you have any questions,
please email Investigator
Monica
Cervera or call at (830) 741-6187.
FREQUENTLY ASKED QUESTIONS
Q. Can I offer to dismiss the theft case if the money
is paid?
A. No. It is against the law to do so. Once the check
is filed with the District Attorney's
Office, we assume full control of the matter.
Q. Can I accept payments after the check has been filed
with the District Attorney's
office.
A. No. The check writer must make restitution through
the District Attorney's office.
Q. What happens to the check after the case is over?
A. If paid, it is returned to the check writer; if
never collected, it is returned to you.
Q. What if the check writer claims the check was
forged?
A. Take the check to your police department if the
check was written inside the city
limits. Otherwise, take it to the Sheriffs office.
Q. What if the check writer files for bankruptcy?
A. This prevents all collection efforts, but the check
writer can still be prosecuted.
Q. Can I send the check to the District Attorney's
Office if the check writer has
made a partial payment?
A. Yes. Bring in the standard documents plus the
payment records. Partial payment does not prevent our office from
filing a case and handling the matter for you.
Q. Can I post a list of hot-check writers?
A. Yes, but you may pay the consequences if you make a
mistake. Anyone who has the
money for a filing fee can file a lawsuit whether it
has merit or not. Making a list with
the title of "Hot Check Artist" may cause you a
problem. A better approach might be to make a list with a notation of
"Do not take checks written on the following account" or
"ineligible check writers". A better practice would be
to have the list viewable only by
you or your employees.
Q. If a check writer writes several checks, do I have
to fill out a separate arrest
warrant affidavit for every check?
A. No, if all the checks are written to the same
business during the same time period and
are returned by the bank for the same reason. On the
affidavit, write in the words "see
attached" in the blanks for the date of check, check
number, check amount and person accepting the check. Then fill in the
blanks on the supplement page (page 2). Sign page2
and attaché page 2 to the affidavit page.
Q. Do I have to come in person to the District
Attorney's office?
A. No. If you have access to a notary, you can have
anyone deliver the necessary items. If a notary is not available, you
will need to come in person to sign the affidavit.
FORMS
Click on the form name below, you can save it to your
computer as a word document for ease of editing.
Hot Check List
Tape this check list near the register
Sample of Demand Letter
Hot Check
Payment Plan (Contract)
Stop Payment
Complaint / Affidavit
If you need
information or have a hot check in the amount of $1,500.00 or more you
can call Investigator Monica Cervera at (830)741-6187 or email at
monica.cervera@38thda.org
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