Hot Check & Theft by Check

Theft by check cases are most commonly associated with either checks that are written on a closed account or checks written when there was insufficient funds. The crime is that an individual passes or writes a check in which they know they do not have sufficient funds to cover the expense. Knowledge of the funds in your account is presumed when certain requirements are met.

The punishment level and offense level depend on the amount of the hot check. Theft by check offenses can range anywhere from a Class C misdemeanor to a 1st Degree Felony.

A theft by check carries with it many consequences, from jail time, to fines, to criminal record that carries consequences that can affect your rights as a citizen such as serving on jury panel. Theft crimes are considered crimes of moral turpitude and can affect your ability to obtain a job. Perhaps you wrote a check by accident thinking you had funds, or perhaps your checkbook got stolen and you ended up being charged due to forged checks. In either circumstance, you would want to make sure you hire an attorney to properly defend your case.

If you believe you may have a warrant for a theft by check case in Travis County, you may call the Travis County Attorney's Office Hot Check Division at 512-415-7648 or perform a warrant search on the Travis County Website https://public.co.travis.tx.us/wow/default.aspx.

As always, the applicable Texas law concerning this offense is below.

TEXAS PENAL CODE - 32.41. Issuance of Bad Check

(a) A person commits an offense if he issues or passes a check or
similar sight order 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.

(b) This section does not prevent the prosecution from establishing
the required knowledge by direct evidence; however, for purposes of
this section, the issuer's knowledge of insufficient funds is presumed
(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.

(c) Notice for purposes of Subsection (b)(2) 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."

(d) If notice is given in accordance with Subsection (c), it is presumed
that the notice was received no later than five days after it was sent.

(e) A person charged with an offense under this section may make
restitution for the bad checks. 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.

(f) Except as otherwise provided by this subsection, an offense under
this section is a Class C misdemeanor. If the check or similar sight order
that was issued or passed was for a child support payment the obligation
for which is established under a court order, the offense is a
Class B misdemeanor.

(g) An offense under this section is not a lesser included offense
of an offense under Section 31.03 or 31.04.

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.