Theft by Check / Hot Check

1. Finding out if you have hot checks
2. Explanation of the law
3. Punishment ranges
4. Previous convictions
5. Defenses
6. The law


1. Finding out if you have hot checks

If you think hot check charges might be pending against you or if you are unsure, you need to contact the County Attorney's Office Hot Check Division for your county. If your county attorney does not have a hot check division, try contacting either the County Attorney's Office or the Sheriff's Office.

In Travis County, call the Travis County Attorney's Office Hot Check Division at 512-854-9574 or perform a warrant search on the Travis County Website.

In Williamson County, call the Williamson County Attorney's Office Hot Check Division at 512-943-1138, visit the Williamson County Attorney's Hot Check Division Website for more information.

If you are a merchant who has received a hot check from an individual, please contact your County Attorney's Office Hot Check Division for further assistance.

2. Explanation of Hot Check Law

Theft by check cases arise out of two common scenarios. In the first scenario, checks are written on a closed account. In the second, checks are written on an account with insufficient funds. If you wrote a check on an account with insufficient funds the merchant and/or the bank is required to notify you in very specific ways. A lawyer can help you figure out if they correctly followed the law. The merchant and/or bank is not required to notify you if the check was written on a closed account.

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 affect 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 try and get your case dismissed or reduced 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 handle your original case, we can file an expunction to get all records of the theft expunged from your record. After the expunction, you can even lawfully deny that the arrest ever happened.

3. Punishment Ranges for Hot Checks

Value of the Check Charge Level Jail Time Fine
< $20 Class C Misdemeanor None Up to $500
< $20 with a previous theft conviction Class B Misdemeanor Up to 180 days Up to $2000
$20 to $499.99 Class B Misdemeanor Up to 180 days Up to $2000
$500 to $1499.99 Class A Misdemeanor Up to 1 year Up to $4000
< $1500 with 2+ previous theft convictions State Jail Felony 180 days to 2 years Up to $10,000
$1500 to $19,999.99 State Jail Felony 180 days to 2 years Up to $10,000
$20,000 to $99,999.99 3rd Degree Felony 2 to 10 years Up to $10,000
$100,000 to $199,999.99 2nd Degree Felony 2 to 20 years Up to $10,000
$200,000 or more 1st Degree Felony 5 to 99 years or Life Up to $10,000

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.

4. 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:

5. Defending Hot Check Charges

Often, hot check cases can get dismissed if you pay restitution and take a class. Restitution involves paying off the balance of the checks plus collection fees 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. Often the prosecutor also requires you to take a Hot Check Writing class. If you are in Travis County call TCCES at (512) 854-9540 or visit the TCCES Website for schedules and more information regarding these classes. If we are unable to arrange for your hot check case to be dismissed, we may be able to arrange to have the charge reduced to a Class C Misdemeanor Issuance of Bad Check (Texas Penal Code §32.41), which does not carry the stigma of a theft conviction.

Sometimes checks get stolen and the original owner ends up charged with a crime he/she did not commit. If this happened to you it is important to immediately report the lost or stolen checks to your bank and to the police. If forged checks are written on your account, a handwriting analysis and comparison is often needed to exonerate the original check owner. We can help arrange the handwriting analysis to be performed so that you can clear your name and get the charges against you dismissed.

6. 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.

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.

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.

We Can Help

At the Law Office of Justin Copeland, an Austin Criminal Defense Law Firm, 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 or the criminal charge against you. We recognize that every case is different, therefore our criminal defense lawyer 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 legal representation. At the Law Office of Justin Copeland we believe a client's defense is only as good as the relationship with his or her criminal defense attorney and this relationship is best developed through open and honest communication. We urge you to contact us today to setup a free initial consultation.

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In the News


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The University Star - June 12, 2008

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Travis County Office
502 W. 13th St.
Austin, TX 78701

Phone: 512.850.4529
Fax: 512.628.6010
Email: info@jcopelandlaw.com

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