83R10753 JRR-F
	By: Pitts	H.B. No. 3365

	A BILL TO BE ENTITLED
	AN ACT
	relating to the prosecution of certain criminal offenses involving
	theft or fraud by payment device; providing penalties; imposing
	fees.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Section 31.03, Penal Code, is amended by
	amending Subsection (e) and adding Subsection (e-1) to read as
	follows:
	(e)  Except as provided by Subsection (f), an offense under
	this section is:
	(1)  a Class C misdemeanor if the value of the property
	stolen is less than:
	(A)  $50; or
	(B)  $20 and the defendant obtained the property
	by issuing or passing a payment device [check or similar sight
	order] in a manner described by Section 31.06;
	(2)  a Class B misdemeanor if:
	(A)  the value of the property stolen is:
	(i)  $50 or more but less than $500; or
	(ii)  $20 or more but less than $500 and the
	defendant obtained the property by issuing or passing a payment
	device [check or similar sight order] in a manner described by
	Section 31.06;
	(B)  the value of the property stolen is less
	than:
	(i)  $50 and the defendant has previously
	been convicted of any grade of theft; or
	(ii)  $20, the defendant has previously been
	convicted of any grade of theft, and the defendant obtained the
	property by issuing or passing a payment device [check or similar
	sight order] in a manner described by Section 31.06; or
	(C)  the property stolen is a driver's license,
	commercial driver's license, or personal identification
	certificate issued by this state or another state;
	(3)  a Class A misdemeanor if the value of the property
	stolen is $500 or more but less than $1,500;
	(4)  a state jail felony if:
	(A)  the value of the property stolen is $1,500 or
	more but less than $20,000, or the property is less than 10 head of
	sheep, swine, or goats or any part thereof under the value of
	$20,000;
	(B)  regardless of value, the property is stolen
	from the person of another or from a human corpse or grave,
	including property that is a military grave marker;
	(C)  the property stolen is a firearm, as defined
	by Section 46.01;
	(D)  the value of the property stolen is less than
	$1,500 and the defendant has been previously convicted two or more
	times of any grade of theft;
	(E)  the property stolen is an official ballot or
	official carrier envelope for an election; or
	(F)  the value of the property stolen is less than
	$20,000 and the property stolen is:
	(i)  aluminum;
	(ii)  bronze;
	(iii)  copper; or
	(iv)  brass;
	(5)  a felony of the third degree if the value of the
	property stolen is $20,000 or more but less than $100,000, or the
	property is:
	(A)  cattle, horses, or exotic livestock or exotic
	fowl as defined by Section 142.001, Agriculture Code, stolen during
	a single transaction and having an aggregate value of less than
	$100,000; or
	(B)  10 or more head of sheep, swine, or goats
	stolen during a single transaction and having an aggregate value of
	less than $100,000;
	(6)  a felony of the second degree if:
	(A)  the value of the property stolen is $100,000
	or more but less than $200,000; or
	(B)  the value of the property stolen is less than
	$200,000 and the property stolen is an automated teller machine or
	the contents or components of an automated teller machine; or
	(7)  a felony of the first degree if the value of the
	property stolen is $200,000 or more.
	(e-1)  In this section, "payment device" has the meaning
	assigned by Section 3.506, Business & Commerce Code.
	SECTION 2.  Section 31.04(g), Penal Code, is amended to read
	as follows:
	(g)  It is a defense to prosecution under this section that:
	(1)  the defendant secured the performance of the
	service by giving a postdated payment device, as defined by Section
	3.506, Business & Commerce Code, [post-dated check or similar sight
	order] to the person performing the service; and
	(2)  the person performing the service or any other
	person presented the payment device [check or sight order] for
	payment before the date on the payment device [check or sight
	order].
	SECTION 3.  The heading to Section 31.06, Penal Code, is
	amended to read as follows:
	Sec. 31.06.  PRESUMPTION FOR THEFT BY PAYMENT DEVICE
	[CHECK].
	SECTION 4.  Sections 31.06(a), (b), and (f), Penal Code, are
	amended to read as follows:
	(a)  If the actor obtained property or secured performance of
	service by issuing or passing a payment device, as defined by
	Section 3.506, Business & Commerce Code, [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 payment device [check or order] as well
	as all other payment devices [checks or orders] then outstanding,
	it is prima facie evidence of the issuer's [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
	payment device [check] or to avoid payment for service under
	Section 31.04 (Theft of Service) (except in the case of a postdated
	payment device [check or order]) if:
	(1)  the issuer  [he] had no account with the bank or
	other drawee at the time the issuer [he] issued the payment device
	[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 payment device [check or order];
	(B)  the records of the bank or other drawee; or
	(C)  the records of the person to whom the payment
	device [check or order] has been issued or passed; and
	(3)  contains the following statement:
	"This is a demand for payment in full for a payment device
	[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."
	(f)  If the actor obtained property by issuing or passing a
	payment device [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
	payment device [check or order], if:
	(1)  the actor ordered the bank or other drawee to stop
	payment on the payment device [check or order];
	(2)  the bank or drawee refused payment to the holder on
	presentation of the payment device [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.
	SECTION 5.  The heading to Section 32.41, Penal Code, is
	amended to read as follows:
	Sec. 32.41.  ISSUANCE OF BAD PAYMENT DEVICE [CHECK].
	SECTION 6.  Sections 32.41(a), (b), (c), (e), and (f), Penal
	Code, are amended to read as follows:
	(a)  A person commits an offense if the person [he] issues or
	passes a payment device, as defined by Section 3.506, Business &
	Commerce Code, [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 payment device [check or order] as well as all other payment
	devices [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
	payment device [check or order]) if:
	(1)  the issuer [he] had no account with the bank or
	other drawee at the time the issuer [he] issued the payment device
	[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 payment device [check or order];
	(B)  the records of the bank or other drawee; or
	(C)  the records of the person to whom the payment
	device [check or order] has been issued or passed; and
	(3)  contains the following statement:
	"This is a demand for payment in full for a payment device
	[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."
	(e)  A person charged with an offense under this section may
	make restitution for the bad payment devices
	[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 payment
	device [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.
	SECTION 7.  The heading to Section 3.507, Business &
	Commerce Code, is amended to read as follows:
	Sec. 3.507.  DELIVERY NOTIFICATION FEE BY HOLDER OF PAYMENT
	DEVICE [CHECK OR SIMILAR SIGHT ORDER].
	SECTION 8.  Sections 3.507(a) and (c), Business & Commerce
	Code, are amended to read as follows:
	(a)  On return of a payment device, as defined by Section
	3.506, [check or similar sight order] to the holder following
	dishonor of the payment device [check or sight order] by a payor and
	prior to the payment device [check or sight order] being referred
	for prosecution, the holder, the holder's assignee, agent, or
	representative, or any other person retained by the holder to seek
	collection of the dishonored payment device [check or sight order]
	may charge the drawer or indorser of the payment device [check or
	sight order] the cost of delivery notification by registered or
	certified mail with return receipt requested under Section 31.06 or
	Section 32.41, Penal Code, as applicable.
	(c)  This section does not affect any right or remedy to
	which the holder of a payment device [check or similar sight order]
	may be entitled under any rule, written contract, judicial
	decision, or other statute, including Section 3.506.
	SECTION 9.  The heading to Article 102.007, Code of Criminal
	Procedure, is amended to read as follows:
	Art. 102.007.  FEE FOR COLLECTING AND PROCESSING PAYMENT
	DEVICE [SIGHT ORDER].
	SECTION 10.  Articles 102.007(a), (c), (d), (e), and (g),
	Code of Criminal Procedure, are amended to read as follows:
	(a)  A county attorney, district attorney, or criminal
	district attorney may collect a fee if the attorney's [his] office
	collects and processes a payment device, as defined by Section
	3.506, Business & Commerce Code, [check or similar sight order] if
	the payment device [check or similar sight order]:
	(1)  has been issued or passed in a manner that makes
	the issuance or passing an offense under:
	(A)  Section 31.03, Penal Code;
	(B)  Section 31.04, Penal Code; or
	(C)  Section 32.41, Penal Code; or
	(2)  is a check or similar sight order that has been
	forged, as defined by Section 32.21, Penal Code.
	(c)  The amount of the fee may not exceed:
	(1)  $10 if the face amount of the payment device [check
	or sight order] does not exceed $10;
	(2)  $15 if the face amount of the payment device [check
	or sight order] is greater than $10 but does not exceed $100;
	(3)  $30 if the face amount of the payment device [check
	or sight order] is greater than $100 but does not exceed $300;
	(4)  $50 if the face amount of the payment device [check
	or sight order] is greater than $300 but does not exceed $500; and
	(5)  $75 if the face amount of the payment device [check
	or sight order] is greater than $500.
	(d)  If the person from whom the fee is collected was a party
	to the offense of forgery, as defined by Section 32.21, Penal Code,
	committed by altering the face amount of the payment device [check
	or sight order], the face amount as altered governs for the purposes
	of determining the amount of the fee.
	(e)  In addition to the collection fee specified in
	Subsection (c) of this article, the county attorney, district
	attorney, or criminal district attorney may collect the fee
	authorized by Section 3.506, Business & Commerce Code, for the
	benefit of the holder of a payment device [check] or the holder's
	[its] assignee, agent, representative, or any other person retained
	by the holder to seek collection of the payment device [check].
	(g)  In addition to the collection fee specified in
	Subsections (b) and (c), the issuer of a payment device [check or
	similar sight order] that has been issued or passed as described by
	Subsection (a)(1) is liable for a fee in an amount equal to the
	costs of delivering notification by registered or certified mail
	with return receipt requested.  The fee under this subsection must
	be collected in all cases described by Subsection (a)(1), and on
	receipt of proof of the actual costs expended, the fee shall be
	remitted to the holder of the payment device [check or similar sight
	order].
	SECTION 11.  Article 102.0071, Code of Criminal Procedure,
	is amended to read as follows:
	Art. 102.0071.  JUSTICE COURT DISHONORED PAYMENT DEVICE
	[CHECK]. On conviction in justice court of an offense under Section
	32.41, Penal Code, or an offense under Section 31.03 or 31.04, Penal
	Code, in which it is shown that the defendant committed the offense
	by issuing or passing a payment device, as defined by Section 3.506,
	Business & Commerce Code, [check] that was subsequently dishonored,
	the court may collect from the defendant and pay to the holder of
	the payment device [check] the fee permitted by Section 3.506,
	Business & Commerce Code.
	SECTION 12.  Sections 102.101 and 102.102, Government Code,
	are amended to read as follows:
	Sec. 102.101.  ADDITIONAL COURT COSTS ON CONVICTION IN
	JUSTICE COURT:  CODE OF CRIMINAL PROCEDURE.  A clerk of a justice
	court shall collect fees and costs under the Code of Criminal
	Procedure on conviction of a defendant as follows:
	(1)  a jury fee (Art. 102.004, Code of Criminal
	Procedure) . . . $3;
	(2)  a fee for withdrawing request for jury less than 24
	hours before time of trial (Art. 102.004, Code of Criminal
	Procedure) . . . $3;
	(3)  a jury fee for two or more defendants tried jointly
	(Art. 102.004, Code of Criminal Procedure) . . . one jury fee of $3;
	(4)  a security fee on a misdemeanor offense (Art.
	102.017, Code of Criminal Procedure) . . . $4;
	(5)  a fee for technology fund on a misdemeanor offense
	(Art. 102.0173, Code of Criminal Procedure) . . . $4;
	(6)  a juvenile case manager fee (Art. 102.0174, Code
	of Criminal Procedure) . . . not to exceed $5 if the court employs a
	juvenile case manager;
	(7)  a fee on conviction of certain offenses involving
	issuing or passing a subsequently dishonored payment device [check]
	(Art. 102.0071, Code of Criminal Procedure) . . . not to exceed
	$30;
	(8)  a court cost on conviction of a Class C misdemeanor
	in a county with a population of 3.3 million or more, if authorized
	by the county commissioners court (Art. 102.009, Code of Criminal
	Procedure) . . . not to exceed $7; and
	(9)  a civil justice fee (Art. 102.022, Code of
	Criminal Procedure) . . . $0.10.
	Sec. 102.102.  ADDITIONAL COURT COSTS ON CONVICTION IN
	JUSTICE COURT:  BUSINESS & COMMERCE CODE. The clerk of a justice
	court shall collect from a defendant a court cost not to exceed $30
	under Section 3.506, Business & Commerce Code, on conviction of
	certain offenses involving issuing or passing a subsequently
	dishonored payment device [check].
	SECTION 13.  The heading to Section 162.409, Tax Code, is
	amended to read as follows:
	Sec. 162.409.  ISSUANCE OF BAD PAYMENT DEVICE [CHECK] TO
	LICENSED DISTRIBUTOR, LICENSED SUPPLIER, OR PERMISSIVE SUPPLIER.
	SECTION 14.  Sections 162.409(a) and (d), Tax Code, are
	amended to read as follows:
	(a)  A person commits an offense if:
	(1)  the person issues or passes a payment device, as
	that term is defined by Section 3.506, Business & Commerce Code,
	[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 payment device
	[check or order] as well as all other payment devices [checks or
	orders] outstanding at the time of issuance;
	(2)  the payee on the payment device [check or order] is
	a licensed distributor, licensed supplier, or permissive supplier;
	and
	(3)  the payment is for an obligation or debt that
	includes a tax under this chapter to be collected by the licensed
	distributor, licensed supplier, or permissive supplier.
	(d)  A person who makes payment on an obligation or debt that
	includes a tax under this chapter and pays with an insufficient
	funds payment device [check] issued to a licensed distributor,
	licensed supplier, or permissive supplier may be held liable for a
	penalty equal to the total amount of tax not paid to the licensed
	distributor, licensed supplier, or permissive supplier.
	SECTION 15.  The change in law made by this Act applies only
	to an offense committed on or after the effective date of this Act.
	An offense committed before the effective date of this Act is
	governed by the law in effect on the date the offense was committed,
	and the former law is continued in effect for that purpose. For
	purposes of this section, an offense was committed before the
	effective date of this Act if any element of the offense occurred
	before that date.
	SECTION 16.  This Act takes effect September 1, 2013.