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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16337
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi, I was arrested for theft probe 50$ to 500$, in texas,

Customer Question

Hi,

I was arrested for theft probe 50$ to 500$, in texas, and the case is dismissed two months back. and know i received an other mail from law office asking to pay 250$.

"This demand is made pursuant to Texas Civil Parctice and Remedies Code 134.005.This is not an attempt to collect a debt.

Please explain what is this?

Thank you
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 years ago.
Hi,

Here's the section of the Texas Civil Practice and Remedies Code you are talking about. The statute allows a civil theft victim to recover the value of the goods taken and damages.

With a theft charge, the complainant can come after a defendant both civilly and criminally. The criminal matter was dismissed. Now, however, it seems that the lawyer for the complainant wants the value of the stolen property back back and damages. If you don't pay it, he can sue you in civil court or in small claims court. Whether he will bother suing on a debt this small, however, is another matter.
Customer: replied 2 years ago.

first thing i did not bring any thing from the store.

and second question is if i pay that money will it be consider that I am accepting that I commited theft.

Expert:  Zoey_ JD replied 2 years ago.
Hi,

If you have read the statute, then you see that it allows the store to get reimbursed for a theft in the amount of the goods plus damages. The damages (anything over and above the price of the item(s) are to help pay for the store's security system, theft insurance and loss prevention department.

If you pay the money, you would be basically be admitting that you stole something. However, this is a civil statute and not a criminal statute, so it will not turn up on a background check and it won't give you a criminal record.

Once you pay this, could the state bring criminal charges against you again and use this against you? Maybe. If when they dismissed their case it was dismissed by the judge "without prejudice" that means the judge is granting them leave to refile if they want. If, on the other hand the judge dismissed it "with prejudice" then the state could not bring the case again.

If you don't pay, and the DA has leave to refile, they can still do that. If you don't pay, the plaintiff can bring you to civil court to try to get what the civil law entitles them to. Many people feel that with something this small you can just afford to ignore it because they will never really sue for $250. But if they want to they absolutely can.
Customer: replied 2 years ago.
what will be the safeway for me to solve this, do I need to hire an attorney, can anything be done like out of court settlement. Please advice me.
Expert:  Zoey_ JD replied 2 years ago.
Hello,

You don't need to hire an attorney though if you wanted to sit down and talk to one, you could get an inexpensive referral through the Texas Bar Association's Attorney Referral Service. The referral is around $50 but includes a free half hour's consultation with an active member of the state bar in good professional standing, whom you could go on to hire if you wished to.

Let me say it again. Your criminal case is over. It has been dismissed. THere is no case against. The store wants $250 in fines and penalties, which they are entitled to from you if you were shoplifting there. That is not criminal. It is civil, and it is a separate matter.

If you don't want to pay it, they can sue you in civil court or in small claims court. Will they? I could not possibly predict that, but they could. If you pay them or if you don't, will that give you a criminal record? No. It is not a criminal matter.

The out of court settlement is what they are offering you, and if that's what you want, pay the $250 and be done with it. IT WILL NOT GIVE YOU A CRIMINAL RECORD TO PAY THIS.
Customer: replied 2 years ago.
I just called to the law office, who sent me that notice. The reception says that they don't know about the case dismissal, and asked me to fax the evidence, once they received the evidence they will talk to there client and then they will decide to go further to proceed with this case or not. what is the probability of getting these type of cases solved, do you want me to include any cover letter to explain, how much i suffered last time for the criminal case, and how much i spent, and i faced lot of tension. Please advice me.
Thank you
Expert:  Zoey_ JD replied 2 years ago.
Hi.

I am sorry for the delay. I do not log in for Expert work until the afternoons.

There is a big difference in the burden of proof between a criminal and a civil case. In civil law it would just have to be more likely true than not that you took the property. But in Criminal law, a DA would have to show that you stole from the store beyond a reasonable doubt in order to get a conviction.

Because of that difference in the burden of proof, if the DA dismissed this case outright (if you didn't get your dismissal as part of a diversion agreement after you completed sentence requirements), that doesn't mean that the civil lawyer for the store will drop this issue. But they might.

I had not realized until you hinted at it in your last post that you were giving thought to retaining a lawyer to sue for malicious prosecution/false arrest. If that's so you, will want to consult with a plaintiff's personal injury litigator (trial lawyer) to see how viable your claim is and it would not be a great idea for you to discuss the matter with the store's lawyers, if you are going to turn around and try to sue them and the police. I am linking you to the Texas Bar Association's Lawyer Referral Service. if you don't have a lawyer or know of one in this area, it's a good place to start so that you're not flying blind.

Basically, though, you should know that this type of a suit is very difficult to win because the police are iimmune from prosecution while acting in the regular course of their duty unless you could show negligence or misconduct. To win on a claim of malicious prosecution, you would have to prove all of the following:

a) a prosecution caused or continued by one person against another
b) termination of the proceeding in favor of the person who was prosecuted
c) absence of probable cause for initiating or continuing the proceeding
d) initiating or continuing the proceeding with malice or a primary purpose other than that of bringing the offender to justice

A and b are easy to prove. c and d is what can be difficult. So go over all of the details with a lawyer and don't try to negotiate your own settlement with the store until you have either decided not to sue or you've conferred with the lawyer you plan on retaining for the suit.

Good luck!

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