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CrimDefense
CrimDefense, CriminalDefenseAtty
Category: Criminal Law
Satisfied Customers: 15797
Experience:  7+ years defending Misdemeanor and Felony cases.
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can someone help me with a theft by check charge, the check

Customer Question

can someone help me with a theft by check charge, the check was writen by a worker of ours and we thought we had them all picked up, but i got arrested in Galveston on Sunday, (4/28/13) we placed a bond and now i want to get this taken care of without havingto go through court.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  CrimDefense replied 1 year ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good afternoon. The site does not allow us to represent you, if that is what you mean when you asked for help above. I can however answer any questions which you may have about the process and what can and can not be done. Let me know if you would like to proceed. If so, how is it that you got arrested for something which a worker of yours did? What did you have to do with this and them?
Customer: replied 1 year ago.

the check was writen in 2003, i cant find any of my original paperwork. now i'm trying to clear it upand no one wants to listen.

Expert:  CrimDefense replied 1 year ago.
Thank you for the additional information. If you were arrested, charged and posted a bond, the charges have already been filed and you will need to appear in court, until the matter is resolved. If you are able to, you would want to retain private counsel to represent you. If not, then you would need to ask to be appointed the public defender. If you did nothing wrong and there is no evidence to support the charge, your attorney needs to speak with the prosecutor about a resolution to the case. They are going to want to make a demand for discovery and the State would be required to turn over all the evidence which they have and will be used against you, at trial. I have also provided you below, the code under which you likely have been charged. You should review it and make sure notice was sent to you, which is a condition precedent for the charge and presumption. If there was an issue with the check, you should have been given a chance to correct it and tender the full amount. Moreover, any records to support your position should be gathered, to who was the cause of this and if you need to, will have to testify if this was a result of the actions of your employee. That information may need to be disclosed and your attorney may need to try and find this person and turn his information over to the police.

§ 31.06. PRESUMPTION FOR 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 registered or certified mail with
return receipt requested or by telegram with report of delivery
requested;
(2) is addressed to the issuer at his 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.

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