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What does non simultaneous exchange in legal terms. Texas.

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What does non simultaneous exchange in legal terms

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An individual wrote me (two) checks that were insufficient funds from his bank totaling $9,954.00 and did not make good of the checks .What considered a hot check or a felony for knowingly writing a check and not having the funds to cover the checks

Submitted: 2 months ago.Category: Legal
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12/11/2017
Lawyer: legalgems, Lawyer replied 2 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 11,877
Experience: Just Answer consultant at Self employed
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Lawyer: legalgems, Lawyer replied 2 months ago

I am sorry to hear this;

in TX it is a misdemeanor, not a felony; here is the relevant statute:

UBCHAPTER D. OTHER DECEPTIVE PRACTICES

Sec. 32.41. ISSUANCE OF BAD CHECK OR SIMILAR SIGHT ORDER. (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 or sight orders. 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

The person can also be sued in civil court for recovery of the damages.

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Lawyer: legalgems, Lawyer replied 2 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

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