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When is a “Hot Check” not a “Hot Check”

by Jerry W. Tidwell Jr. on July 26, 2011 in News

The other day I was in court and ran into an acquaintance. This individual is not a lawyer and certainly would not be the type of person I would expect in a criminal court. After the usual “hellos” I asked why they were there. And here begins the point of this post.

“Oh, my daughter has a hot check issue. It is no big deal. We paid restitution; now we are just waiting to talk to the Judge.”

From here I switched from casual talker to criminal defense lawyer – I asked if they had a lawyer, what was the terms of them paying restitution, why they were waiting to see the Judge, whether they had an agreement with the prosecutor for resolving the matter. And the biggest one of all: Why don’t you think this is a big deal?

“Oh, it is just a hot check, you know an accounting mix up .. no big deal.”

Not trying to alarm them, but definitely trying to make a point — it is a big deal … it is not a “hot check” it is THEFT.

Texas Penal Code addresses “hot checks” in two different parts. And depending on the part the prosecutor files it under determines its seriousness.

Penal Code 32.41 addresses the common perception of “hot check” cases in a section titled “Issuance of a Bad Check” (or IBC for short). Generally, this section defines IBC as issuing or passing a check for the payment of money knowing there is insufficient funds for payment in full (paraphrased). If filed under this section, an IBC is a Class C misdemeanor, punishable by a fine only (an exception being for paying for child support under IBC is a Class B misdemeanor, which could be punished by fine and/or confinement).

This I think most individuals think of as a “hot check” case, and generally there exists a perception that if the person pays the restitution and a nominal fine then the case “goes away.” Typically, these cases will be filed in municipal or justice of the peace courts, and with some exceptions depending on specific facts, this is probably a safe assumption.

In this particular instance though, my acquaintance and her daughter were not in a municipal or justice court, but instead were in the County Courts. This signaled to me it was a far more serious matter. Texas Penal Code chapter 31 addresses Theft offenses. Specifically, Penal Code 31.02 consolidated all “theft” type offenses into one general Theft criminal offense, including obtaining property by issuing or passing a check when there were insufficient funds for payment in full of the check or when a bank account was closed. Under this type of offense it is a Class C misdemeanor if the check was less than $20 (again punishable by a fine only). However, if the check is greater than $20, then the punishment can range from Class B misdemeanor up to a first degree felony, depending on value of the check and/or the type of property and/or other special circumstances.

In this particular instance, the check in question was for between $20 and $500 making it a Class B misdemeanor punishable by a fine not to exceed $2,000 and/or confinement in the county jail not to exceed 180 days. Also, and I think over the long term more significant, the individual was at risk of being convicted of Theft a crime of moral turpitude that could follow that individual for the rest of their life. There are some criminal convictions and even criminal accusations that individuals can overcome in their job search. However, I am not aware of too many employers that willingly or enthusiastically offer jobs to convicted thieves. Which is another problem with this allegation, this person would have been convicted of Theft and grouped in with all other types of theft — the criminal history does not include the facts or distinguish between subtle differences in criminal offenses.

On behalf of my acquaintance, I approached the prosecutor and discussed the matter. The prosecutor agreed to a $50 fine, deferred adjudication for 30 days, and reduced the offense to the Class C IBC. This individual was not only not convicted of theft, and also is never at risk of the Class B conviction in this particular instance, and most importantly is eligible to petition to have all documents related to this allegation expunged in the future (assuming continued eligibility).

I now come to the final point — this person might have been able to accomplish all of this on their own, had they known the law, the existence of these provisions, and the procedure for accomplishing all of this. But realistically, they would not have accomplished this outcome, as they failed to appreciate the seriousness of the allegation and obviously did not know the law. It took me all of 20 minutes to protect this individuals future, I hesitate to wonder how much damage they would have done on their own. I asked why they did not get a lawyer or at least consult with one. She again stated “I thought it was no big deal.” I asked whether the daughter got arrested, and she did.

My final two points for deciding whether you ever need a lawyer: first, if you ever think you might need a lawyer, you probably do (we are kind of like doctors, dentists, or barbers in that way); and second, if you get arrested, it was enough of a big deal to the police, it should be an equally big deal to you — and you should consider retaining a lawyer.

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me at jwtidelljr@tidwell-law.net to set up an appointment and discuss your case.

Disclaimer The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.  I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.