(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 the issuer's 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 order 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) the issuer had no account with the bank or other drawee at the time the issuer issued the check or sight 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 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.
Cite this article: FindLaw.com - Texas Penal Code - PENAL § 31.06. Presumption for Theft by Check or Similar Sight Order - last updated April 14, 2021 | https://codes.findlaw.com/tx/penal-code/penal-sect-31-06.html
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