Our office does NOT PROVIDE collection services for hot checks, HOWEVER, the CDA's Office WILL PROSECUTE and seek restitution for offenses related to passing a bad check. 

Theft by Check is a Crime

There are three offenses in the Texas Penal Code which can be used in dealing with hot checks: Issuance of Bad Check (Tex. Penal Code 32.41), Theft (Tex. Penal Code) 31.03 and Theft of Service (Tex. Penal Code 31.04). These offenses range from Class C Misdemeanor to Felony of the first degree, depending on the amount of the check and the elements that the State can prove beyond a reasonable doubt.

1. Class C Misdemeanor: if the value of the check is less than $100.00; punishable by a fine not to exceed $500.00. (Any amount under Tex. Penal Code 32.41)
2. Class B Misdemeanor: if the value of the check is $100.00 or more but less than $750.00; punishable by a fine not to exceed $2,000.00 or 180 days in jail or both. (Under 31.04 only if it was passed for child support)
3. Class A Misdemeanor: if the value of the check is $750.00 or more but less than $2,500.00; punishable by a fine not to exceed $4,000.00 or 1 yr. in jail or both.
4. A Felony Offense if the value exceeds $2,500.00 are Felonies

These offenses should be reported to the appropriate law enforcement agency where the offense occurred for investigation and subsequent submission to our office. 

Procedures for making a criminal complaint 

1. Timeliness

The check must be presented to the bank within 30 days of the date of issuance even if it is known that the check will be not honored.

2. Mail a Demand Letter

The law requires proof that the person intended to deprive you of your property or avoid payment for your services. Penal Code Section 31.06 (Presumption for Theft by Check) requires that you give written notice to a person who has given you a worthless check. This notice must be sent to the person by certified or registered mail with return receipt requested. The notice must contain 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."

The law also states that you must allow the person 10 days, from the date of receipt of the notice, to pay you in full. If the person fails to pay you in full after the 10 days, you may file a criminal complaint with law enforcement.  It is not a defense to prosecution that the check writer did not receive the notice. The law only requires you to send the notice. If the Postal Service is unable to deliver the notice or the check writer refuses to accept the notice, you may still file a criminal complaint with law enforcement.

3.Contact Law Enforcement to make a criminal complaint and provide:

1. The original check sent by the bank to you that had insufficient funds or closed account
2. A copy of the written demand letter that was sent to the issuer along with either:
   • the unopened certified letter returned back to you as either "unclaimed," moved left no address," etc. or
   • the signed green card and the proof of mailing receipt
3. A completed, signed and sworn Complaint and Affidavit Form
4. Contact law enforcement in the jurisdiction where the check was passed or where you live. 
   City of Boerne
   Contact:      Boerne Police Department
                      124 Old San Antonio Road
                      Boerne, Texas 78006
                      830-249-8645
   
   City of Fair Oaks Ranch located within Kendall County
   Contact:      Fair Oaks Ranch Police Department
                      7286 Dietz Elkhorn Road
                      Fair Oaks Ranch, Texas 78015
                      210-698-0990
   
   Kendall County, outside of a municipality
   Contact:      Kendall County Sheriff’s Office
                      6 Staudt Street
                      Boerne, Texas 78006
                      830-249-9721

Below you will find a list of the kind of checks that, as a general rule, cannot be accepted by the Kendall County Criminal District Attorney’s Office for prosecution:

1. Post Dated or “Stop Payment” checks
2. Old Checks upon which the statute of limitations has run (Normally two years)
3. Checks where partial payment has been accepted
4. Two party checks
5. Checks presented outside of Kendall County or for services performed outside of Kendall County
6. Checks presented in payment of debts, loans, charge accounts, or for property rent.
7. Checks where no property or services were given in immediate exchange
8. Forged or altered checks. These are forgery cases that will be investigated by law enforcement.
9. Checks received through the mail
10. Checks not presented to the bank within 30 days from the date written
11. Checks given in furtherance of any illegal activity.

If you accept one of the types of checks listed above, you may still have certain remedies available to you under the Civil Laws of this State, but not under the criminal laws. You may want to consult with an attorney.