Case Information
*1 The Attorney General of Texas April 9, 1986 JIM ilATTOX
Attorney Qeneral Rowreblo George Pierce opinloo No. m-472
~~9nwCo~Sulldl~ cheirmen Ai&. TX. 78711. 2545 Urban Affeirs Comlttee RO: Effect of failure to pay 512l4752501 Texas House of Rep~rrrsentstives a processing fee authorized by Telex 9101074.1557 P. 0. Box 2910 article 9022, V.T.C.S., for T.l.coplsr 5121*7M255 Awtin, Taxes dishonored checks 78’169 714 JaCkMn. Suile 700 Dear Rapresentativs Pierce: OallaI. TX. 75202-4509 214i?426ou
You esk sevccol questions relating to a processing fee by the
holder of s dishmored check. Article ,9022. V.T.C.S., which is a 4524 AIbwt4 Av*., SUN4 150 civil stetute enactad by the legisleturc in 1983, provides that El Paso, TX. 799052792 QlW3454 (e) The holder of s check or its assignee, representative. or w person
sgmt . other retained by the holder to seek collection of the cr-rexu. suite 700 I ~ton. l7.. 77002-3111 face vs!.ue of the dishonored check on return of 7xX2235559 check. to the holder following its dishonor by the drawer or endorser a
a peyor m.sy chsrge ressona~le processing fee, which shall not exceed 905 Broadway, Suite 312 $15. Lubaock lx. 79401-3479 595n47.5225
(b) Nothing herein shell be constmed as affecting, sny right or remedy to which the holder 4309 N. Tenth. Suite 8 l check mey be entitled under any rule, YcAllm. TX. 7S501.1955 regulst~.cm. written contract, judicial decision, 512s524547
or other statute. 200 MaIn Plaza. Suite 400 You ask whether a persoo would be innocent of e theft by check Ssn Antonlo. TX. 752952797 cherge if the person offered holder of a dishonored check a cash 512l225-4191 payment in the amount the check but refused to pay the processing fee authorized b:r erticle 9022. An offer to pay the amount of a An Eqwl Opportunllyl dishonored check does not necessarily preclude e conviction of theft Attlmutive Action Employer or of Issuance of a bed check under the Penal Code. See Penal Code
131.03 (theft); jI31.04 (theft of service); 132.41 (is~nce of bad check. which mey be e lesser offenee of theft). Peilure to pay the amnunt of the ckeck may give rice to the vldentlary presumptions establiehed by Thea Penal Code. It is our opinion. however, that refusal to pay a processing fee is not en element of offenses of theft or lssusncc of s bad check and neither does such refusal trigger the evidentiary presumptions.
p. 2158
Bonoreble George Pierco - l’ego 2 .(JX-472)
The proceasing foe authorized by article 9022 is e civil natter between the iaauer end the holder of l dishonored check. Article 9022 was nected to reaolve uncllrteinty a to the velidlty of feee iopoaed for proceaeing dishonored checke, which were conridered pert of l contract between the issuer end the holder. See Bill Anelyaie to S.B. lo. 921, prepered for the lgouro Cowittu ~Buainere end Cowerce.
filed in Bill File to H.B. No. 921, Legirletive Reference Library. We fee becones pert of the mount do not bolievr that such 41 procosaing the check. Hence, we ctmlcludc thet failure to pey a proceesing fee authorized by erticle 9022 is not the feilure to pey the holder within 10 deya receipt of nol:!lce thet is requkod for the vldentiery prealmptiona established bg section 31.06(e) and aectlon 32.41(b) of the Penal Cod..
Receipt of property endi proof of its velue sre necessary elements In the offense of theft wder articles 31.03 and 31.04 of the Penal Code but ere not required for proof of the offense of issuance of e bed check under section 32,4,1 of the Penal Code. Section 31.b6 of the Penel Code, entitled “Preaualptlon for Theft by Check,” does not create epeciflc offen:le, end person la not prosecuted for theft e seperate, by check under section 31.136. When the defendant obtaine property by issuing e check without sufficient funds, section 31.06 provides en evidentiery presumption of intent to deprive the ovner of property which is ancillary to the (;amerel theft atetutea. See Christiansen 0. State, 575 S.U.2d 42, 45 (l:aa. Criol. App. 1979); Suzie v. State, 631 s.u.ld 569, 571 (Tax. App, - El Psso 1982. no writ). Section 31.06 provides that if e person abteins property or services by issuing or passing e check when issuer did not heve sufficient funds in the benk for payment in full ot the check, the person’s intent to deprive the owner ,of property under section 31.03 or to ovoid payment for remices under section 31.04, lo presumed if
(1) he bed no eccount with the benk or other drawee et time he issued the check or order; or
(2) psyuent wea refused by the bsnk or other drewee for leek of funds or insufficient funds, on prea.entstion wit!rln 30 daye efter issue, end the issuer failed tcl pey the holder in full within 10 daye efter rt~:eivtng notice of that refusal. (E&eels edded) a_
A similar evidentiery presumption knovledge insufficient funde ia provided by eectiun 32.41 of Penel Code for the offense ieauing or peasing e bad of Under section 32.41, e peraon check. commits en offenee if he issues or passes e for the payment of money knowing thet the issuer does not heve sufficient funds on *3 Ronoreble George Pierce - Pepa 3 (Jn-472)
dapoelt with benk for thr psyment in full of the check. Subaec.
(a). Subrection (b) states t:het
Thie section does wt prevent the proeecutlon fr om l atebllahi.ng the required knowledge by direct evidence; however, for purposes of thie l ection, th e issuer’s kuowladge of Insufficient fundo is preeueed (except Lmt the case e poet&ted check or order) if:
(1) he had no eccount with bsnk or other drawee st the time he issued the or order; or
(2) psyment wss refused by the benk or other drswee for lsck of funds or insufficient funds on preseutstion within 30 days after issue and the issuer feiled to pay holder in full within-10 deya efter receiving notice of that refusal, (Emphssia added).
’ Presentment, dishonor, notice, and subsequent failure to pay are necessery to support both those presumptions. See Sulecie v. It is our opinion that z evldentlery
e, 631 S.W.Zd et 572. presumptions of an saencia:l lemant of the offenses of theft snd issuance of a bsd check epply where the Issuer fsila to pay the holder the full smount the check efter dishonor end notice end that refuael to psy e processing fee does not sffect those presumptions.
It should be noted, however, that regardless of the existence of such presumptions, the prosecution may establish the elements of the offense by direct evidence.
In addition to the avldentfary praaumption of the Issuer’s knowledge of Insufficient funda, section 32.41 of the Pens1 Code, es -ded by Sixty-eighth Legislature, espreaaly euthoriaes the restitution of bsd check thst is issued or passed by person who knows thet sufficient funds era not on deposit. Subsection (8) states that
[e] person cbargad sn offense under this tith section mey make restitution for the bsd checke. Restitution shall be made through the prosecutor’e office if eollect:ton and processing were initiated In other ceeea reetitution through thet off fee.
may, with the approve1 the court in which the offenee is filed ,, be mede through the court, by certified checks, cashiers checks. or money order only, psysble to t’he person that received the bsd checks.
Bowreble George Pierce - Pege 4 (JU-472)
For certeln purpoees, reetitution conetitutee tbet whtch io or&red by the court. See C,ode Crir. Proc. l rt. 42.03, SS(b)(4) (work releese programs); l rt.J.12, 18(c) (probetion revoution); l rt.
42.12, 115(g)(l) (conditiotm parole). The provisions of aubeection (e) neith er define nor l pmify the effect of “restitution.’ One of fundamtal rules of l tatutory construction la rule thet worda in comon use, when contained in a etstute, will be read eccordlng to their neturel, ordinaq, and populer meaning, unless l contrery intention is cleerly sppermt from the context. See Wetlonel Life Co.
v. Ste all, 169 S.W.?d 155, 157 (Tu. 1942); Attzey Genersl Opinion &962). A dicttmery my be consulted to eacertsin the meaning of e word. See Board of Insurance Cowaaisaioners v. Duncan, App. - Amarillo 1943, writ 174 S.W.Zd 326, 328 T&-Civ. ref'd); Attorney General Opinion I:-,1277 (1978). Bleck'a Law Dictionary 1180 (5th l d. 1979) defines "restitution" as the set of making good or Since section giving equivalent for any loss. dsmage, or injury. in full of the chsck" but.
32.41(e) does not provide for “payment Instead, provides for "re~ltitutlon," we believe that the legialgture Intended to give the isauar the opportunity to reimburse the holder for both the mount l dishonored check snd snp processing fee to which the holder is entitbkd.
Weither restitution nor the absence of restitution is an izlement of the offense of iaeuing e bad check. It la our opinion that the legialeture intends thet I:hc effect of meking restitution for having issued s bsd check is within the discretion of the prosecutor whose office initiates collectlca. and processing the check or the judge before whom the offense is pending. See also Code Grim. Proc. art.
102.007 (fee for prosecutor's office for collecting and processing check thet constitutes offense under Penel Code 131.03; 131.04; 132.41).
You inquire whether s collection agency may cherge the processing fee even though the collection agency is not party to whom the diehonored check wee written. We conclude thet the lenguege of rticle 9022 expresses en jstention on the pert of the legisleture to euthorize the charging of a resaoneble processing fee by such sn Article 9022 atatee thet the holder of e check or its w-7. assignee. *gent, repreaen~:trtive. or eny other person retained by the holder to seek collection of the fete velue of a dishonored check may charge the drawer or endorser e ressonable processfng fee. not to exceed $15.
You lao sek whether e civil suit ie the only loge1 recourse of s holder of l dishonored check or s collection sgancy for the collection of e processing fee suthoriaed by article 9022, V.T.C.S. Prosecution of en offenaa, egainat the state under the Penal Code is not i.nitleted by the bolder of check or s collection sgency but is decormined by the atate':~ prosecuting attorneys and the courts. A *5 . Rormreble George Pierce - Page 5 (a-472)
processing fee under srtlc1.o 9022 is e civil matter, end the only legal recourse svsilsble to the holder of the check or s collection agency for the collection of such e processing fee is s civil suit.
SUMMARY The charge snd payment of processing fee for s dishonored under srticle 9022, V.T.C.S..
is e civil mettex. The fsilure to psy the pro- ceasing fee is 001: an element of an offense of theft or of Issuance s bad check under the Penal Code and does not affect the evidentiary presumptions provided by sections 31.06(s) and 32.41(b) of the Pens1 Code. A civil suit is the only legal recoume svsilsble to s holder of a dishonored check or a collection agency for the collection of such a processing fee.
r, JIM MATTOX Attorney General of Texas
- .
JACK BIGETOWKR
First Assistant Attorney Geuersl
MARY KELLER
Executive Assistant Attornelr General
ROBERT GRAY
Special Assiatsnt Attoruey Gtmersl
RICK GILPIR
Chairman, Opinion Committee
Prepsred by Nancy Sutton
Asaistsnt Attorney General