Other Divisions FAQ
The Check Fraud Division of the District Attorney's Office is responsible for investigating and prosecuting the offense of theft by check.
The Check Fraud Division is part of the Special Prosecutions Bureau of the Harris County District Attorney's Office. The Check Fraud Division is one of the few divisions at the District Attorney's Office that is able to take reports of criminal conduct directly from the victim
of the crime. In virtually all other crimes, allegations of criminal conduct are reported to the police, and the District Attorney's Office reviews the police report to decide what charges, if any, are appropriate. The cases that can ordinarily be handled by the Check Fraud Division without the necessity of a police report are those in which a person writes his or her own check in exchange for goods, services or cash, and in which the victim can identify that person.
A checkwriter may also be prosecuted by the Check Fraud Division for a violation of a issuance of a bad check if a check was given to pay court ordered
child support and was later dishonored by the bank on which it was drawn. You will need to obtain a certified copy of the decree establishing the obligation for child support and follow the directions in the How to file section below.
Can I charge the checkwriter for my expenses?
You may charge a reasonable fee not to exceed $30.00.
What do I do if the check writer has filed bankruptcy?
A debtor who files a bankruptcy petition is protected from further collection attempts. That protection is called the automatic stay. If the person who wrote you a bad check has filed for bankruptcy protection, you are likely to be listed as a creditor and the Bankruptcy Court will consider you a creditor even though you did not voluntarily extend credit. If you receive notices from the Bankruptcy Court, you must respond to the notices in order to protect your interests. Should you ignore the notices, you risk forfeiting any further opportunity to collect restitution for the check. If you are listed as a creditor, whether the case is still pending or already closed, you will need to contact the Bankruptcy Court to determine what steps you may take to collect the money owed to you.
The bankruptcy court, however, provides no protection from criminal prosecution for crimes the debtor may have committed, including theft by check or issuance of a bad check A judge or jury in a state court can find the checkwriter guilty and levy the appropriate sentence and may order restitution to be paid, despite the bankruptcy.
You may file a complaint with us for the theft if the transaction meets the criteria for theft by check. Let us know that the checkwriter filed a case in the bankruptcy court when you submit the complaint. Please make copies of any correspondence you receive regarding the bankruptcy case and forward the copies to us so that we may include the information in our case file.
What do I do if my case is rejected?
If you have received notice that we will not be able to prosecute the case you submitted, you may be able to file a complaint for issuance of a bad check or you may be able to file a civil suit. You can reclaim your original documents from us by sending us a letter on your own letterhead requesting return of your originals or by appearing at our office with identification. If you stop by the office to pick up your originals, be aware that, depending on how busy we are at the time, you may have a small wait while we make copies for our records. We advise you to call ahead [713-755-7883] and let us know when you are stopping by so that we can make the copies ahead of time.
If you fail to understand our explanation of the reason for the rejection, please feel free to contact the employee who signed the letter informing you of the rejection.
What should I do if the check writer sends me a forgery affidavit?
A forgery affidavit is a form in which an individual swears before a notary public that the check listed on the form was not written by the person who signed the affidavit. The notarization vouches for the fact that the person purported to have signed the affidavit proved his/her identity to the notary's satisfaction, not for the truth of the claim of the affidavit. You will have to make the determination whether you believe the affidavit or not. You are not required to accept the affidavit as fact.
If you are convinced, however, that the check you were given is forged, you should contact the police agency with jurisdiction in the area where you received the check. Because investigation of a forgery case requires resources in excess of those available with the Check Fraud Division, we are unable to accept complaints on forgery cases.
If, on the other hand, you believe that the checkwriter is indeed the account holder and that the checks are not forgeries, you may submit a complaint if the transaction qualifies as a theft situation. Please send along a copy of the forgery affidavit and any information you may have which helped you disbelieve the affidavit (for instance, you have done business with the checkwriter before, you performed work at the address for the person listed on the check as account holder). If, after our investigation, we determine the check is probably a forgery, we will notify you of that and you can reclaim your documents and file a report with the police agency with jurisdiction.
Why is a check for payment of a debt not a theft?
Texas has, since its inception as a nation in 1836 and its later incorporation into the United States, been a jurisdiction that is kind to debtors. This is in contrast to the practices of other states that are much more pro-creditor.
Many of the Americans who came to Texas during the initial Anglo settlement of the area came to start a new life and left behind their old life, including their debts. The letters "GTT" left scrawled on one's door in Kentucky amounted to a form of de facto bankruptcy making it clear to any creditors left behind that their extension of credit was an unwise one.
The nature of the founders of Texas has much to do with its liberal laws in favor of debtors. Considerable protection for debtors is contained in the Texas Constitution (click here for the "Texas Constitution"). Considerable property is exempt from seizure to pay judgments, for example. The majority of people in Texas are, in fact, judgment-proof, meaning that all of the property they own is exempt from seizure to pay debts. Wages likewise are immune from garnishment for payment of most debts.
Our criminal laws are drafted in a way that acknowledges and expands the pro-debtor bias of the constitution. For example, the definitions regarding theft explicitly state that deception for purposes of the theft statute does not include mere failure to perform on one's contracts. Another example is a provision in the probation laws of this state (now called community supervision) which prohibit a judge from revoking probation of a defendant (and imprisoning him) if he/she fails to pay restitution assuming that defendant can show that he/she is unable to pay restitution.
The law of issuance of a bad check makes it a crime to write a bad check, even if the check is for payment of a pre-existing debt, but (with the narrow exception of checks written for child support) it carries no imprisonment as punishment. The maximum punishment is a fine of $500.00.
With the foregoing historical background, it is easy to understand that Texas does not criminalize the owing of a debt. If a bad check is given to pay a debt, the issuance of that check, while it may be a criminal offense, is not a theft. Instead, it is the non-imprisonment offense of issuance of a bad check
Phrased another way, a bad check is a lie
. If the person who wrote the check led you to believe it was a good check, yet knew it was not good, he or she lied to you. The lie
is punished as issuance of a bad check On the other hand, if a person lies to you in order to get you to give them property or services and you give them the property or services because you believed the lie, the person committed a theft
Lying with checks and stealing with checks are two separate offenses. Lying about whether a check is good (and introducing it into commerce) is issuance of a bad check Using a bad check to deceive another out of his/her property is theft
. The other check offense involves signing another person's name on a check. That crime is forgery if done with intent to defraud.
Although in most
cases a check given for a pre-existing debt does not meet the requirements for a theft charge, a very narrow exception exists. IF the check writer obtained possession of additional merchandise or secured the performance of further service because he/she paid a pre-existing debt
, then the checkwriter may have stolen the additional merchandise or the further service if he/she would not have been able to obtain the merchandise or service without paying the existing debt. If you think your check may qualify as a theft even though its purpose was for payment of a pre-existing debt because the checkwriter secured further merchandise or services by writing the check, you may contact us either via email at Check Fraud
or by calling at 713-755-7885.
Can I continue collection efforts after I turn the check over to the Check Fraud Division?/ What if the checkwriter contacts me about making restitution?/What if the check writer’s attorney contacts me about dismissing the case if the check writer makes restitution?
We prefer that you wait until our investigation is complete to continue your collection efforts. While you may, of course, continue to try to collect, great confusion can result from our prosecution simultaneous with your collection. If you choose to continue collection efforts, remember the following points:
- You may not promise to stop our investigation by accepting money.
- You may not promise to dismiss the case if restitution is paid. You are no longer a party to the case once we file, rather you are a witness. Only the Assistant District Attorney handling the case can dismiss the case once it is filed.
- You must let us know if you receive any restitution. Otherwise, we may waste time and resources trying to get the checkwriter to pay you restitution when it has already been paid in part or in full.
- If you receive restitution, write us a letter on your letterhead indicating when you received the payment and for how much.
Why do you need the check receiver's name and date of birth?
All of the information we request of you on the various complaint forms is requested because we need the information in order to investigate your complaint. None, however, is more important than the identity of the check receiver and the check receiver's date of birth. We must swear to the judge or inform the Grand Jury that all of the witnesses whose statements we used were credible people, therefore, we must check the criminal history of all persons who provided us with the information we used to file the case. If we have either a nickname or partial name and a wrong or no birthdate, we are unable to determine that the witness is credible and cannot file the case.
Be assured, however, that the information in our files is confidential and not available to the general public until it becomes public as a public filing or court proceeding. Rarely is the check receiver's date of birth included in any documents subject to public filing.
How long will it take to get my money?
Please understand that the purpose of the Check Fraud Division is not collection but rather prosecution of individuals who commit acts prohibited by Texas law. While we are very interested in securing restitution for you, we may not be able to do that. We make no promises that we will get your money for you. In most cases, whether restitution is ordered by the court is determined by the judge and thus is beyond our control. Furthermore, many defendants have no money. They've spent or used what they stole from you and they don't have more money to pay you back. A judge may instead order such a defendant to serve time in jail in order to pay his/her debt to society. In that case, restitution will not be ordered. If, however, restitution is received by this office, the financial administrator will contact you immediately to let you know that we have money for you. Since we generally accept only cashier's checks, we can transfer those to you just as we receive them. With a mail release we can usually mail them to you within twenty-four hours of our receipt of them. Without a mail release, you will be required to present identification at this office to obtain your restitution. In the case of court ordered restitution (usually as a term of probation), you will receive all restitution directly from the Harris County Probation Department but you must complete and return the forms they send to you. Even if we do not get restitution for you, you may be able to file a suit in the civil courts in order to recover your losses. You should contact either the Justice of the Peace or a private attorney for advice on how to file a civil suit.
Can I take a partial payment for restitution?/What if the checkwriter has paid some restitution?
Payment of partial restitution by the defendant does not prevent the District Attorney from successfully prosecuting any theft case, including theft by check cases. This is so for the common sense reason that the theft, if there was one, was complete when it was committed. Subsequent actions cannot change the history of the case. This issue is also dealt with in the presumption of theft by check.
Is it a theft or a bad check?
Under Texas law, a person commits a theft of property or services if that person unlawfully appropriates property or secures performance of a service from the owner by deception Inducing an owner to give up property by giving the owner a check which the issuer knows will be dishonored by the bank qualifies as deception if the owner provided the goods in good faith reliance that the check would be honored by the bank on which it was drawn. The key under the law is that the owner must give the merchandise at the time the check writer renders the check. Furthermore, inducing a provider of services to provide services by giving the provider a check which the issuer knows will be dishonored by the bank qualifies as deception if the service provider provided those services in good faith reliance that the check would be honored by the bank on which it was drawn. The key under the law is that the owner must provide the service at the time the check writer renders the check.
Please note that the following types of checks do not qualify under this criterion:
* Hold Checks
* Post-Dated Checks
* Third-Party Checks
* Payroll Checks
* Checks for Debts Owed
In the case of check like the ones listed above, however, if the checkwriter knew at the time the checkwriter issued the check that the account on which the check was drawn held insufficient funds to cover this check as well as all other outstanding checks, the checkwriter may have committed the crime of Issuance of a Bad Check. Complaints involving the crime of Issuance of a Bad Check are not investigated by the Check Fraud Division of the District Attorney's Office, but may be filed with the Justice of the Peace of the precinct where the check was passed. For information regarding the location and telephone numbers for the Justices of the Peace in Harris County click on the Justice of the Peace link.
How long do I have to file?
The Statute of Limitations below represents the maximum time after a check is written during which we can file a theft case. We prefer that you file your complaint with us within 90 days of receiving the check. We have found that prosecution of checks older than 90 days is difficult, often impossible because witnesses forget the facts or move away or otherwise become unavailable. The Statute of Limitations for Theft is as follows:
- misdemeanor = 2 years from the date the check was written
A misdemeanor is generally charged when a check is exchanged for property whose value is less than $1500.00 and the property stolen does not include firearms, sheep, cattle, horses, or exotic animals.
- felony = 5 years from the date the check was written
A felony is generally charged when a check is exchanged for property whose value is $1500,00 or more or does include firearms, sheep, cattle, horses, or exotic animals.
The Statute of Limitations runs until the case is either indicted by the Grand Jury or signed by the judge in the case of a misdemeanor.
Once the case is filed, the Statute of Limitations no longer applies except if the case must be refiled
To file a theft by check complaint with the District Attorney's Check Fraud Division, you must:
(1) send the statutory notice to the check writer
(2) fill out the appropriate sworn and notarized complaint form and related documents
(3) submit the complaint form, along with documentary evidence in the form of copies of the notice you sent, postal documents showing the notice was sent, and any invoices, receipts or register tapes showing what was stolen.
The following is a more detailed description of the above steps needed to file a complaint with us.
* The Statutory Notice. The first thing you must do to file a theft by check case is to send the appropriate demand letter to the check writer. The law requires that potential complainants in check fraud cases send a notice letter containing the exact, specific language spelled out in the statute. A proper notice letter includes the statutory demand language, gives the check writer ten days to pay the check, and is sent either by registered or certified mail (with return receipt requested) or by First Class mail with an affidavit of service. Be sure to keep a photocopy of the demand letter that you send. We will need that copy to prove any theft by check case that goes to trial. Once the green receipt card comes back to you, or the returned letter with the green card still attached (do not open the returned letter!), and more than ten days have elapsed, you may take the next step.
* The Complaint Form and related documents. You must fill out a complaint form: a "complaint form" if you have one check from one checkwriter; a "multiple complaint form" if you have more than one check from one checkwriter. At the end of each complaint form is an affidavit. Please read it carefully and fill in the blanks correctly, then have the form witnessed by a notary public. You will be swearing to the statements you made by filling in the blanks. If you are not able to swear to all of the statements in the complaint form, call us. We will be glad to assist you in altering the statements, if possible. You may fill out a mail restitution release. If you choose to fill out the mail restitution release, we will mail any restitution we receive on your behalf to you immediately. Since, as a rule, we accept only cashier's checks made out to you or your company, we are able to mail restitution payments out to you immediately after we receive them. We cannot, however, be responsible for restitution payments lost in the mail, so if you doubt the reliability of U.S. mail at your place of business or residence, do not fill out the mail restitution release. In that case, we will notify you when we have restitution for you and you may come in person to our office and pick it up with appropriate identification.
If the merchandise taken by the checkwriter is an automobile, you will need to fill out the automobile addendum. The information we request on that form is very important so please locate any information you may not have readily available.
* Documentary Evidence. You will need to submit the original check, the certified letter receipt, a copy of the letter you sent, and copies of the invoice, work order, cash register receipt, if any exist, along with any notes or information you have been able to gather regarding the transaction or the checkwriter. Please make sure that you decipher any trade jargon or stock numbers so that we can understand in common terms what was stolen. If you made attempts to collect the check before bringing it to the District Attorney's Office, it is extremely important that such attempts be documented in as much detail as you remember. It may be some time before the defendant is arrested. The notes you submit to us can be used at that time to refresh your memory before you testify at the defendant's trial.
* Submitting the case. The materials mentioned above should be brought to our office. Unless it is impractical for you to come in person, we prefer that you bring the materials in rather than mailing them. If you appear in person, we can rapidly review the documents for errors and avoid delays caused by our having to send the documents back to you for more information. Our address is:
Check Fraud Division
1201 Franklin, Suite 600
Houston, Texas 77002
What happens once my case is filed?
Once a complaint is filed with this office, the checkwriter is notified and a file jacket is prepared. Your forms will receive a cursory inspection at this time to spot glaring errors. For most cases a grand jury subpoena will be prepared in order to obtain bank records of the account on which the check was drawn. It is important that we inspect signature documents and monthly statements of the account around the time the check was written. If you took a driver's license or identification number, we will check to see who is the owner of that number according to official records. Once all preliminary documentation is collected, an employee of the Check Fraud Division will look carefully at the documents you submitted and determine whether all elements of theft can be met with the information on hand. If not, the employee will take steps to obtain the necessary documents or call you if further information from you is necessary. Many times, however, the checkwriter receives no further notice of our investigation.
When the case is ready to file, the Check Fraud employee will organize the information and charging documents will be prepared. In the case of a misdemeanor theft (generally, the value of the merchandise or service stolen is less than $1500.00), a probable cause statement will be prepared also which tells the judge why we believe the crime was committed by the particular individual identified in the charging documents. The case will be presented to a County Court Judge for issuance of arrest documents if he/she is convinced by the probable cause statement. If the merchandise or service stolen, however, exceeds $1500.00 or includes a firearm, cattle, horses, sheep or exotic animals, the case will normally be prepared as a felony. Once charging documents are prepared in a felony case the case will be presented to the Grand Jury by the Chief of the Check Fraud Division. You will be notified if the Grand Jury wishes to speak with you. If the Grand Jury indicts the case a warrant will issue.
Once the warrant is issued, the Harris County Sheriff's Office will take over in arresting the defendant. We will send you a letter once the warrant is issued. We cannot take further action until the defendant is arrested and the case appears on the court docket. Assistant District Attorneys assigned to the various misdemeanor courts will prosecute the cases once the misdemeanor is set for court appearance. John Boone, or Bernadette Haby, the lawyers assigned to the Check Fraud Division, personally prosecute felony cases.
We will attempt to notify you of all significant occurrences regarding the complaint you filed and the resulting case if you keep us apprised of your current address and telephone number . Keep in mind, though, that it generally takes us two to four months to investigate and file a misdemeanor case and nine to twelve months to investigate and present to the Grand Jury a felony case. Problems with incomplete or inaccurate complaint forms or in obtaining information or bank records will slow the process. If you have not heard from us in the appropriate time you may contact us via email at Check Fraud or by phone at 713-755-7885.
How can I minimize my business's losses to bad checks?
Never accept a check without checking the ID of the person signing the check. Always be sure to compare the picture on the ID of the checkwriter to the person standing in front of you offering the check as payment. Never allow the checkwriter to tell you the ID number, always look at it yourself and record it carefully. If you file a complaint on the case with the District Attorney's Check Fraud Division, you will be required to swear that the person who stood before you was the same person whose ID number you recorded.
Several banks in Harris County have reduced their losses to bad checks by asking check cashers to provide a thumb print when cashing a check. The print is inkless, and the equipment is inexpensive and readily available from several vendors. You can contact your bank for the names of the companies providing such products or feel free to contact us for more information as to how the practice can limit your exposure to losses from certain types of bad checks.
Do you think you have been accused of writing a bad check?
What you need to do if you've been accused of writing a bad check will depend on a number of factors. The following list includes most situations in which you might find yourself if you've been accused of a theft involving a check.
- You've been arrested on a theft charge involving a check. You must appear at your court setting. You may, if you choose, hire an attorney to represent you. If you want to hire an attorney but you are unable to afford to hire one, you will need to talk with the court when you appear there. If you wish to make restitution, you may contact the Check Fraud Division once your bond is posted to find out how much you owe. You should call 713-755-7886 first to get exact amounts of each cashier's check and you can bring the restitution payment to the Check Fraud Division at 1201 Franklin. Paying restitution will not make the case go away but it will provide you with receipts to show the Assistant District Attorney in the Court as well as the judge that you have already paid the restitution.
- You think an arrest warrant has been issued in your name. First, you must alleviate your fugitive status by having a bond posted either by posting the bond yourself or by hiring a bondsperson to post your bond for you. You should turn yourself in to the Harris County Sheriff's Department if you are unable to post a bond. In either case, until you have alleviated your fugitive status, we cannot release any information to you regarding the case or the check. You must appear at your court setting. You may, if you choose, hire an attorney to represent you. If you want to hire an attorney but you are unable to afford to hire one, you will need to talk with the court when you appear there. If you wish to make restitution, you may contact the Check Fraud Division once your bond is posted to find out how much you owe. You should call 713-755-7886 first to get exact amounts of each cashier's check and you can bring the restitution payment to the Check Fraud Division at 1201 Franklin. Paying restitution will not make the case go away but it will provide you with receipts to show the Assistant District Attorney in the Court as well as the judge that you have already paid the restitution.
- You got a letter from us. If you wrote the check, you should call us immediately or bring in or send in the restitution according to the directions on the letter. Please note that the letter gives you 10 days only. The case may well be filed at the end of the 10 day period. If you did not write the check, you must submit copies of forgery affidavits, police reports, statements, and any other information you have that might inform us about the situation. That might include handwriting samples, witness statements, a copy of your driver's license or ID. Please include a telephone number and/or address where we might reach you. If we are unable to establish the case as a probable forgery, we may need to contact you for further information. Merely sending in a forgery affidavit will rarely convince us that the check is a forgery. The notarization is a verification for the fact that the notary was satisfied and vouches for the fact that you signed the affidavit--not for the truth of the affidavit itself!
- You wrote a check to someone and you know the check was returned by the bank unpaid yet you have received no notice from the merchant. Call the merchant immediately. You can save yourself a lot of trouble by taking care of the problem before a complaint is filed.
- Someone is forging your name on checks. You should contact your bank in order to determine what procedures you need to follow with them and contact the police agency with jurisdiction and make a report. Whenever you receive notification from a merchant that a check in your name has been dishonored, you should contact the merchant and explain the situation. If a complaint is filed with this office, you should contact us directly. You may submit copies of forgery affidavits, police reports, statements, and any other information you have that might inform us about the situation. That might include handwriting samples, witness statements, a copy of your driver's license or ID. Please include a telephone number and/or address where we might reach you. If we are unable to establish the case as a probable forgery, we may need to contact you for further information. Merely, sending in a forgery affidavit will rarely convince us that the check is a forgery. The notarization is a verification for the fact that the notary was satisfied and vouches for the fact that you signed the affidavit--not for the truth of the affidavit itself!
- Someone is using your driver's license number to pass checks. Unless the person is also signing your name or a name you have used in the past, we will not be able to help you. It may be that the person randomly chose your number by altering his/her own license or that the person obtained your number somehow and copied it. In either case you will need to contact the Department of Public Safety to see what steps you must take in order to change your number. You may also wish to see an attorney if you are denied checkwriting privileges at stores merely because of the common driver's license number being used. In any case, we do not assume that you are the person who is writing the checks merely because your driver's license number is being used and would refrain from filing cases against you based only on the license number.
What types of checks should be considered high risk?
- Temporary checks: Checks that are not personalized are often a risk. They do not have the account owner's name printed on each check. How can you know that the person giving you the check owns the account on which the check is drawn?
- Low numbered checks: 9 out of 10 bad checks bear numbers smaller than 300.
- Checkwriter presents an ID other than a driver's license: Beware of checks offered by checkwriters who present for identification passports, green cards, student IDs and military Ids.
- Non-local checkwriters: Non-local checkwriters are much harder for us to identify and prosecute. Out-of-state bank records are almost impossible for us to get.
- Non-residence address on the check: A post office box printed on a check as an address rather than a residence has been shown to be a risk factor.
- Illegible signature on the check: A sloppy signature may be an attempt to prevent easy comparison with the signature on the ID.
- Checks written for the amounts in excess of the cost of goods purchased: Cash is highly desirable commodity to steal.
- Multiple checks from the same account or by the same checkwriter in the same day: The checkwriter may be stealing as much as possible from you before you find out that the checks will not be honored.
- Checks written late in the day: Checkwriters know when banks close and they know that the merchant cannot verify funds in the account after the bank is closed
- Company Checks: A check receiver cannot be sure that the person presenting the check is authorized to sign a check drawn on the account; the company gopher probably doesn't know the current balance on the account.
- Two-party checks: It is usually impossible for us to establish which of the parties had intent to deceive.
- Presigned checks: You cannot swear the signer signed the check and nobody can prove the signer knew the amount for which the check would be written.
How are different types of checks handled?
- Rent checks
If you enter the lease agreement because you are relying on the check being paid immediately by the bank and the checkwriter occupies the premises, then we may be able to file a charges for theft of service if that check is dishonored by the bank and the first month's rent is also paid with a bad check or not paid at all. An eviction notice must have been given immediately upon receipt of notice that the check has been dishonored by the bank.
Periodic Rent Check
If the checkwriter gave you a check on the day the rent was due and the checkwriter continued to occupy the premises, then we may be able to file charges for theft of service if that check is dishonored by the bank. You must have served the tenant with an eviction notice immediately once you received notice that the check was dishonored by the bank. If the check was given to you in order to halt eviction proceedings, we may be able to file charges for theft of service if the check is dishonored by the bank. The lease must expressly state that occupation of the premises is contingent upon timely payment of the rent and the eviction notice must have been given immediately when rent was not paid, or if the rent was paid by bad check, immediately upon notice of the bank's dishonor of the check. If you don't give the tenant an eviction notice immediately when the rent is late, then you waive theft action in criminal courts! You must have withdrawn eviction proceedings because a check was given which you believed would be paid by the bank and the tenant remained in possession of the premises.
The most important element to be satisfied in order for us to file criminal charges is that the eviction notice must have been served at the first sign that the tenant has not paid in a timely manner!
- Payroll Checks
You may not ordinarily file a complaint with us if you received a check as a payroll disbursement and it was subsequently dishonored by the bank on which it was drawn. You should contact the Texas Workforce Commission at 1-800-832-9243 to determine what recourse is available to you. You may also be able to file a complaint for issuance of a bad check with the Justice of the Peace.
- Stop Payment Checks
When a customer directs, in the appropriate manner, a bank to stop payment on a particular check the bank is required to refrain from paying that check. If you receive a check for merchandise or service you provide and the bank returns the check to you unpaid because it received a stop payment order, you may be able to file a complaint against the checkwriter for theft under certain circumstances.
The law differentiates between checks written for merchandise and those written for services. If services were obtained by writing a check on which a stop payment was ordered, the letter sent is the same demand letter as for an NSF (insufficient funds) check the deciding factor for prosecution in such cases is whether the account held sufficient funds to pay that check as well as all other checks still outstanding. If our investigation fails to show that the check was insufficient, then our investigation will be terminated. Checks written in order to obtain merchandise, however, which are returned marked 'stop payment' are treated differently. The following paragraph describes in detail the steps necessary to initiate a theft investigation.
A check written for merchandise and later not paid because of a stop payment order requires that a special stop payment demand letter be sent. The letter, because the law requires it, gives the checkwriter 10 days to either return the merchandise or pay the check. (See specific verbiage in the sample letter.) Your acceptance of the return of the merchandise is not optional if you wish to file a criminal complaint for theft. In other words, if you wish to file a complaint with us on the check, you must accept the merchandise if it is returned to you. If you get the merchandise back, you may not file a complaint with us, but you may seek compensation for any degradation in the value of the merchandise through the civil courts.
If the check you hold was written for perishable merchandise (for example, prepared sandwiches) or was for a mixture of goods and services, please contact the office via email at Check Fraud or by telephone at 713-755-7885 to discuss which procedure must be followed.
- Checks for C.O.D. Deliveries
When merchandise is delivered C.O.D. to a customer within Harris County by your company employee and it meets the criteria for a theft by check, the case will be treated the same as a case in which the checkwriter came into your place of business and wrote the check for merchandise or services. In that situation, in order to file your complaint with us, you will need to complete either a complaint form if you have a single check or a complaint addendum form if you have more than one check from the same checkwriter.
When merchandise is delivered C.O.D. to a customer within Harris County by a delivery company and the transaction meets the criteria for a theft by check, you will need to fill out the C.O.D. complaint form as fully as you are able.
If the delivery company was United Parcel Service (UPS), you will need to send the complaint, after you have filled out as much information as you are able (usually all except #6 through #10), to Jerry McGee at 8330 Sweetwater Lane, Houston, Texas 77037. Remember to include the number from the verification of delivery. Mr. McGee must have that information in order to provide the information you need on the form. Once Mr. McGee has completed the form, he will either send the form on to us or back to you.
If the delivery company was other than UPS, you should contact the company regarding what steps you must take in order to obtain the necessary information.
- Checks Given to Pay Debts
In most cases checks given to pay pre-existing debts do not meet the requirements for a theft charge. You may, however, be able to file a complaint for issuance of a bad check. If the checkwriter obtained possession of additional merchandise or secured performance of a further service because he/she paid a pre-existing debt, then the checkwriter may have stolen the additional merchandise or the further service if he/she would not have been able to obtain the merchandise or service without paying the existing debt. Feel free to contact us if you think your check may qualify as a theft even though its purpose was for payment of a pre-existing debt.
- Post-dated Checks
If you willingly accepted a post-dated check in exchange for merchandise or a service, you extended credit to the checkwriter. In most cases, the transaction does not qualify as a theft since you released the merchandise or performed the service in reliance of the checkwriter's promise to pay at some later date rather than in reliance of the check's negotiability. You may be able to file a complaint for issuance of a bad check or a civil suit in the small claims court of the Justice of the Peace of the precinct where the check was passed.
- Hold Checks
If you willingly accepted a check which you agreed to hold before presenting to the bank for payment in exchange for merchandise or a service, you extended credit to the checkwriter. In most cases, the transaction does not qualify as a theft since you released the merchandise or performed the service in reliance of the checkwriter's promise to pay at some later date rather than in reliance of the check's negotiability. You may be able to file a complaint for issuance of a bad check or a civil suit in the small claims court of the Justice of the Peace of the precinct where the check was passed.
- Third-party Checks
In most cases in which you gave cash , merchandise, or services in exchange for a check made payable to someone other than yourself or your company you will not be able to file a complaint with the Check Fraud Division. In cases involving third-party checks, it usually proves to be impossible for us to establish which of the other parties involved possessed the intent to commit the theft.
If you willingly accepted a draft for merchandise or a service, you extended credit to the checkwriter. In most cases, the transaction does not qualify as a theft since you released the merchandise or performed the service in reliance of the checkwriter's promise to pay at some later date rather than in reliance of the check's negotiability. You may be able to file a complaint for issuance of a bad check or a civil suit in the small claims court of the Justice of the Peace of the precinct where the check was passed.
- Checks for Less than $20.00
Checks for less than $20.00 excluding sales tax cannot be filed as a theft by check unless you received more than one check from the same checkwriter and the total of all checks is more than $20.00. You most likely can file those checks as a complaint for issuance of a bad check or a civil suit in the small claims court of the Justice of the Peace of the precinct where the check was passed.
- Company Checks
As long as the transaction in which you received this check satisfies the requirements of theft, you may file a complaint for theft with the Check Fraud Division. Please be sure, however, to send all demand letters to the person who signed the check, not to the company generally. If two people signed the check, send a demand letter to each of them and fill out a separate complaint form for each signer.
- Forged Checks
If you are convinced that the check you were given is forged, you should contact the police agency with jurisdiction in the area where you received the check. Because investigation of a forgery case requires resources in excess of those available with the Check Fraud Division, we are unable to accept complaints on forgery cases. If, on the other hand, you believe that the checkwriter is indeed the account holder and that the checks are not forgeries, you may submit a complaint if the transaction qualifies as a theft situation. If, after our investigation, we determine the check is probably a forgery, we will notify you and you can reclaim your documents and file the appropriate report with the police agency with jurisdiction.
- Checks Stamped "Lost or Stolen"
If you are convinced that the check you were given is forged, you should contact the police agency with jurisdiction in the area where you received the check. Because investigation of a forgery case requires resources in excess of those available with the Check Fraud Division, we are unable to accept complaints on forgery cases. If, on the other hand, you believe that the checkwriter is indeed the account holder and that the checks are not forgeries, you may submit a complaint if the transaction qualifies as a theft situation. If, after our investigation, we determine the check is probably a forgery, we will notify you and you can reclaim your documents and file a report with the police agency with jurisdiction.