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LOCAL JP OFFICE
|The local county attorney’s office is
only place to take a hot check for criminal prosecution and assistance in
collecting it. The good news is that every Justice
of the Peace in Texas has statutory authority to accept criminal
misdemeanor complaints filed by victims of hot checks that are given in
violation of Section 32.41 of the Texas Penal Code, entitled “Issuance
of Bad Check.”
Click the check for forms
The JP’s statutory power can really help you collect the money
for which you were given a hot check if you know the right information. Here is
how it all works at the JP court level.
Step by Step
here for a printed version of this information)
given for criminal prosecution if it is returned for insufficient funds or a
closed or non-existent account. The passing of a bad check (hot check) for
any purpose is a misdemeanor under the above criminal statute, regardless of
the dollar amount of the check. A check that is returned for
“stop-payment,” however, is not a criminal offense under the statute.
check has been returned because of insufficient funds or a closed or
non-existent account, first try to contact the check writer by phone or send
him a friendly note just in case the returned check is a fluke or honest
mistake by a resident or applicant who is likely to promptly make the check
good if given a chance.
If the hot
check writer comes in to pay you, and the check has been turned over to the
JP court, have them check with/contact the court.
If giving a
second chance to the hot check writer doesn’t work, you need to send a
written demand for payment to the check writer by certified mail, return
receipt requested, or by regular mail, as long as you fill out an affidavit
of services by mail.
"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.”
In order to
maximize the chances of payment if you send notice by certified mail, you
should also send the notice by regular mail (although it is not legally
necessary) since so many people refuse to pick up certified mail. You
should fill out the “Affidavit of Service by Mail” if you send a copy by
regular mail to show that you have provided the notice in multiple ways.
You should retain a copy of the notice and the certified mail green card
when it is returned by the mail carrier (or the envelope if it is returned
by the U.S. Postal Service, unclaimed). Note that when the U.S. Postal
Service attempts delivery of certified mail, it is deemed as delivered for
all legal purposes—in other words, attempted delivery of certified mail
satisfies any notice obligations under the statute.
When you get
the green card or the unclaimed certified mail letter back from the U.S.
Postal Service, you then need to take the original of the returned check, a
copy of your demand letter, and the green card (or unclaimed demand letter)
to the local JP office and tell the clerk that you want to file a criminal
complaint for issuance of a bad check. Similarly, if you sent notice by
regular mail, you will want to take a copy of the notice, the affidavit and
the original of the returned check when you go to the local JP office to
file the criminal complaint.
The JP clerk
then will have you fill out and sign an “IBC” criminal complaint form. (IBC
stands for “Issuance of Bad Check.”) The person filing the criminal
complaint does not have to pay any fees.
The JP clerk
will then prepare and mail a criminal citation to the check writer, stating
that the check writer has 30 days to come to the JP office and plead
“guilty,” or “not guilty,” or “nolo contendere” and that if the check writer
doesn’t do one of those things by the deadline in the citation, an arrest
warrant will be issued.
If the hot
check writer shows up in court and pleads guilty or nolo contendere and
produces evidence that the hot check has been paid un full, nearly all JPs
will reduce the fine substantially, but the JPs will still make the check
writer pay all court costs.
If the hot
check writer shows up and pleads guilty or nolo contendere without proof of
payment in full, the JP will impose a fine on the check writer and order him
to pay the fine and court costs. If the hot check writer pleads not guilty,
then they will proceed to court.
If the hot
check writer fails to show up as required in the citation, the court at the
end of the designated waiting period in the citation will issue a warrant
for the check writer’s arrest. The JP’s office does not send the constable
out to apprehend the check writer. However, the arrest warrant is promptly
entered into the statewide Department of Public Safety data bank system.
Then, whenever the check writer is stopped for a traffic violation, arrested
for another suspected crime or tries to renew his driver’s license, the law
enforcement officers will learn of the outstanding arrest warrant and can
escort the check writer to jail on the spot.
of Bad Check - FYI and FAQ