Criminal District Attorney - Hot Checks
Letter to Merchants
April 21, 2020
Dear Comal County Merchant:
I am pleased to administer a Hot Check Division within the Comal County Criminal District Attorney’s Office. In an effort to improve effectiveness and investigative thoroughness, I have implemented a new protocol for filing Hot Check cases. I appreciate your cooperation in these new efforts.
A “hot check” is a check that is not backed by sufficient funds in the account on which it is drawn. My office criminally prosecutes individuals who commit theft by using a hot check as a weapon of deception to obtain products or services. My office must be able to prove beyond a reasonable doubt, through admissible evidence, that a person who wrote a hot check used the hot check or some other token to deceive a merchant into providing a service or product. The focus of the law surrounding criminal “hot check” cases is not necessarily the merchant’s reasonable expectation of being paid. Instead, the focus is on proving that a person intended or knew that they were going to steal a service or product before they received it and used a hot check or some other token to deceive the merchant into providing the service or product. The Courts in Texas have ruled that in cases dealing with a check written for services to be a theft, the check MUST be written PRIOR to the service being rendered. The new protocol being implemented for filing hot check cases will help provide the information necessary for my office to effectively review and prosecute criminal theft cases that involve the use of a hot check.
However, not all cases that involve hot checks are criminal theft cases that my office will be able to prosecute. Some hot check cases actually consist of a civil disagreement between the parties concerning the quality or quantity of the goods or services provided. In those cases, there may be a civil breach of contract by one or more of the parties. However, in such cases, my office does not have lawful authority to provide legal representation. In those cases, a private lawyer may be able to help you collect on the check or resolve the disagreement.
Procedure and Protocol
In order to effectively and efficiently review hot check cases, I ask that you help us in providing the following detailed information to my Hot Check Division:
1. the original check (or substitute check – see attached) sent by bank to you that shows the following on the face of the check:
a. the name and address of the individual presenting the check;
b. the driver’s license number;
c. a telephone number of the individual presenting the check;
d. check was not post-dated; and
e. the stamped reason why check was denied by bank;
2. a completed, signed and sworn Complaint and Affidavit form available online or at the Hot Check Division of the Comal County Criminal District Attorney;
3. 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. If the person signs the green card, please give ten (10) days from the date on the green card before filing. Send the letter to the address on the check. If the person gives you a different address, send a letter to that address also. A sample letter is available online or at the Hot Check Division of the Comal County Criminal District Attorney; and
4. A copy of the letter that was sent to the check writer.
5. Any and all documents, agreements, writings, letters, etc. used and relied upon in the transaction. For example, if there was a rental agreement, lease agreement, contract, or receipts from related transactions, those must be provided.
6. A statement indicating the circumstances surrounding the transaction/receipt of the check, any contact made with the check writer (verbal or otherwise), any statements made by the check writer, and any payments made after the check was returned for insufficient funds. Please provide as much information as possible so we can properly evaluate your situation.
7. Before the case is filed and/or goes to trial, you may get notification that a more thorough and detailed form will have to be filled out.
Effective with checks written on or after September 1, 2007, we are now allowed to collect the additional delivery notification fee for certified return receipt notices. Merchants must provide my office with proof of costs for us to be able to collect these additional fees.
1. If the driver’s license is printed on the check, ask to see the check writer’s driver’s license. This is extremely important because at trial you will be asked under oath under the penalty of perjury that you verified the identity of the check writer. If you cannot verify the check writer’s identity, then my office cannot prosecute the charge. Just because the number is on the check does not necessarily mean that it belongs to the person presenting or signing the check.
2. Another great way in securing the identity of a check writer is to obtain their thumbprint on the face of the check. Many office supply stores sell inexpensive inkless thumbprint pads that can be used easily for these purposes. A search of the internet will provide many examples of various inexpensive thumbprint systems and pads.
3. The Office of the Criminal District Attorney may refer your case to local law enforcement agencies for further investigation.
4. It is important that you provide us with as much detail of the transaction as possible to prevent any more delay than is necessary in reviewing your case.
5. If you sell services and have your customers sign some type of service order, adding the following language to your service order agreement would be very helpful:
“I understand that the services herein are provided only for compensation. By accepting services I am representing that I have sufficient funds available to pay for the services herein and I agree to provide full payment upon completion of these services.”
In your service,
Jennifer A. Tharp
SAMPLE OF SUBSTITUTE CHECK
Substitute check is on yellow or white paper
If you have any questions or suggestions, please do not hesitate to call 830-221-1300 for the Hot Check Division.