The Attorney General of Texas
April 9, 1986
JIM ilATTOX
Attorney Qeneral
~~9nwCo~Sulldl~ Rowreblo George Pierce opinloo No. m-472
cheirmen
Ai&. TX. 78711. 2545
Urban Affeirs Comlttee RO: Effect of failure to pay
512l4752501
Telex 9101074.1557 Texas House of Rep~rrrsentstives a processing fee authorized by
T.l.coplsr 5121*7M255 P. 0. Box 2910 article 9022, V.T.C.S., for
Awtin, Taxes 78’169 dishonored checks
714 JaCkMn. Suile 700
OallaI. TX. 75202-4509 Dear Rapresentativs Pierce:
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,
sgmt . representative. or w other person
cr-rexu. suite 700 retained by the holder to seek collection of the
I ~ton. l7.. 77002-3111 face vs!.ue of the dishonored check on return of
7xX2235559 the check. to the holder following its dishonor by
a peyor m.sy chsrge the drawer or endorser a
905 Broadway, Suite 312 ressona~le processing fee, which shall not exceed
Lubaock lx. 79401-3479 $15.
595n47.5225
(b) Nothing herein shell be constmed as
4309 N. Tenth. Suite 8 affecting, sny right or remedy to which the holder
YcAllm. TX. 7S501.1955 of l check mey be entitled under any rule,
512s524547 regulst~.cm. written contract, judicial decision,
or other statute.
200 MaIn Plaza. Suite 400
Ssn Antonlo. TX. 752952797 You ask whether a persoo would be innocent of e theft by check
512l225-4191 cherge if the person offered the holder of a dishonored check a cash
payment in the amount of 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
Attlmutive Action Employer
dishonored check does not necessarily preclude e conviction of theft
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 l vldentlary presumptions
establiehed by Thea Penal Code. It is our opinion. however, that
refusal to pay a processing fee is not en element of the 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 lnected to reaolve uncllrteinty la to the velidlty of feee iopoaed
for proceaeing dishonored checke, which were conridered pert o f 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
do not bolievr that such 41procosaing fee becones pert of the mount
of 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 of receipt of nol:!lce thet is requkod for the l 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
e seperate, epeciflc offen:le, end l person la not prosecuted for theft
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 the 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 the 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 of knovledge of insufficient
funde ia provided by eectiun 32.41 of the Penel Code for the offense
of ieauing or peasing e bad check. Under section 32.41, e peraon
commits en offenee if he issues or passes e check for the payment of
money knowing thet the issuer does not heve sufficient funds on
p. 2159
Ronoreble George Pierce - Pepa 3 (Jn-472)
dapoelt with the benk for thr psyment in full of the check. Subaec.
(a). Subrection (b) states t:het
Thie section does wt prevent the proeecutlon
fr o lm
atebllahi.ng the required knowledge by direct
evidence; however, for purposes of thie l ec tio n,
th eissuer’s kuowladge of Insufficient fundo is
preeueed (except Lmt the case of e poet&ted check
or order) if:
(1) he had no eccount with the bsnk or
other drawee st the time he issued the check 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 the 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 of those presumptions. See Sulecie v.
e, 631 S.W.Zd et 572. It is our opinion that z evldentlery
presumptions of an lsaencia:l llemant of the offenses of theft snd
issuance of a bsd check epply where the Issuer fsila to pay the holder
the full smount of 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 the Sixty-eighth Legislature, espreaaly euthoriaes
restitution of l bsd check thst is issued or passed by l person who
knows thet sufficient funds era not on deposit. Subsection (8) states
that
[e] person cbargad tith sn offense under this
section mey make restitution for the bsd checke.
Restitution shall be made through the prosecutor’e
office if eollect:ton and processing were initiated
through thet off fee. In other ceeea reetitution
may, with the approve1 of 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.
p. 2160
Bowreble George Pierce - Pege 4 (JU-472)
For certeln purpoees, reetitution conetitutee tbet whtch io
or&red by the court. See C,odeCrir. Proc. lrt. 42.03, SS(b)(4) (work
releese programs); l rt.J.12, 18(c) (probetion revoution); lrt.
42.12, 115(g)(l) (conditiotm of parole). The provisions of aubeection
(e) neith e r nor l
define pmify the effect of “restitution.’ One of
the fundamtal rules of ltatutory construction la the 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,
174 S.W.Zd 326, 328 T&-Civ. App. - Amarillo 1943, writ ref'd);
Attorney General Opinion I:-,1277 (1978). Bleck'a Law Dictionary 1180
(5th ld. 1979) defines "restitution" as the set of making good or
giving equivalent for any loss. dsmage, or injury. Since section
32.41(e) does not provide for “payment in full of the chsck" but.
Instead, provides for "re~ltitutlon," we believe that the legialgture
Intended to give the isauar the opportunity to reimburse the holder
for both the mo u nt of 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 of 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 l party to whom the
diehonored check wee written. We conclude thet the lenguege of
lrticle 9022 expresses en jstention on the pert of the legisleture to
euthorize the charging of a resaoneble processing fee by such sn
w-7. Article 9022 atatee thet the holder of e check or its
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 llao sek whether e civil suit ie the only loge1 recourse of s
holder of l dishonored check or of 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 l check or s collection sgency but is
decormined by the atate':~ prosecuting attorneys and the courts. A
p. 2161
.
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 l processing fee for
s dishonored check 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 of 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
JACKBIGETOWKR
First Assistant Attorney Geuersl
MARYKELLER
Executive Assistant Attornelr General
ROBERTGRAY
Special Assiatsnt Attoruey Gtmersl
RICK GILPIR
Chairman, Opinion Committee
Prepsred by Nancy Sutton
Asaistsnt Attorney General
p. 2162