HBA-MM C.S.H.B. 2190 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2190
By: Hinojosa
Criminal Jurisprudence
4/13/1999
Committee Report (Substituted)

BACKGROUND AND PURPOSE 

In today's market place where commissioned agents and buyers
representatives are frequently used to inspect, select, order and take
delivery of products, it is not uncommon for a product to be delivered to
the purchaser before actual receipt of the payment.  Currently, a
presumption of intent to steal is created when a defendant passes a check
or similar sight order for the payment of money, simultaneously obtains the
property, and at that time the defendant does not have sufficient funds for
payment in full in the bank.  However, the courts have interpreted the
penal code to require that the check to be given before the exchange of
property or services.   Cortez v.  State, 582 S.W. 2d 119, (Tx.Crim.App.
1979).  The recipient of the dishonored check must prove intent to defraud
without the benefit of the presumption in those cases where the check is
issued after the delivery of goods or services. 

C.S.H.B. 2190 allows the issuance of a check or similar sight order with
insufficient funds to be used as prima facie evidence of theft in the case
when the check or similar sight order is issued within seven days after
obtaining the property, rather than only when the instrument and property
are simultaneously exchanged. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 31.06 (a), Penal Code, to allow the issuance of
a check or similar sight order with insufficient funds to be used as prima
facie evidence of theft in the case when the check or similar sight order
is issued not later than seven days after obtaining the property, rather
than only when the instrument and property are simultaneously exchanged. 

SECTION 2. Effective date: September 1, 1999.
                      Makes application of this Act prospective.

SECTION 3.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2190 modifies the original in SECTION 1 by amending Section
31.06(a), Penal Code, rather than adding Subsection (g).  The substitute
allows the issuance of a check or similar sight order with insufficient
funds to be used as prima facie evidence of theft in the case when the
check or similar sight order is issued not later than seven days after
obtaining the property, rather than only when the instrument and property
are simultaneously exchanged.  The original bill created a similar
presumption against a person who obtains property by promising the delivery
of a check or similar sight order for the payment of money, if the person
fails to deliver the check or order within seven days of obtaining the
property. 

The substitute modifies the original by moving the effective date from
SECTION 3 of the original to SECTION 2 of the substitute. 

SECTION 4 (Emergency clause) of the original is redesignated as SECTION 3
of the substitute.