Received hot checks from a merchant for processing and am getting ready to send the courtesy letter when I receive a notice of ch. 13 bankruptcy for the potential defendant. It was my understanding that the filing does not affect the criminal proceeding but I have not yet filed an information. Any thoughts? My bankruptcy knowledge is slim at best.
Thanks

I share your theory that the less you know about bankruptcy (like tax law), the better your quality of life. Unfortunately, we, too, have to deal with some of the same issues. Your general impression is correct; criminal penalties and proceedings are outside the scope of discharge, and the stay does not affect your ability to prosecute the underlying criminal offense. However, if -- like us -- your usual M.O. in resolving check cases is to reach an agreement with the defendant to pay out the amount of the check plus the fees, costs and other assessments, the enforceability of that contract may become a more problematic issue since the Fifth Circuit has been equivocal on how bankruptcy impacts such arrangements. The safest course may be to proceed with standard prosecution. Almost assuredly, you'll hear from the bankruptcy lawyer. The situation can be simply posed to him; your client can go to jail or he can pay restitution, costs, fees, etc. Most lawyers who want to hang on to their ticket will not advise a client to risk going to jail for the sake of the ascendancy of bankruptcy law over Texas penal law. But, then again, you may have to wind up sending the bankrupt to jail if the bankruptcy lawyer simply chooses not to deal with the situation.

The Court of Criminal Appeals has clearly held that federal bankruptcy does not discharge an order for restitution in a state court. Cabla v. State, 6 SW3d 543. Crimes are not erased by civil proceedings.

Our standard procedure upon receiving a bankruptcy notice involving a hot check writer is to immediately file criminal cases on all checks. We don't really have any choice if there is not already a court order of some sort.

If notice of the bankruptcy is received prior to the courtesy letter going out, does the stay prevent you from sending the letter? Do you go directly to filing a case and issue a warrant?

My office's courtesy letter goes out before charges are filed. We ask for restitution or any exculpatory (or otherwise) explanation the prospective defendant has for bouncing the check.

If we somehow find out that there is a bankruptcy filed, we don't ask for the restitution at that point. Instead we ask only for the explanation.

If I am going to ask for restitution for criminal conduct in the face of a bankruptcy, I am more comfortable doing so after a judge has made at least a finding that there is probable cause to believe the debt was incurred via a theft.

There is at least one interesting case in the area(in addition to the one John cited). I will add the cite to the message string when I find it.

Hello,Due to tremendous difficulties I have suffered in the past few years, I am thinking of filing for bankruptcy. I simply cannot afford a Bankruptcy Lawyer, so I am probably going to have to do it myself. My friend will help me, although he's a medical school graduate instead of a law school graduate. He's researching everything thoroughly right now. He plans to be my "lawyer." I'm just nervous that if we do something wrong, my petition for bankruptcy will be denied.
Has anyone here filed for Chapter 7 without a lawyer?