I am having a brain lock. I am dong intake on a case where the defendant went to a local tool store and told the store he had permission to purchase items on his brother's store charge account. The store charged his brother's account. The reality is his brother never gave him permission.
The defendant did not produce a credit card or even give a credit card number. This case does not involve a typical credit card. This case involves a local store charge account. So is this credit card abuse?
I am thinking it is not. If I am correct, is it theft? If it is theft, who is my victim? Is it the store and the stolen items are the tools? Or is it the defendant's brother and the stolen item is currency?
Did the defendant sign something to verify the 'purchase'? Is there a writing/bill/invoice with the defendant's signature?
32.21 b) & d) SJF if the writing purports to be authorization to debit an account at a financial institution.
Otherwise, I'd look at theft by deception (victim is store).
Oh, or 32.32 a) 2) furnishing property. Then go by the value ladder for degree of felony.
I think a theft charge with the store clerk alleged as the owner.
I'd go with fraudulent use of identifying information. It's a good catchall.
Why not just charge straight theft? He recieved the property after deceiving the owner.
Call me hardnosed, but I always prefer the fraudulent use felony to the theft misdemeanor.
Look at 32.31(a)(2):
"Credit card" means an identification card, plate, coupon, book, number, or any other device authorizing a designated person or bearer to obtain property or services on credit.
While the term "device" is not defined, I would suggest that it is not limited to some physical item which may be presented (except in cases where the allegation is the possession of the device).
Webster's, in fact, defines "device" this way:
1 : something devised or contrived: as a (1) : PLAN, PROCEDURE, TECHNIQUE (2) : a scheme to deceive : STRATAGEM, TRICK b : something fanciful, elaborate, or intricate in design c : something (as a figure of speech) in a literary work designed to achieve a particular artistic effect d archaic : MASQUE, SPECTACLE e : a conventional stage practice or means (as a stage whisper) used to achieve a particular dramatic effect f : a piece of equipment or a mechanism designed to serve a special purpose or perform a special function
Under this definition, the account number or whatever identifying information that was used, would qualify as a "number" or "other device" used to obtain property or service on credit.
I have filed just such a credit card abuse case in the past, and see no real distinction between a case like yours, and a case in which someone writes down or memorizes my credit card information and uses it over the phone or the internet without having physical possession of the card. In my opinion, the fact that the tool store may not issue a plastic card does not mean that they have not created a "credit card" under the definition provided when they established the credit account with your victim, assuming they had some sort of official business practice relating to such credit accounts.
While I agree that there are other ways to file the case, I also think that credit card abuse fits the facts.
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