I'm looking for some guidelines on when what might be considered a mere civil claim for $ damages on work paid for but not completed becomes a theft. I know that the PC requires some evidence of the actors intent/knowledge not to perform other than just the fact that the work was not done.
We have a situation in which a contractor was contracting to do home repairs and construction, getting paid and not completing the work. Most of the work was about 15% done before he would abandon the job, always with promises to return. Most jobs should have been completed in 30 to 60 days but haven't been worked on for 5 or 6 months.
We have 5 customer/victims within the last few months who have paid anywhere from $2,500 to $20,000. Only one job was substantially completed. He is claiming that his wife controlled all the money and when they separated she no longer allowed him money to pay for materials and labor. Bank records do indicate that she controlled all the money and he had no access (likely by his design, but no proof of this). Bank records also indicate that many of the customer's checks were cashed by contractor and not deposited into "wife's" account.
How are ya'll handling these type of cases? Seems like we're likely to see more of this as more guys get laid off out here in the oil fields. As a side note: one of the cutomer/victims lost his job during the course of the "construction". Contractor hired him to work on his own house project for $10/hr, but then never paid him or completed the job. Talk about putting salt in a wound.
If there are multiple victims, and he had already ceased work on one before starting on another (and claiming he didn't have the money to finish the first) I think it certainly demonstrates his intent at the time of taking any subsequent jobs that he would not finish. It's definitely circumstantial - you're not going to have direct evidence of intent (i.e., he's not advertising "incomplete jobs for only $5K down!). You could aggregate the charges. Even if you charge/try the case separately or in counts, the pattern of behavior is still relevant at trial and should be admissible for purposes of intent/plan/preparation, etc.
Good point, Gretchen. Most of the contracts were made and payments received in about a 2 month window (last Oct and Nov.); however, he did contract and get paid as recently as April. He has yet to show up to do any work on the April job. We could aggregate it all and get it all in front of a jury. The aggregated amount should make this a 3rd degree and it looks like, from a quick look at his rap sheet, that we might be able to make this guy punishable as a repeat and habitual.
I asked a similar question locally about a year and a half ago here in hometown Guadalupe County. My question was answered by ACA Britt Eastland. He took the time to share Clinton Cross's article from the TDCAA The Prosecutor, Vol 38, No. 1 focused on offenses satisfying Deceptive Business Practices under the Texas Penal Code. I took that article and ran. It served me well and allowed me to better serve those in my jurisdiction. I had a handful of cases that seemed solely civil but so unfair. They paralleled much of what you discussed in your original post.
With Clinton Cross's explanation of how DBP differ from Theft-related cases, I was able to make new cases that were/are succesfully prosecuted.
Below is a link to that article. Take time to read it and pass it along to your law enforcement. There are many criminal cases out there that are too readily chalked off as "civil."
Also, I found that where I was willing to go the extra step to make a DBP case, our attorneys were equally excited to prosecute them. Kudos to ACA Lauren Lefton for a successful prosecution in one of those cases.
Clinton Cross's article:
Also, El Paso County took steps to build a public database exposing those wanted/convicted of DBP violations. The public has access to, and an opportunity, to avoid the crooks known for DBP's.
Their link follows:
I hope that helps. I never got a chance to throw my gratitude toward Clinton Cross for writing such a good article. Thanks!
Best to you all.
As a matter of fact the most recent case filed as Deceptive Business Practices settled out at the prosecutorial level. The net result for our complainant was $5000.00 paid restitution. Wow!
The complainant called me personally and was so appreciative of a job well-done. That case was a good hit for our sheriff's office, the complainant, and our near-and-dear local county attorney's office prosecutors who edu-ma-cated me on this offense. Great job to everyone involved in seeing this case through!
Why do I get excited about this? It comes back to serving the folks who are wronged. This was a case where it was thrice slammed as a civil matter but reopened in the wake of Clinton Cross's TDCAA article posted earlier in this stream. That's what it's all about--doing the right thing.
(I took a breath and will say good day for now.)
I'm a commercial litigation attorney, but I worked for 22 years in law enforcement before that (I really wanted to be a prosecutor, but I got into the law a little late in the game.....). I do a lot of construction litigation relating to unpaid subcontractors and thought you and the other TDCAA folks might find this obscure statute of use in certain "shady contractor" situations.
In the civil world, what we see over and over is the general contractor ("GC") who contracts with a property owner, then subcontracts out certain trades (HVAC, roofing, flooring, etc.) and then never pays his subcontractors even though the property owners have paid the GC for all the work. Sometimes these guys are just horrible businessmen - others are flat out thieves who string along unsuspecting subs (usually mom and pop operations) until the sub has completed all the work and then the GC just walks away with the money. Typically, we'll file a mechanic's lien on the property and sue the GC for breach of contract and also a civil trust fund violation which is provided for under Chapter 162 of the Texas Property Code.
That same chapter also provides for a criminal offense of "Misapplication of Trust Funds". In short, a GC who exercises control over construction payments is a trustee of those funds, and the funds themselves are trust funds. If the contractor diverts or witholds the funds, the act is a criminal offense. Diversion of a mere $500.00 with intent to defraud is a Felony3.
I've tried to refer the "really bad" cases to DA's offices in the past with little success. There are some affirmative defenses that may make prosecution difficult, but, in the right case with the right facts, certainly not impossible.
In the case you mention, because it is your property owner who was defrauded, the trust fund offense probably wouldn't work (although, if the wife, as an agent of the contractor was diverting the construction payments, you might have an offense against her.....?). However, I agree with the the other posters - if you have repeated instances of his bad conduct, that could establish that he had no intent to perform the work at the time he took the money. No intent to perform equals deception to the homeowner, which renders the homeowner's consent in making the payment non-effective. There's your theft.
My brother has been the victim of a contractor of this sort "Cypress Point Industries, LLC". After looking on YELP I see that there are about 5 others who he has done this to over the last two years.
The contractor took $19,000 from him. Yelp does not disclose amounts but one could easily assume that it was in the thousands as well. What law would apply in this case and is it easily filed in criminal court with out an attorney?
Welcome to the TDCAA Bulletin Boards. The discussions in these user forums are for the benefit of prosecutors and their staff members. We welcome relevant and appropriate input from other members of the criminal justice and government lawyer community, but anonymous posting is not permitted. The opinions expressed on this forum are those of the authors and do not necessarily reflect those of TDCAA, its staff, or any other member of the association. These forums are NOT a source of legal advice for citizens. Call the State Bar of Texas (800/204-2222) for information on seeking legal advice.
Our office prosecutes these under the Misapplication of Fiduciary Property statute.
For home repairs and renovation, which I think in the long run you will need this. Try Caldwell store, for materials like doors, which is the most part of the house that easily breaks. You can also get some tips from team of construction experts.
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