I need assistance establishing guidelines for filing or declining theft of service charges when there is a late return of rental property. There is a large-equipment rental company in my county that is very aggressive about sending certified mail notice as required by PC Sec. 31.04 and wants to file criminal charges in every delinquency situation to bolster its collection efforts. Generally, there is an advance payment to cover the total cost of the rental, and the equipment is brought back one or more days late. As a policy matter, do you generally file a criminal case only when the rental property is not returned or do you also file it when it is late? Even though I have a hot check division, I hate being a bill collector.

Have you looked into prosecuting the company for usery?

Consider setting a bright line based on the amount of the loss. For example only filing a case if the amount of the loss is a class A misd. or a state jail or whatever you feel proper. Your local business has a legit complaint as their customers have broken the law. However, you will be swamped if you file on everyone who returns a movie from Blockbuster 2 weeks late.

Let's not forget that there has to be evidence of criminal intent. Just because someone fails to pay doesn't mean that there was criminal intent. Failure to pay after getting a demand letter is not necessarily great evidence of criminal intent, no matter what the business wants us to believe.

Rob and I met with the head of the retail rental association a month or two ago. He wants to talk informally with our people at the Elected Conference to find out how they can best help us make their cases.

His association consists of only the large-equipment rental folks, not Blockbuster, et al. He's also aware of our reluctance to get into the bill-collecting business.

I don't know that anything constructive will come out of it, but I guess it can't hurt to talk to the guy (who's name escapes me at the moment) come December.

Every session they push some bill that makes it a crime to owe a bill. They just want their money.

It's a little like the special issue that got passed last session for theft of gas. We are supposed to be making an affirmative finding if the gas was stolen at a convenience store, even though those crimes are Class C misdemeanors most of the time. The industry people didn't really care about the prosecution. They just wanted to be able to put stickers on the gas pumps (saying a DL could be suspended for gas theft).

That sort of manipulation of the Penal Code creates disrespect for the law because it clutters the code and never gets used. The Penal Code should not be a solution for every social problem.

When dealing with these kinds of cases, too, you need to differentiate between a true equipment rental company, as opposed to those rent-to-own places. They are 2 different animals. In my opinion, rent-to-own stores are just a way to charge a usurious interest rate to people with bad credit. I think 9 times out of 10, these situations are civil. And I think if they're going to direct their business at a portion of the market with bad credit, then don't come crying to the DA's office when the people don't pay up. The exception might be where the "renter" says (and I have a case where she says this), "screw y'all, you're not getting your furniture back, and I'm not paying either." I think a true rental equipment company has a legitimate beef if someone doesn't return the equipment at all. But you still need some evidence of intent, because these people always come back and say, "The tiller got stolen out of my truck," or "I lent the backhoe to my friend, and he was supposed to return it." I'm not in favor of filing criminal charges when the people return the equipment, but return it late. How would you ever prove the intent in that situation? And surely, the rental companies have that covered contractually. I have to admit that I'm a little biased in favor of the rental equipment companies (and against rent-to-owns) because my father-in-law owns a rental equipment business.

What criminal intent? This appears to be as close to a �strict liability� crime as you can get! The defendant must hold the property beyond the expiration of the rental period with the intent to avoid payment. Obviously, he has failed to pay or we would not be asked to prosecute. This is my problem with the statute. There is simply a breach of the rental contract, and we are asked to collect the bill!

And therein lies the problem with the statute. The rent to own people have gotten a statute that creates a presumption of criminal intent where none may actually exist. This is why prosecutors must be careful to avoid using the statute to collect bills.

This is a perfect example of when we, as prosecutors, need to exercise our prosecutorial discretion, regardless of whether or not you have a statutory presumption. I disagree that this statute creates a strict liability standard. It is a presumption and nothing more. In some cases, it may not even be a very strong or believable presumption.

I think you have to set some criteria describing the minimum that is required for you to lend your office's good name to the effort. I would suggest that you use a standard set upon the number of days the rental is late rather than one based on value. It is a lot easier to prove intent to avoid payment or to deprive when a lower valued item is weeks or months late than it is to show the same when a higher valued item is a few days late, even if the total loss is greater with the higher valued item. The risk of setting a monetary standard is that the equipment with a higher rental amount may fit your guidelines at a time earlier than you are really comfortable with prosecuting.