I slept through that too. Penal Code 31.06(f)(1) says that theft is presumed if the actor gave a check and then stopped payment. What if the actor had a legitimate beef with the merchant? We can't referee that, can we? What if the actor stopped payment on the check and then tendered a check in a lesser amount which he determined was all he owed? At what point do these stop-payment disputes become civil actions rather than theft by check?

I generally find that stop payments occurs in one of two arenas:

1. Situation where the person holding the bad check is a building contractor and installed a patio, pool, driveway or whatever and the homeowner disputes the quality of work and stops payment.

Unless there is a clear intent to defruad present (i.e. the account was closed 6 months before the check was written or the party never had enough money to pay the agreed upon charge) they are usually returned for a civil suit by the complaining party. I feel that this office is not here to settle cases of implied warranties of good and workmanlike performance.

2. Situation where an individual sells a piece of equipment or vehicle to another individual and the equipment breaks the next day

Generally, unless some type of express warranty is present, we will prosecute these. The thought would be if you buy it, after you've had a chance to inspect, its somewhat of a buyer beware scenario. To the extent that you feel that the goods were misrepresented to you, that is a DTPA civil suit.

[This message was edited by Robert S. DuBoise on 02-03-04 at .]

Thanks Robert. I assume in the last paragraph you meant to say "....we will NOT prosecute these."?