I'm trying to find an offense (other than issuance of a bad check) for a defendant who gave my victim two $100,000 checks written on a non-existent bank account. The check was for existing debt (for what appears to have been a significant sized scam which would be very difficult to prove with what I've got) and no new property or service was contemporaneously exchanged for the check. Oh yeah, the check was post-dated for over a year and tendered with a note saying that it was "to be paid when funds become available."

I don't think theft will work since the check was for an existing debt and the check was post-dated. Forgery??? Any other ideas?

At least it wasn't a third party check.

Forgery might work depending on the representations made. If the victim signed a document, PC Sec. 32.46, Securing Execution of Document by Deception, might apply.

I thought of the same thing you were thinking recently and called my victim. Unfortunately, they did not sign any new paperwork or do anything new as a result of the bogus checks.

On the forgery front, I guess my question is whether the fact that the bank account was bogus is enough to make it a forgery when the defendant signed his own name to the check.

If you look at the definition of "forge" in the penal code, you will see that it can be done in one of three ways-making a writing that purports:
1)to be the act of another..
2)to have been executed at a false time, place, or sequence or
3)to be a copy of an original that does not exist.

I do not think bad checks (of any size) fit into any of the three categories.

Even if you could fit the bad checks into the definition of "forge", what will you do to prove "intent to defraud or harm"? The cases talk about financial harm, not hurt feelings or frustrated expectations. Your complainant was financially harmed last year when he got scammed, not recently when he got the checks.

The bottom line: you are going to have to try to prove the initial scam if you want to prosecute something more severe than the Class C.

For some amusing case law and a good dissent, check out Smith v. State, 379 SW2d 326 (Tex. Crim. App. 1964). Apparently, it isn't a crime to create a fake name. Of course, now you could be prosecuted for theft of identity, but only if you stole a real identity?

Not that you were ever going to intiate a prosecution under 32.41 to begin with, but I do not believe your defendant violated that statute either. That statute seems to refer to a real bank or other drawee and other outstanding checks. If there was no such bank and no such account and no such funds on deposit (ever), you really have to stretch things to make the statutory language fit. Is every piece of paper that looks like a check, really a "check". I sure get a lot of them in mail all the time, but I know ahead of time they are not worth the paper they are written on. The ad industry will be dismayed to learn they have been issuing ISF checks. The "fake" check may help you prove the underlying crime, but it is not the crime.

Here is something we just recently tried:

Defendant stole checks, wrote checks to a person (Victim)and forged that person's endorsement. There was no active account for the stolen checks. The victim had a real account and defendant used account number in cashing the checks. Victim's account was charged back for the bad checks. We charged defendant with forgery.

Gordon, I have to ask. A had check blanks on his prior, now closed, account at Y bank. Def stole A's checks and forged A's name to the face of the check. Def made check payable to B. Def then took completed check to B's bank (Z) and signed B's name on the back and gave B's account number to the teller to encourage the teller to "cash" the check for him. Y returns check to Z as a forgery or just for insufficient funds, and Z in turn charges the check against the "good funds" in B's account and presumably sends the check to B in his statement (to justify the charge against his account)? Guess the case was solved by asking A and B who they knew in common and then showing the teller a photo of the suspect. Amazing.

Martin, pretty much the way it happened. Except, B's account was overdrawn because of the fraudulent checks and B caught discrepancy, (if I remember correctly, she couldn't use her ATM card) that is how the scheme was discovered. B did not know A, but teller remembered defendant because of large amount on checks and ID's defendant. Now we'll see if defendant pleas.

What about:
TPC Section 32.32 - False Statement to Obtain Property or Credit (The two "checks" are material false or misleading written statements to obtain credit...in this case an extension of the due date of an (existing) obligation.)

To fall under the 32.32(a)(3) definition of credit as "extending the due date of an obligation" do you think that I need something in writing specifying an actual due date for the amount of the loaned/scammed amount?

If I understand your situation, the defendant gave the victim a signed, written document (the "check") to keep the victim from collecting on an existing debt...thereby extending the term of the obligation until the post-date on the check. It now appears that the written document is fraudulent. I would argue that the "check" is the written instrument and the post-date establishes the term of the extension. Keep in mind that this is all off the top of my head...I have never prosecuted under this statute. I just think it must be there for a reason.