Perp gets placed on Deferred Adjudication for a Class B Misdemeanor.

Perp falls behind on his CSR and payments.

I file a timely Motion to Adjudicate.

Perp runs out, finishes his CSR, and Perp's mom pays off his remaining balance by giving the County Clerk a check.

Perp shows up to court for the Motion to Adjudicate with proof of CSR hours and receipt from the County Clerk showing that everyhting is paid. As Perp's term of probation has expired, and he has now (apparently) completed everything, I agree to drop the Motion to Adjudicate, and the Judge enters an order terminating his Deferred Adjudication probation.

10 days later, the County Clerk tells me that the check from Perp's mom has been returned NSF.

The County Clerk is sending a standard letter to Perp's mom, telling her to pay up or face a Hot Check case, but what I want to know is, can I get the Judge to reinstate the criminal case against the Perp?

I don't want a new trial, just to undo the dismissal. My best thought was a Motion to Set Aside the Judgment.

Any ideas?

First, why does your clerk accept checks for payment of fines and court costs from defendants. "Defendant" and "convicted of theft by check" should scream no checks. Our policy is cash or cashiers checks.

As to the issue presented in your post, I do not believe that you have any recourse to revive the case.

Finally, as to filing a new case for Theft by Check because of the bounced check to the clerk, I do not believe you can. It sounds like an IBC not a Theft by Check.

Just my 2 cents.

Joel Littlefield
Hunt County

There is an argument that a court has plenary power over its decisions for a period of 30 days (not just to grant a new trial). See Junious, 123 S.W.3d at 417. Thus, I would consider filing a motion for reconsideration, citing the fact that the State's agreement to dismissal of its motion was induced by a mistake of fact. But, the error will have to be corrected within the 30 days (assuming the court wants to re-instate the case).

How about prosecuting mom for securing execution of a document by deception? She issued the check not to obtain goods or services, but to secure the dismissal. Just a thought, but it seems to fit.

quote:

---

Originally posted by Larry L:
How about prosecuting mom for securing execution of a document by deception? She issued the check not to obtain goods or services, but to secure the dismissal. Just a thought, but it seems to fit.

---

I think that is a BIG reach. the bigger problem, as Joel said, is why does your clerk accept checks, especially from someone on probation for a check offense? I have never seen a clerk's office that took a personal check, whether for court costs, fines or even a JP's office for traffic tickets.

Charge mom with IBC, collect the court costs, urge your clerk to change her policy and move on down the road. Also, you could change your COPs to make sure that tbc probationers only pay their fees/fines/costs via MO/CC/Cash.

And even if, if, you were able to resurrect her deferred, you'd still have to overcome an inability to pay defense (if raised) and you'd be trying to impute mom's actions to the defendant.

It seems to me that, assuming you can prove that Mom knew the check was worthless, her conduct reaches right into Section 37.09. Tampering with or Fabricating Physical Evidence. It sounds like she used a document or thing with knowledge of its falsity and with intent to affect the course of the official proceeding.

I know we usually use this statute for dope chewers, but I would be interested to know why it would not apply here.

Greg - now that I'm back in the office and actually looking @ Securing Execution of a document by Deception, it looks like it would be an unnecessary reach, since the theft values apply. I agree with your suggestion -- get the $$, get the policy changed, and move on. While I still think Securing Execution may be a possible charge, it would be much more difficult to prove than the simple IBC.