Here is the situation:

We have a guy who paid rent to his landlord and the check bounced. Assume that the defendant knew that he had insufficient funds to cover the check.

Is this an offense of either theft by check, theft of service, either, or both? If it is theft by check, when is the offense complete, i.e. is the offense complete when the check is refused by the bank for payment, or does it continue throughout the month in which the tenant is in possession of the rental property.

How would you charge it?

Thanks for your help.

I wouldn't charge it. It is a civil matter to be resolved between parties to a contract, in justice court. The contract is the rental agreement or lease.

In these theft by check cases, whether the defendant is thought to have stolen property or services, the question is always the same. Can you prove that the defendant, at the time he accepted the property or services, intended not to pay for the property or services?

In other words, don't get hung up on the check. The check is merely a commercially acceptable way to pay for property or services, but it doesn't necessarily tell you anything about the defendant's intent at the time he accepted the property or services.

Of course, if a defendant moves into an apartment by giving the landlord a worthless check, and the defendant's bank account shows the defendant has never had that amount of money in his account, then you begin to be able to draw an inference from that event that the defendant didn't intend to pay.

But, if the defendant moves into an apartment and properly pays rent for several months and then writes a hot check, all you really know is that the defendant was unable to pay a month's rent. The hot check was no worse than if the defendant had gone to the landlord and said, I can't pay rent for a couple of weeks. While that might justify the landlord kicking out the renter in a civil suit, it doesn't provide particularly strong evidence of a criminal intent to steal.

Just because there is a civil remedy is NOT a reason to refuse to file the criminal case. Would you recommend not filing this case if the check had been to Wal-Mart for $450.00? After all, they have a civil remedy - they could sue in Justice Court. How about refusing to file a murder case because the surviving spouse has a civil remedy (wrongful death suit)? You should ignore that fact that there is a civil remedy (and in the case of the bad check for rent, a civil remedy is probably worthless anyway), and look at the criminal offense, then follow your oath to seek justice, which does not include "except when there is a civil remedy".

No one said not to file it solely because there is a civil remedy. They simply encouraged the victim, in light of the lack of evidence of criminal intent, to pursue a civil remedy.

When there is a murder, there is little dispute that there was criminal conduct. When an otherwise legitimate business transaction takes place, it takes different proof to show that the transaction was criminal. In the absence of convincing evidence of criminal intent, the only remedy remaining is a civil lawsuit to recover the money.

Sometimes, a businessman wants a prosecutor to use the power of a criminal case to extract the money that would only be forthcoming after a civil suit. Prosecutors must be careful to avoid being used in that mannner, so there must be convincing evidence of criminal intent, which is what separates civil from criminal.

What about filing Issuance of a Bad Check, a Class C misdemeanor?

The question is why are landlords treated differently in that they only have a civil remedy and/or the choice to file criminal charges amounting only to a Class C. If a defendant knew that he or she was passing a check with the knowledge that he/she did not have the amount in the bank, why should landlords not be able to press charges like a commercial establishment would be able to do?

The landlord distinction arises when several valid checks for rent are received and then one bounces. Is there proof of criminal intent at the time the apartment was rented? This is where a Class C Issuance of a Bad Check could be filed.

If the first rent check bounced, then I think a good case could be made for criminal intent and a theft of service case could be made.

The larger question is whether prosecutors have sufficent resources to handle late rent situations when a landlord has not taken the opportunity to do a credit check or call the bank to verify the check before renting the apartment.

A theft by check case is a theft by deception in which the deception has to do with whether a check is good or not. If the person writing the check knows it is no good and pretends that it is good,then we have deception(bearing in mind that we are not free to use the Webster's definition of "deception"-the term is defined at 31.01(1) of the penal code and has a materiality component).

Once we are satisfied that there has been deception, we have to see whether the deception caused the complainant to part with any goods or services. In John's example involving the first month's rent, it is pretty clear that the rental services were obtained by the deception.

In John's second example, we have a landlord who is deceived for a week or so while he is under the mistaken impression that the check is good. To make a theft of services case, we have to quantify the additional services, if any, that the renter got because of passing the bad check. Usually, we are unable to do so.

I can imagine a landlord who can truthfully testify that he had sent his "pay rent or quit" notice and was on the point of going to the JP to file his properly-prepared eviction lawsuit when the renter stopped by with the check for the rent and caused the landlord to stop the proceedings.

I can also imagine the landlord testifying that as soon as he received notice that the check was being returned, he re-commenced proceedings and evicted the renter. In such a case, we could file a theft case for the pro-rata daily rental multiplied by the number of days delay the renter bought with the bad check.

I can imagine that case, but I have never seen it. Usually what can be proven is that a check was given, and it was bad. If we can prove no more than that, it is irresponsible to file more than that. Issuance of Bad Check would be the appropriate charge.

I have had these questions too. I have also wondered assuming the tenant was already renting the premises and pays with a hot check. What has the landlord really lost because if the tenant did not pay he could not be evicted immediately anyway? He would have lost a little time before starting eviction proceedings. My office handles them like regular checks but if it came to a trial I would look very close at the facts and probably go with issuing a worthless check. Usually they have other checks we can proceed on anyway and order restitution for all the checks.

I have generally declined to prosecute although I would leave open the possibility under some facts. However, every rent check case I have seen involved a lease for a period of months with an agreement to pay monthly. I have always construed this as a contract with an extension of a form of credit and no contemporaneous exchange for property or service. This, I believe to be civil. In short, I don't treat them as typical theft by check cases. This does not foreclose the possibility of prosecuting under more general theft by deception if the facts are present to do so.

A large portion of Americans live paycheck-to-paycheck. I would assume many also are in the habit of 'floating' checks. With the new 'Check 21', much of that float time is gone.

If this was a one time deal, the renter made an error, why would one even consider wasting prosecutorial resources on the matter? Advice the landlord to only accept money orders and move on.

I have almost always filed issuing bad check, the class C misdemeanor, on rent checks, second party checks, checks to pay an open account, and any sort of ISF check with a "problem". Our JP does a pretty good job on them? I think most defendants don't make all the distinctions (assuming they are half way honest) between justice court and county court. They just know they got caught and have to go to the court house and see some judge about it. I have filed up to $2,000.00 on issuing bad check and got it collected.
Remember your job is to see that justice gets done. In the mind of the payee of the check that simply means one thing-----THE MONEY.
Good luck