A major jurisdiction of our court is the criminal act of Issuance of Bad Checks (Hot Checks). Each year, many defective checks are written, and this criminal action has a significant negative impact on the lives and businesses of our community.

There are essentially two situations involving the issuing of a bad check which are punishable by the law.

1. Issuance of a Bad Check
   If a person issues or passes a check knowing that they did not have sufficient funds on deposit with the bank to cover the check an any other check that was outstanding at the time the check was issued.
2. Theft by Check
   n general, it is a theft for a person to take property from its owner by issuing or passing a check when that person knew or should have known that there were not sufficient funds on deposit with the bank for the payment in full of the check as well as all of the other checks that the person had outstanding at the time. Theft by check is a Class C misdemeanor if the property stolen is valued at less than $20.

Presumption of the Law

The law presumes that the either the person knew that the check was bad or that the check writer intended to steal the property, if:

• the check writer had no account with the bank at the time of issuing the check, or
• the check writer failed to pay the check within ten (10) days after receiving notice that the check was
• returned by the bank for "insufficient funds."

Notice that payment was refused by the bank for insufficient funds may be actual notice, or notice in writing, sent by registered or certified mail with return receipt requested, or by telegram with report of delivery requested, addressed to the person who issued the check at

• the address shown on the check,
• the address shown on the records of the bank, or
• the address shown on the records of the person whom the check was given.

Punishment

A Class C misdemeanor is punishable by a fine not to exceed $500.00

Filing the Complaint

To prosecute the writer of a bad check:

• a Complaint may be made, if appropriate, in the Justice Court in the Justice of the Peace precinct where the check was issued, or in which the check writer resides. The complaint must be accompanied by an Affidavit Stating Probable Cause. The affidavit is a written statement containing enough facts about the transaction to cause the magistrate to believe that the check writer has indeed issued a bad check, and is necessary to allow the magistrate to issue a warrant ordering the arrest of the check writer.
• The original check, the notice to the check writer of the bank’s refusal to pay, and the registered or certified mail receipt showing notice given, should be provided at the time of filing the complaint. A witness who is able to identify the check writer must be available for trial.

Issuance of Arrest Warrant or Other Notice

When a sufficient complaint has been filed, the court will notify the check writer of the filing of the charge either by issuing a summons or an arrest warrant. In some instances, the court may issue a notice of the filing of the charge and providing an opportunity to appear and answer.

If a warrant is issued, you may avoid arrest by:

Posting Bond

You may post bond at the Justice Court in which your case if filed. Bond may be in the form of a Surety Bond or a Cash Bond. When posting a cash bond, you must tender cash in the form of a cashier’s check or money order, payable to the Justice Court, in the amount of bond.

After posting bail, you will be notified on the date and time you are to appear in court, it is imperative that you keep the court notified of any address changes.

Paying the Fine at the Court

You may pay the acceptable fine either (i) in person at the Justice Court in which your case is filed or (ii) by mailing the fine to the Justice Court. Fines may be paid by cashier’s check or money order payable to the Justice of the Peace. Fines may also be paid in cash or by credit card at the office of the Justice of the Peace. If you pay the fine, no further court appearance is necessary.

You will remain subject to arrest until you post bond or otherwise dispose of your case. If you are arrested, you will be required to give bond to secure your release from custody and appear in court at a later time to answer for this charge.

As a Defendant

If you are accused of the offenses of “issuance of bad check” or “theft by check,” you have certain rights.

• You have the right to see the complaint or citation that has been filed with the court.
• You have the right to a trial by jury, but you may waive the right to a trial by jury and be tried by the court.
• You have the right to be represented by any attorney you may choose to employ. You are not required to be represented by an attorney. An attorney may make an appearance on your behalf.
• You have the right to remain silent and not to give evidence against yourself.
• In assessing a fine, the court may consider mitigating circumstance, for example, that restitution was made to the holder of the check. Check writers are encouraged to furnish original receipts for restitution that has been made. Upon request, the court may reschedule your case to allow you an opportunity to make restitution prior to sentencing.

How to Plead

• If you plead not guilty, your case will be set for pretrial. You may waive your right to a trial by jury and have the case heard by the court. At your request, the court will subpoena a witness on your behalf, but you must furnish the court with the name, address, and telephone number of each witness prior to trial. You will be required to attend a pre-trial hearing.
• If you refuse to enter a plea, the court will enter a plea of not guilty for you, and your case will be set for a jury trial unless you waive that right.
• If you plead guilty or no contest, the court will find you guilty and assess a fine as punishment. A plea of no contest has the same result as a plea of guilty, but it may not be used against you in any civil proceeding that might arise from the incident leading to your arrest.
• If you are pleading guilty or no contest, you may present any evidence or documents to the court in connection with the offense and you may explain any mitigating circumstances that may affect punishment.
• If you are unsure about how to plead, do not hesitate to enter a plea of not guilty.
• The court may be required to provide you certain notices, and it is your responsibility to notify the court of any change of address.

If You Do Not Want to Appear in Court

Pay the Acceptable Fine in Person or by Mail

• You have the option of paying your fine by mail or by paying in person at the Justice Court as directed on your citation or summons.
• Before the time you must appear in court, mail or bring to the court a Plea Form for Criminal Cases together with your payment of the acceptable fine. The acceptable fine amount will include the court costs applicable to the offense with which you are charged.
• If you are paying by mail, you must pay by cashier’s check or money order, payable to the Smith County Justice Court.
• If you are paying in person, you may pay your fine in cash, by cashier’s, check or money order, or by credit card. Payment of the acceptable fine constitutes a finding of guilt in open court as though you had entered a plea of no contest.

Plea of Not Guilty by Mail

• Before the time you must appear in court, you may mail or bring to the court a plea of not guilty.
• The court will set your case for a jury trial. If you notify the court that you waive your right to a jury trial, your case will be set for a trial to the court.
• If you are paying by mail, you must pay by cashier’s check or money order, payable to the Smith County Justice Court.
• You may be required to attend a pre-trial conference.

Failure to Appear on Court date

If you fail to appear in court as required, the court may issue a warrant for your arrest. The issuance of a warrant carries additional fees. If a warrant is issued, you may avoid arrest by:

Posting Bond

• You may post bond at the Justice Court in which your case is filed.
• Bond may be in the form of a Surety Bond or a Cash Bond. When posting a cash bond, you must tender cash in the form of a cashier’s check or money order, payable to the Justice Court, in the amount of bail.
• A magistrate must consider allowing you a personal bond.
• After posting bail, you will be notified of the date and time you are to appear in court.

Paying the Fine at the Court

You may pay the acceptable fine either.

• in person at the Justice Court in which your case is filed or
• by mailing the fine to the Justice Court.
• Fines may be paid by cashier’s check or money order payable to the Justice of the Peace.
• If you pay the fine, no further court appearance is necessary.

NOTE: You will remain subject to arrest until you post bail or otherwise dispose of your case. If you are arrested, you will be required to give bail to secure your release from custody and appear in court at a later time to answer for this charge.

Convictions 

• If you plead guilty or no contest, or if you are found guilty after trial, you will be assessed a fine as punishment. You will also be responsible for court costs. Full payment of the fine and costs will satisfy your obligations in connection with the charge filed against you
• If you are not able to pay the fine and court costs in full, the court may consider allowing you to pay the fine and costs at a later date or in instalments.
• If you need to make arrangements for more time to pay your fine and court costs, you will need to make that request to the court. If you request to pay over a period of more than thirty (30) days, a $25.00 Time Payment Fee will be assessed. This fee is required by Article 103.033 of the Texas Code of Criminal Procedure
• If the fine and costs are more than sixty (60) days past due, the court may refer your case to a private attorney or vendor for collection services. A collection fee equal to 30% of the amount due will be added. This fee is allowed under Article 103.0331 of the Texas Code of Criminal Procedure
• If you intentionally fail to make a good faith effort to discharge the judgment, you may be committed to the Smith County Jail until the judgment is discharged by serving a sufficient length of time to satisfy the fine and costs owed.
• If you fail to pay the fine and costs as directed, the court may notify the Department of Public Safety to deny the renewal of your driver’s license. You will be required to pay an administrative fee of $30 prior to the renewal of your license. This fee is required by Section 706.006 of the Texas Transportation Code.

New Trial and Appeal

New Trial

• A motion for new trial must be made within one (1) day after the rendition of the judgment in your case. A motion for new trial cannot be made afterward.
• The judge has ten (10) days after the date the judgment was entered within which to grant a new trial. If a motion for new trial is not granted before the eleventh (11th) day after the date the judgment was entered, the motion for new trial is considered denied.

Appeal

• An appeal from a judgment of a Smith County Justice Court is heard by a Smith County Criminal Court at Law.
• Should you wish to appeal the decision in your case, you must file an Appeal Bond in the amount of two (2) times the amount of the fine and costs. The bond is filed with the Justice Court in which your case was filed, and must be filed not later than the tenth (10th) day after the date the judgment was entered.
• When the appeal bond has been timely filed, all proceedings in the Justice Court will cease.

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