Tax free time again!

August 5, 2014

It’s hard to believe that the annual general merchandise Tax Free weekend is nearly upon us. Stores are running ads for ‚“back to school” clothing and equipment, and even those without children to clothe and equip are planning shopping sprees for the coming days. Before racing out to take advantage of these sales, however, it is well worth the time involved to balance the check book, and double check the outstanding bills. Back to School too often is the fore runner of a hot check special, ‚“Back to Court”..
Writing a bad check is illegal. Texas, as well as most other states in the Union, considers the writing of a bad check, whether insufficient funds, closed account, or for some other reason, to be theft. The check writer is presumed to be capable of keeping track of the balance in the account, and not to exceed it. While many banks offer ‚“protection” from overdrafts as one of their services, a failure of the bank to cover the check is not a defense to the criminal case. Merchants and prosecutors send notices to the address listed on the case of the check; failure to receive these notices is also not a defense. There was a time when many merchants ran checks through the bank multiple times, or even attempted to contact the writer by telephone. The law does not require this courtesy, and a failure to do it is not a defense to the crime.
Thankfully, many merchants and most individuals are not familiar with the process for handling worthless checks. Obviously, the merchant is not aware that the piece of paper being offered in exchange for merchandise is worthless. It is deposited with the rest of the monies collected during the day, and makes its way electronically to the writer’s bank. There was a time when a deposit could ‚“beat the check” to the bank. People counted on checks taking a couple of days to clear, then believed that they would be able to make a deposit before the check was debited from the account. Banks today use electronics to transfer funds and information; debits are made nearly before the ink is dry on the paper.
When the bank is notified that the check will not clear, a facsimile is returned to the merchant. If funds had been credited to the merchant’s account, they are removed. At that point, most financial institutions wash their hands of the matter, and collection is the responsibility of the merchant. Opening the morning mail that day does not make the merchant any happier.
Some businesses turn the check over to a collection agency, others prefer to accomplish the paperwork themselves. Aside from whatever their book keepers require, a letter needs to be prepared and sent by mail to the check writer at the address shown on the check. It is no longer sent certified, but is simply a first class letter which, sadly, many people choose not to heed. They lose the opportunity to take care of the matter with the merchant and to avoid the time limits and extra charges that are applied when the matter is brought to the courthouse.
The merchant is only required to wait ten days from the receipt of the letter before bringing the check to the County Attorney’s Office. At that point, different counties handle the matter in varying ways. Because each prosecutor is autonomous, the policies of one office will not dictate procedures in another. It is not at all uncommon for check writers to have committed their offenses in a multitude of counties, then to complain because Nolan County will not manage the matter the same way as another. Where one may be disposed to dismiss upon payment of restitution, another will not. The remainder of this article will explain the process as it takes place in the Nolan County Attorney’s Office.
Once a check comes to the County Attorney from a merchant, they will no longer accept restitution from the check writer. At that point, the writer owes the face value of the check, the $30 merchant fee allowed by law, as well as a fee for collection based on the amount of the check. The writer is also in danger of having a warrant issued for his or her arrest, based on the check. The only way to insure that the warrant will not be issued is to physically receive the check.
When checks are turned in to the prosecutor’s office, a first class letter is sent to the writer. Again, it is normally sent to the address on the check. Merchants vary in the speed with which checks are brought it -- and they have up to two years from the date on the check -- so we verify the address on the check with the one(s) in our computer. The first class letter is sent to the most recent address possible. It gives the writer ten days to respond before charges will be filed. While we do not accept partial payment on any check or its associated fees, we have, at times, allowed people with multiple checks to pay them one at a time. They are required to meet a strict time schedule, and failure to pay a check when it is due results in the issuance of a warrant.
Until an arrest warrant has been issued, the check writer may come to the office or mail in the restitution, and leave in peace. If the person comes in or includes a self addressed, stamped envelope with the payment, the original check will be returned to them. The only penalty at this point is the merchant’s fee and the state fee; there is no fine or costs of court.
Once a warrant has been issued, it is extremely rare for a check writer in Nolan County to get off with just paying the restitution. After all, there should be some penalty for requiring the extra step in the process. An arrest warrant really has no ‚“shelf life,” -- it stays active until served. Once served, the person in booked into jail and must either pay a bond fee to insure appearance at court or wait for the weekly‚ “Jail Call” docket. Most check writers who choose to travel this far into the process find themselves paying a fine of $500, court costs of $294, probation fees of $55 per month for twelve months -- and restitution for the checks, including the face value and fees. While on probation, the writer is not allowed to sign on a checking account, whether personal or for business purposes.
Local merchants would be quick to attest that persons passing bad checks are stealing, not only from them but also from their employees. Profit margins are not so great, once overhead, taxes and wages are considered, that any of them can afford the loss. Before deciding that there is nothing wrong with writing that check, whatever your circumstance, remember the hourly employee who is trying to support a family with a job from that business. Your actions, in addition to placing you in danger of going to jail, jeopardize that person’s job.

Lisa Peterson is the County Attorney for Nolan County. Comments about this column may be e-mailed to editor@sweetwaterreporter.com.

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