                             The Attorney          General          of Texas
                                              April 9, 1986
JIM ilATTOX
Attorney Qeneral


~~9nwCo~Sulldl~              Rowreblo   George Pierce                    opinloo No.   m-472
                             cheirmen
Ai&.    TX. 78711. 2545
                             Urban Affeirs Comlttee                      RO:     Effect of failure to pay
512l4752501
Telex 9101074.1557           Texas House of Rep~rrrsentstives            a processing fee authorized by
T.l.coplsr 5121*7M255        P. 0. Box 2910                              article     9022, V.T.C.S.,  for
                             Awtin, Taxes    78’169                      dishonored checks
714 JaCkMn. Suile 700
OallaI. TX. 75202-4509       Dear Rapresentativs Pierce:
214i?426ou
                                  You esk sevccol questions relating to a processing fee by the
                             holder of s dishmored check. Article ,9022. V.T.C.S.,      which is a
4524 AIbwt4 Av*., SUN4 150   civil stetute enactad by the legisleturc in 1983, provides that
El Paso, TX. 799052792
QlW3454
                                           (e)  The holder of s check or its assignee,
                                        sgmt .   representative.     or   w   other person
cr-rexu.       suite 700                retained by the holder to seek collection of the
I    ~ton. l7.. 77002-3111              face vs!.ue of the dishonored check on return of
7xX2235559                              the check. to the holder following its dishonor by
                                        a peyor   m.sy chsrge    the  drawer or endorser a
905 Broadway, Suite 312                 ressona~le processing fee, which shall not exceed
Lubaock lx. 79401-3479                  $15.
595n47.5225
                                            (b)  Nothing  herein  shell  be constmed as
4309 N. Tenth. Suite 8                  affecting, sny right or remedy to which the holder
YcAllm. TX. 7S501.1955                  of l check mey be entitled       under any rule,
512s524547                              regulst~.cm. written contract, judicial  decision,
                                        or other statute.
200 MaIn Plaza. Suite 400
Ssn Antonlo. TX. 752952797         You ask whether a persoo would be innocent of e theft by check
512l225-4191                 cherge if the person offered the holder of a dishonored check a cash
                             payment in the amount of the check but refused to pay the processing
                             fee authorized b:r erticle   9022. An offer to pay the amount of a
An Eqwl Opportunllyl
Attlmutive Action Employer
                             dishonored check does not necessarily preclude e conviction of theft
                             or of Issuance of a bed check under the Penal Code. See Penal Code
                             131.03 (theft);  jI31.04 (theft of service);  132.41 (is~nce    of bad
                             check. which mey be e lesser offenee of theft).     Peilure to pay the
                             amnunt of the ckeck may give rice to the l     vldentlary presumptions
                             establiehed by Thea Penal Code.    It is our opinion. however, that
                             refusal to pay a processing fee is not en element of the offenses of
                             theft or lssusncc of s bad check and neither does such refusal trigger
                             the evidentiary presumptions.




                                                        p.   2158
Bonoreble George Pierco   - l’ego 2 .(JX-472)




     The proceasing  foe authorized by article 9022 is e civil natter
between the iaauer end the holder of l dishonored check. Article 9022
was lnected to reaolve uncllrteinty la to the velidlty of feee iopoaed
for proceaeing dishonored checke, which were conridered pert o f l
contract between the issuer end the holder.    See Bill Anelyaie to S.B.
lo. 921, prepered for the lgouro Cowittu      ~Buainere   end Cowerce.
filed in Bill File to H.B. No. 921, Legirletive Reference Library.     We
do not bolievr that such 41procosaing   fee becones pert of the mount
of the check. Hence, we ctmlcludc thet failure to pey a proceesing fee
authorized by erticle 9022 is not the feilure to pey the holder within
10 deya of receipt of nol:!lce thet is requkod for the l      vldentiery
prealmptiona established bg section 31.06(e) and aectlon 32.41(b) of
the Penal Cod..

       Receipt of property endi proof of its velue sre necessary elements
In the offense of theft wder articles       31.03 and 31.04 of the Penal
Code but ere not required for proof of the offense of issuance of e
bed check under section 32,4,1 of the Penal Code. Section 31.b6 of the
Penel Code, entitled “Preaualptlon for Theft by Check,” does not create
e seperate,   epeciflc offen:le, end l person la not prosecuted for theft
by check under section 31.136. When the defendant obtaine property by
issuing e check without sufficient      funds, section 31.06 provides en
evidentiery presumption of intent to deprive the ovner of property
which is ancillary to the (;amerel theft atetutea.    See Christiansen 0.
State, 575 S.U.2d 42, 45 (l:aa. Criol. App. 1979); Suzie    v. State, 631
s.u.ld   569, 571 (Tax. App, - El Psso 1982. no writ).      Section 31.06
provides that if e person abteins property or services by issuing or
passing e check when the issuer did not heve sufficient      funds in the
benk for payment in full ot the check, the person’s intent to deprive
the owner ,of property under section 31.03 or to ovoid payment for
remices under section 31.04, lo presumed if

             (1) he bed no eccount with the benk or other
          drawee et the time he issued the check or order;
          or

              (2)  psyuent wea refused by the bsnk or other
          drewee for leek of funds or insufficient  funds, on
          prea.entstion wit!rln 30 daye efter issue, end the
          issuer failed tcl pey the holder in full within
          10 daye efter rt~:eivtng notice of that    refusal.
          (E&eels    edded) a_

     A similar evidentiery presumption of knovledge of insufficient
funde ia provided by eectiun 32.41 of the Penel Code for the offense
of ieauing  or peasing e bad   check. Under section 32.41, e peraon
commits en offenee if he issues or passes e check for the payment of
money knowing thet the issuer does not heve sufficient      funds on




                                     p. 2159
Ronoreble George Pierce   - Pepa 3 (Jn-472)




dapoelt with the benk for thr psyment in full    of the check.    Subaec.
(a).  Subrection (b) states t:het

             Thie section does wt     prevent the proeecutlon
          fr o lm
                atebllahi.ng the required knowledge by direct
          evidence; however, for purposes of thie l   ec tio n,
          th eissuer’s kuowladge of Insufficient fundo is
          preeueed (except Lmt the case of e poet&ted    check
          or order) if:

                (1) he had no eccount with the      bsnk or
             other drawee st the time he issued the check or
             order; or

                  (2) psyment wss refused by the benk or
              other drswee for lsck of funds or insufficient
              funds on preseutstion within 30 days after
              issue and the issuer feiled to pay the holder
              in full within-10 deya efter receiving notice
              of that refusal,  (Emphssia added).

   ’ Presentment, dishonor, notice, and subsequent failure to pay are
necessery to support both of those presumptions.        See Sulecie v.
e,      631 S.W.Zd et 572. It is our opinion that z         evldentlery
presumptions of an lsaencia:l llemant of the offenses of theft snd
issuance of a bsd check epply where the Issuer fsila to pay the holder
the full   smount of the check efter dishonor end notice end that
refuael to psy e processing fee does not sffect     those presumptions.
It should be noted, however, that regardless of the existence of such
presumptions, the prosecution may establish      the elements of the
offense by direct evidence.

      In addition to the avldentfary praaumption of the Issuer’s
knowledge of Insufficient    funda, section 32.41 of the Pens1 Code, es
-ded       by   the  Sixty-eighth   Legislature,  espreaaly   euthoriaes
restitution   of l bsd check thst is issued or passed by l person who
knows thet sufficient funds era not on deposit.    Subsection (8) states
that

           [e] person cbargad tith     sn offense under this
           section mey make restitution   for the bsd checke.
           Restitution shall be made through the prosecutor’e
           office if eollect:ton and processing were initiated
           through thet off fee.   In other ceeea reetitution
           may, with the approve1 of the court in which the
           offenee is filed ,, be mede through the court,    by
           certified  checks, cashiers checks. or money order
           only, psysble to t’he person that received the bsd
           checks.




                                     p. 2160
Bowreble   George Pierce - Pege 4 (JU-472)




      For certeln    purpoees, reetitution    conetitutee tbet whtch io
or&red by the court.      See C,odeCrir. Proc. lrt. 42.03, SS(b)(4)   (work
releese programs); l    rt.J.12,     18(c) (probetion revoution);       lrt.
42.12, 115(g)(l)   (conditiotm of parole).   The provisions of aubeection
(e) neith        e r nor l
             define          pmify the effect of “restitution.’     One of
the fundamtal     rules of ltatutory construction la the rule thet worda
in comon use, when contained in a etstute, will be read eccordlng to
their neturel,     ordinaq,     and populer meaning, unless l contrery
intention is cleerly sppermt from the context. See Wetlonel Life Co.
v. Ste all,  169 S.W.?d 155, 157 (Tu. 1942); Attzey        Genersl Opinion
&962).               A dicttmery    my be consulted to eacertsin         the
meaning of e word.      See Board of Insurance Cowaaisaioners v. Duncan,
174 S.W.Zd 326, 328 T&-Civ.          App. - Amarillo 1943, writ     ref'd);
Attorney General Opinion I:-,1277 (1978).     Bleck'a Law Dictionary 1180
 (5th ld. 1979) defines "restitution"      as the set of making good or
giving equivalent for any loss. dsmage, or injury.           Since section
32.41(e) does not provide for “payment in full of the chsck" but.
 Instead, provides for "re~ltitutlon,"    we believe that the legialgture
 Intended to give the isauar the opportunity to reimburse the holder
 for both the mo u nt of l dishonored check snd snp processing fee to
which the holder is entitbkd.

      Weither restitution nor the absence of restitution is an izlement
of the offense of iaeuing e bad check. It la our opinion that the
legialeture  intends thet    I:hc effect of meking restitution for having
issued s bsd check is within the discretion of the prosecutor whose
office initiates   collectlca. and processing of the check or the judge
before whom the offense is pending. See also Code Grim. Proc. art.
102.007 (fee for prosecutor's        office for collecting and processing
check thet constitutes       offense under Penel Code 131.03; 131.04;
132.41).

       You inquire whether s collection agency may cherge the processing
 fee even though the collection      agency is not l party to whom the
 diehonored check wee written.       We conclude thet the lenguege of
 lrticle 9022 expresses en jstention on the pert of the legisleture    to
 euthorize the charging of a resaoneble processing fee by such sn
 w-7.       Article 9022 atatee thet the holder of e check or its
 assignee. *gent, repreaen~:trtive. or eny other person retained by the
 holder to seek collection of the fete velue of a dishonored check may
 charge the drawer or endorser e ressonable processfng fee. not to
 exceed $15.

       You llao sek whether e civil suit ie the only loge1 recourse of s
 holder of l dishonored check or of s collection         sgancy for the
 collection of e processing fee suthoriaed by article 9022, V.T.C.S.
 Prosecution of en offenaa, egainat the state under the Penal Code is
 not i.nitleted by the bolder of l check or s collection sgency but is
 decormined by the atate':~ prosecuting attorneys and the courts.      A




                                     p. 2161
         .
                 Rormreble George Pierce - Page 5 (a-472)




                 processing fee under srtlc1.o 9022 is e civil matter, end the only
                 legal recourse svsilsble  to the holder of the check or s collection
                 agency for the collection of such e processing fee is s civil suit.

                                                 SUMMARY

                              The charge snd payment of l processing fee for
                           s dishonored check under srticle    9022, V.T.C.S..
                           is e civil mettex.   The fsilure   to psy the pro-
                           ceasing fee is 001: an element of an offense of
                           theft or of Issuance of s bad check under the
                           Penal Code and does not affect the evidentiary
                           presumptions provided by sections 31.06(s)       and
                           32.41(b) of the Pens1 Code. A civil suit is the
                           only legal recoume svsilsble     to s holder of a
                           dishonored check or a collection agency for the
                           collection of such a processing fee.




r,                                                         JIM     MATTOX
     -       .                                             Attorney General of Texas

                 JACKBIGETOWKR
                 First Assistant Attorney Geuersl

                 MARYKELLER
                 Executive Assistant   Attornelr General

                 ROBERTGRAY
                 Special Assiatsnt   Attoruey   Gtmersl

                 RICK GILPIR
                 Chairman, Opinion Committee

                 Prepsred by Nancy Sutton
                 Asaistsnt Attorney General




                                                      p. 2162
