Notice to Issuer of Returned Check

Purpose
The purpose of this form is to put someone who gave you a hot check on notice that his check bounced. There are two reasons for this: first, hopefully he will, after receiving this notice from you, make good on the funds, including your hot check fee. Second, this notice lays the groundwork for reporting the hot check writer to the county or district attorney for criminal prosecution.

The section of the Texas Penal Code (which contains the Texas criminal laws) that describes the offense of “issuance of a bad check” is Section 32.41, which can be found in the TSSA Goldbook©. Under this statute, the county or district attorney must be able to prove that the hot check writer knowingly wrote a hot check. This statute says that the check writer is presumed to have knowingly written a hot check if a bank refused the check for lack of funds within 30 days after the check was issued and the check writer did not pay the check holder (your facility) in full within ten days after receiving notice of issuance of a bad check. In other words, if you have attempted to cash the check within 30 days after the tenant wrote the check, and the tenant has failed to make good on the check within ten days after he received your “Notice to Issuer of Returned Check,” the statutory requirements are satisfied and the county or district attorney may press criminal charges against the check writer.

When to Use
You may use this form whenever a tenant has written you a hot check. The fact that this form spells out the potential criminal penalties might give any tenant writing you a hot check additional incentive to make good on that check. Additionally, at your discretion, if you are using this form, you may turn unpaid hot checks over to the district or county attorney and request that they prosecute.

Tips for Use
This form must be sent certified mail, return receipt requested, in order for it to serve as the basis for county or district attorney action (there are other ways to satisfy the statute other than certified mail, return receipt requested, but they are not as good or easy). Postdated checks cannot be prosecuted, so if you accept postdated checks, accept them knowing that if the checks turn out to be hot, the district or county attorney can be of no help. As a practical matter, checks received through the mail won’t be prosecuted because the prosecutors have difficulty in establishing who signed them without an eye witness (but that doesn’t prevent you from sending the hot check notice).

You will also need to send the certified mail, return receipt requested, notice to the tenant at one of the three addresses listed in the statute in order for the county or district attorney to be able to prosecute: (1) the address on the check, (2) the address on the records of the bank, or (3) the address on your facility’s records for the tenant.

Remember, there is no law which prohibits a person from stopping payment on a check; therefore, it is important to deposit checks as soon as possible after they are received. Also remember that it is within the county or district attorney’s discretion as to whether to prosecute someone for writing a hot check. It is possible that the county or district attorney may have a policy of not prosecuting a hot check writer for his first offense, second offense, etc. or may have some other policy which would limit his willingness to prosecute.