criminal-law texas theft
10-day Demand Letters in Texas
<p>Some Texas districts/counties publish a 10-day demand letter that can be used when trying to retrieve property from a person, such as <a href="https://www.cleburne.net/DocumentCenter/View/751/UUMV-10-day-demand-letter?bidId=" rel="nofollow noreferrer">Cleburne</a>, <a href="https://www.dallaspolice.net/divisions/Shared%20Documents/ATU_DemandLtr.pdf" rel="nofollow noreferrer">Dallas</a> and <a href="http://www.houstontx.gov/police/auto_theft/pdfs/10Day_Demand_Letter.pdf" rel="nofollow noreferrer">Houston</a>.</p>
<p>Some of these letters reference <a href="https://statutes.capitol.texas.gov/Docs/PE/pdf/PE.31.pdf" rel="nofollow noreferrer">Chapter 31 of the Texas Penal Code</a> which covers theft.</p>
<p>If property (let's say a vehicle, because some of the letters note the offense of <a href="https://www.austintexas.gov/page/unauthorized-use-motor-vehicle" rel="nofollow noreferrer">UUMV</a>) is taken in a county/district which does not have one of these letters published, such as Tarrant county. Can these letters still be used in those counties? Is this a Texas-wide law, and what part of Ch. 31 of the penal code makes the refusal of the 10-day demand a criminal matter? Would the Tarrant County DA be compelled to investigate a theft based on the outcome of a 10-day demand letter?</p>

<h3>Short Answer</h3>
<p>The 10 day demand letters are state law but only apply when the property (in the case of the question, a car) was leased in a written agreement, or was purchased for a bad check. And, it isn't always ten days. These laws do not apply to other cases where the car is initially used with permission and then not returned upon the request of its owner.</p>
<p>Also, the ten day letter is for purposes of obtaining a presumption that the property was stolen by not being returned, but isn't the only way that an intent to steal property by not returning it can be established in Texas.</p>
<p>No DA has any obligation to investigate or pursue any crime, even if there is 100% clear evidence that a criminal law has been violated. As a practical matter, a DA will usually prosecute any crime that there is a good chance that the DA will prevail in winning, unless it is trivial or there are extenuating circumstances, but a DA in Texas can't be compelled to bring criminal charges.</p>
<p>If the DA doesn't press charges, self-help to regain possession of the car may be legal and a civil <a href="https://en.wikipedia.org/wiki/Replevin" rel="nofollow noreferrer">replevin</a> lawsuit to compel the return of the vehicle to the owner is available. (See also <a href="https://lawshelf.com/videocoursesmoduleview/prejudgment-collection-actions-module-4-of-5/" rel="nofollow noreferrer">here</a>).</p>
<h3>Long Answer</h3>
<blockquote>
<p>Can these letters still be used in those counties? Is this a
Texas-wide law, and what part of Ch. 31 of the penal code makes the
refusal of the 10-day demand a criminal matter?</p>
</blockquote>
<p>There are two provisions of <a href="https://statutes.capitol.texas.gov/Docs/PE/pdf/PE.31.pdf" rel="nofollow noreferrer">Chapter 31 of the Texas Penal Code</a>, both of which have statewide applicability, that call for ten day notices to trigger criminal theft liability in Texas. One is Section 31.04 of the Texas Penal Code, pertaining to theft of services, and the other is Section 31.06 of the Texas Penal Code, pertaining to theft by check.</p>
<p>In these cases, the key question presented is whether someone who didn't pay merely unintentionally breached a contract or unintentionally failed to have funds available to pay a check, which is not a criminal offense, or intentionally secured services or the use of rental property or whatever was provided in exchange for a bad check, without intending to pay, which is a crime.</p>
<p>Texas clarifies this issue, by creating a presumption of ill intent if a written notice was provided to the party obtaining services or renting property, or the party tendering a bad check, and a timely notice (usually, but not always, a ten day notice) does not receive a satisfactory and timely response. This is only a presumption, however, and can be overcome with evidence showing a contrary intent. But the presumption makes the defenses to the presumption affirmative defenses with a burden of proof on the defendant rather than the prosecution. In the theft of services statute, Section 31.04, the presumption in cases where a notice letter is send is as follows:</p>
<blockquote>
<p>(b) For purposes of this section, intent to avoid payment is presumed
if any of the following occurs: . . .</p>
<p>(2) the actor failed to make payment under a service agreement within
10 days after receiving notice demanding payment;</p>
<p>(3) the actor returns property held under a rental agreement after the
expiration of the rental agreement and fails to pay the applicable
rental charge for the property within 10 days after the date on which
the actor received notice demanding payment;</p>
<p>(4) the actor failed to return the property held under a rental
agreement:</p>
<p>(A) within five days after receiving notice demanding return, if the
property is valued at less than $2,500;</p>
<p>(B) within three days after receiving notice demanding return, if the
property is valued at $2,500 or more but less than $10,000; or</p>
<p>(C) within two days after receiving notice demanding return, if the
property is valued at $10,000 or more; or</p>
<p>(5) the actor: (A) failed to return the property held under an
agreement described by Subsections (d-2)(1)-(3) within five business
days after receiving notice demanding return; and</p>
<p>(B) has made fewer than three complete payments under the agreement.</p>
<p>(c) For purposes of Subsections (a)(4), (b)(2), (b)(4), and (b)(5),
notice must be:</p>
<p>(1) in writing;</p>
<p>(2) sent by:</p>
<p>(A) registered or certified mail with return receipt requested; or</p>
<p>(B) commercial delivery service; and</p>
<p>(3) sent to the actor using the actor ’s mailing address shown on the
rental agreement or service agreement.</p>
<p>(d) Except as otherwise provided by this subsection, if written notice
is given in accordance with Subsection (c), it is presumed that the
notice was received not later than two days after the notice was sent.
For purposes of Subsections (b)(4)(A) and (B) and (b)(5), if written
notice is given in accordance with Subsection (c), it is presumed that
the notice was received not later than five days after the notice was
sent.</p>
<p>(d-1) For purposes of Subsection (a)(2), the diversion of services to
the benefit of a person who is not entitled to those services includes
the disposition of personal property by an actor having control of the
property under an agreement described by Subsections (d-2)(1)-(3), if
the actor disposes of the property in violation of the terms of the
agreement and to the benefit of any person who is not entitled to the
property.</p>
<p>(d-2) For purposes of Subsection (a)(3), the term &quot;written rental
agreement&quot; does not include an agreement that:</p>
<p>(1) permits an individual to use personal property for personal,
family, or household purposes for an initial rental period;</p>
<p>(2) is automatically renewable with each payment after the initial
rental period; and</p>
<p>(3) permits the individual to become the owner of the property.</p>
<p>(d-3) For purposes of Subsection (a)(4):</p>
<p>(1) if the compensation is or was to be paid on a periodic basis, the
intent to avoid payment for a service may be formed at any time during
or before a pay period;</p>
<p>(2) the partial payment of wages alone is not sufficient evidence to
negate the actor’s intent to avoid payment for a service; and</p>
<p>(3) the term &quot;service&quot; does not include leasing personal property
under an agreement described by Subsections (d-2)(1)-(3).</p>
<p>(d-4) presumption established under Subsection (b) involving a
defendant ’s failure to return property held under an agreement
described by Subsections (d-2)(1)-(3) may be refuted if the defendant
shows that the defendant:</p>
<p>(1) intended to return the property; and</p>
<p>(2) was unable to return the property.</p>
<p>(d-5) For purposes of Subsection (b)(5), &quot;business day&quot; means a day
other than Sunday or a state or federal holiday. . . . (g) It is a
defense to prosecution under this section that:</p>
<p>(1) the defendant secured the performance of the service by giving a
post-dated check or similar sight order to the person performing the
service; and</p>
<p>(2) the person performing the service or any other person presented
the check or sight order for payment before the date on the check or
sight order.</p>
</blockquote>
<p>Similarly, Section 31.06 makes it a crime to write a bad check when, among other circumstances:</p>
<blockquote>
<p>(2) payment was refused by the bank or other drawee for lack of funds
or insufficient funds, on presentation within 30 days after issue, and
the issuer failed to pay the holder in full within 10 days after
receiving notice of that refusal.</p>
<p>(b) For purposes of Subsection (a)(2) or (f)(3), notice may be actual
notice or notice in writing that:</p>
<p>(1) is sent by:</p>
<p>(A) first class mail, evidenced by an affidavit of service; or</p>
<p>(B) registered or certified mail with return receipt requested;</p>
<p>(2) is addressed to the issuer at the issuer’s address shown on:</p>
<p>(A) the check or order;</p>
<p>(B) the records of the bank or other drawee; or</p>
<p>(C) the records of the person to whom the check or order has been
issued or passed; and</p>
<p>(3) contains the following statement:</p>
<p>&quot;This is a demand for payment in full for a check or order not paid
because of a lack of funds or insufficient funds.AAIf you fail to make
payment in full within 10 days after the date of receipt of this
notice, the failure to pay creates a presumption for committing an
offense, and this matter may be referred for criminal prosecution.&quot;</p>
<p>(c) If written notice is given in accordance with Subsection (b), it
is presumed that the notice was received no later than five days after
it was sent.</p>
<p>(d) Nothing in this section prevents the prosecution from establishing
the requisite intent by direct evidence.</p>
<p>(e) Partial restitution does not preclude the presumption of the
requisite intent under this section.</p>
<p>(f)If the actor obtained property by issuing or passing a check or
similar sight order for the payment of money, the actor ’s intent to
deprive the owner of the property under Section 31.03 (Theft) is
presumed, except in the case of a postdated check or order, if:</p>
<p>(1) the actor ordered the bank or other drawee to stop payment on the
check or order;</p>
<p>(2) the bank or drawee refused payment to the holder on presentation
of the check or order within 30 days after issue;</p>
<p>(3) the owner gave the actor notice of the refusal of payment and made
a demand to the actor for payment or return of the property; and</p>
<p>(4) the actor failed to:</p>
<p>(A)pay the holder within 10 days after receiving the demand for
payment; or</p>
<p>(B)return the property to the owner within 10 days after receiving the
demand for return of the property.</p>
</blockquote>
<p>The ten day letter presumption of Section 31.04 does not apply, as the question suggests, to unlawful detainer of tangible personal property outside a rental agreement, and the presumption of Section 31.06 does not apply to return of property other than a request for return of property purchased with a bad check.</p>
<p>For example, if someone borrows your car or lawn mower and doesn't return it. In those cases, intent not to return the property is a question of fact, the burden of proof of which is always on the prosecution, and while a ten day letter would be helpful in allowing a prosecutor to prove ill intent to convert the borrowed property, it isn't something with formal recognition.</p>
<p>The distinction is probably made to recognize that while the exact nature of the transaction to give someone the property is clear in the case of written rentals of tangible personal property, or a purchase of tangible personal property in exchange for a check, it is often unclear whether an undocumented transfer of tangible personal property is a gift, a loan, or a lease of the property not made in writing. The presumption can't apply when the original nature of the transaction isn't established.</p>
<p>In the case of a vehicle, Section 31.07 of the Texas Penal Code would more often be relevant. It states that:</p>
<blockquote>
<p>Sec. 31.07. UNAUTHORIZED USE OF A VEHICLE. (a) A person commits an
offense if he intentionally or knowingly operates another ’s boat,
airplane, or motor-propelled vehicle without the effective consent of
the owner.</p>
<p>(b)An offense under this section is a state jail felony.</p>
</blockquote>
<p>All one has to prove is a lack of consent to use the vehicle, although that doesn't necessary come into play if the vehicle is in someone else's possession but not returned, which would implicate the general theft offense of Section 31.02 of the Texas Penal Code. Lack of consent to use could be established with a text message that one can prove was read by the person receiving it, by an email that one can prove was read by the person receiving it, or with a brief recorded telephone conversation (Texas has a &quot;<a href="https://www.dmlp.org/legal-guide/texas-recording-law#:%7E:text=Texas%20makes%20it%20a%20crime,Texas%20Penal%20Code%20%C2%A7%2016.02.&amp;text=Therefore%2C%20you%20may%20be%20able,or%20a%20restaurant%2C%20without%20consent." rel="nofollow noreferrer">one party consent law</a>&quot; with regard to recording telephone conversations.)</p>
<p>An acknowledgement in a text message, email or recorded telephone call that property of another is being retained without permission even if it is not being used by the person in possession of it, could also prove theft pursuant to Texas Penal Code Section 31.02.</p>
<p>Note, however, that <a href="https://akerlylaw.com/News/Article/repossession-of-motor-vehicles-in-advance-of-bankruptcy-filing#:%7E:text=Constitutional%20Lien,parts%20furnished%20and%20labor%20performed." rel="nofollow noreferrer">some constitutional and statutory liens in tangible personal property in Texas</a>, such as a repairman's lien give someone doing work on a vehicle the right to retain possession of the vehicle until paid, even in the face of a demand to return the vehicle. See Tex. Const. art. XVI, § 37; Tex. Prop. Code Ann. § 70.001; Tex. Prop. Code Ann. § 70.003; <em>Thompson v. Apollo Paint &amp; Body Shop</em>, 768 S.W.2d 373 (Tex. App. Houston 14th Dist. 1989), writ denied, (July 12, 1989); <em>Garcia v. Rutledge</em>, 649 S.W.2d 307 (Tex. App. Amarillo 1982); <em>First State Bank of Odessa, N.A. v. Arsiaga</em>, 804 S.W.2d 343, 344 (Tex. App.—Eastland 1991, writ denied).</p>
<p>A vehicle can also be repossessed without court action or permission granted at the time, for failure to pay a loan for which a vehicle is the collateral in Texas under the Article 9 of the Texas Uniform Commercial Code.</p>
<blockquote>
<p>Would the Tarrant County DA be compelled to investigate a theft based
on the outcome of a 10-day demand letter?</p>
</blockquote>
<p>No.</p>
<p>A DA has absolute freedom to exercise prosecutorial discretion to investigate or not investigate a theft for any reason other than a discriminatory reason, and it is basically impossible to prevail on a claim for discriminatory failure to prosecute. The leading case in U.S. Constitutional law is the U.S. Supreme Court case of <em>Castle Rock v. Gonzales</em>, <a href="https://supreme.justia.com/cases/federal/us/545/748/#tab-opinion-1961907" rel="nofollow noreferrer">545 U.S. 748</a> (2005).</p>
<p><em>The County Policies</em></p>
<p>The <a href="https://www.dallaspolice.net/divisions/Shared%20Documents/ATU_DemandLtr.pdf" rel="nofollow noreferrer">Dallas policy</a> linked references Texas Penal Code Section 31.07 (by name and not citation) and specifically states that this is simply a policy of the DA's office exercising its discretion to not always enforce the law even when it has the authority to do so. It states, &quot;The Dallas County District Attorney's Office mandates the following procedure MUST be taken to confirm the offender has been officially notified to return the vehicle and declines to do so.&quot; In other words, it is part of what the county DA does to screen cases to make them easier for the DA to prove when they are prosecuted, even though the DA is not obligated to have such a policy and can prosecute a case even though its policy says otherwise.</p>
<p>The <a href="https://www.cleburne.net/DocumentCenter/View/751/UUMV-10-day-demand-letter?bidId=" rel="nofollow noreferrer">Johnson county DA's form referenced</a> refers to Texas Penal Code Section 31.07 by citation even though the statute has no such requirement discounting the possibility that this is a requirement of a different statute or ordinance and suggesting strongly that as in Dallas, that this is a policy adopted by the DA of Johnson County, in the exercise of its discretion and not a legal requirement for a prosecution.</p>
<p><a href="https://www.austintexas.gov/page/unauthorized-use-motor-vehicle" rel="nofollow noreferrer">Austin</a> also appears to have such a county policy.</p>
<p>The <a href="http://www.houstontx.gov/police/auto_theft/pdfs/10Day_Demand_Letter.pdf" rel="nofollow noreferrer">link to the Houston materials</a> doesn't really provide any basis for its requirement, but given the two other county actions, appears to be creating its own law once again (Texans like to do things like that) even that the law doesn't require it.</p>
<p>Since these requirements are local administrative policies of particular DAs and have no legal force or effect aside from what is necessary to convince the current DA in those counties to act, these policies do not apply in other Texas counties that don't have such policies.</p>
<p>Most likely, multiple counties have the policy because other counties are following the lead of whichever county adopted the policy first, since the results were apparently good.</p>
<p>These policies are unlikely to be the subject to any litigated cases. Nothing prevents the DA from insisting on additional administrative requirements, but the defendants have no legal basis to use these policies as a defense to a prosecution.</p>
<p>I viewed the annotations to Section 31.07 and found no reference to such a requirement and an unreported case that was squarely contrary to that requirement:</p>
<blockquote>
<p>Evidence was sufficient to establish that defendant operated his
mother's vehicle after she withdrew her consent to his use of vehicle,
thus supporting his conviction for unauthorized use of a motor
vehicle; evidence at trial showed defendant's mother gave defendant
permission to use her car for 20 or 30 minutes, but defendant was
found by officers two days later in the driver's seat of the vehicle,
parked on the shoulder of a road, incoherent, apparently under
influence of drugs, and with a piece of string tied around his arm
being used as a tourniquet.</p>
</blockquote>
<p><em>Randall v. State</em> (App. 5 Dist. 2003) 2003 WL 360505, Unreported</p>
<p>The cases that the DAs are trying to screen out are likely similar to these cases:</p>
<blockquote>
<p>Evidence failed to establish driver's knowledge that he did not have
consent of owner of stolen car, and, thus, evidence failed to
establish unauthorized use of motor vehicle, even though driver told
arresting officer that he would lead police to thief who had loaned
car to driver;  driver made the statement after he was told that car
was stolen, and nothing indicated knowledge of the theft before police
told defendant.</p>
</blockquote>
<p><em>Herbert v. State</em> (App. 1 Dist. 1992) 827 S.W.2d 507.</p>
<blockquote>
<p>Evidence was legally insufficient to find that juvenile operated his
grandfather's vehicle without consent, as required to support
delinquency adjudication, even if juvenile's mother, who had greater
right of possession to vehicle, denied consent; grandfather had given
juvenile consent to drive vehicle, and juvenile's mother did not have
authority to negate such consent.</p>
</blockquote>
<p><em>In re Garza</em> (App. 7 Dist. 1998) 984 S.W.2d 344.</p>
