Texas Penal Code 32.31 – Credit Card or Debit Card Abuse
WHAT IS CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS?
A person commits credit card or debit card abuse by using or possessing a credit or debit card not issued to them, using or possessing a fake or incomplete card, stealing or selling a stolen card, or otherwise attempting to fraudulently obtain a benefit with another’s credit or debit card number.
- What are examples of credit card or debit card abuse? The Texas law against credit card or debit card abuse lists the following acts as constituting an offense:
- presenting or using a credit or debit card with intent to fraudulently obtain a benefit, without the cardholder’s consent;
- presenting or using an expired, revoked, or canceled credit or debit card with intent to fraudulently obtain a benefit;
- using a fictitious credit or debit card, or fictitious card number, with intent to obtain a benefit;
- knowingly receiving a benefit that has been fraudulently obtained;
- stealing a credit or debit card, or knowingly receiving a stolen card with intent to use, sell, or transfer it to a person other than the cardholder;
- buying a credit or debit card from a person he knows is not the issuer;
- selling a credit card as someone who is not the issuer;
- using or inducing a cardholder to use his or her credit or debit card to obtain a benefit for which the cardholder is financially unable to pay;
- possessing a credit or debit card with intent to use it, without the cardholder’s permission;
- possessing two or more incomplete credit or debit cards without the issuer’s authorization;
- accepting payment with a forged, expired, revoked or otherwise unauthorized credit or debit card with intent to defraud the issuer;
- misrepresenting to the issuer, with intent to defraud the issuer, that certain goods or services were provided in exchange for payment, when in fact nothing was provided.
WHAT IS THE CREDIT CARD OR DEBIT CARD ABUSE LAW IN TEXAS?
Tex. Penal Code § 32.31. CREDIT CARD OR DEBIT CARD ABUSE
(b) A person commits an offense if:
(1) with intent to obtain a benefit fraudulently, he presents or uses a credit card or debit card with knowledge that:
(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; or
(B) the card has expired or has been revoked or canceled;
(2) with intent to obtain a benefit, he uses a fictitious credit card or debit card or the pretended number or description of a fictitious card;
(3) he receives a benefit that he knows has been obtained in violation of this section;
(4) he steals a credit card or debit card or, with knowledge that it has been stolen, receives a credit card or debit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder;
(5) he buys a credit card or debit card from a person who he knows is not the issuer;
(6) not being the issuer, he sells a credit card or debit card;
(7) he uses or induces the cardholder to use the cardholder’s credit card or debit card to obtain property or service for the actor’s benefit for which the cardholder is financially unable to pay;
(8) not being the cardholder, and without the effective consent of the cardholder, he possesses a credit card or debit card with intent to use it;
(9) he possesses two or more incomplete credit cards or debit cards that have not been issued to him with intent to complete them without the effective consent of the issuer. For purposes of this subdivision;
(10) being authorized by an issuer to furnish goods or services on presentation of a credit card or debit card, he, with intent to defraud the issuer or the cardholder, furnishes goods or services on presentation of a credit card or debit card obtained or retained in violation of this section or a credit card or debit card that is forged, expired, or revoked; or
(11) being authorized by an issuer to furnish goods or services on presentation of a credit card or debit card, he, with intent to defraud the issuer or a cardholder, fails to furnish goods or services that he represents in writing to the issuer that he has furnished.
(c) It is presumed that a person who used a revoked, cancelled, or expired credit card or debit card had knowledge that the card had been revoked, cancelled, or expired if he had received notice of revocation, cancellation, or expiration from the issuer. For purposes of this section, notice may be either notice given orally in person or by telephone, or in writing by mail or by telegram. If written notice was sent by registered or certified mail with return receipt requested, or by telegram with report of delivery requested, addressed to the cardholder at the last address shown by the records of the issuer, it is presumed that the notice was received by the cardholder no later than five days after sent.
(d) An offense under this section is a state jail felony, except that the offense is a felony of the third degree if it is shown on the trial of the offense that the offense was committed against an elderly individual as defined by Section 22.04.
WHAT IS THE PENALTY CLASS FOR CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS?
Credit card or debit card abuse committed against an elderly person over 65 is a third degree felony, punishable by two to ten years in prison. Otherwise, it is a state jail felony, punishable by 180 days to two years in a state jail facility.
WHAT IS THE PUNISHMENT RANGE FOR CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS?
Credit card or debit card abuse charged as a state jail felony carries between 180 days and two years in a state jail facility, and a maximum fine of $10,000. If charged as a third degree felony, the punishment range is two to ten years in prison, and a maximum fine of $10,000.
WHAT ARE THE PENALTIES FOR CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS?
A person charged with credit card or debit card abuse may be convicted and placed on probation for a period between two and five years. To avoid a conviction, a person may be placed on deferred adjudication for up to ten years if charged with a third degree felony, or between two and five years if charged with a state jail felony.
WHAT ARE THE DEFENSES TO CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS?
During a trial for credit card or debit card abuse, one usually attempts to negate an element of the offense. The State must specifically allege how the accused committed the offense.
- What does it mean to “present” or “use” a credit or debit card? When a person is charged with using or presenting a credit or debit card with intent to fraudulently obtain a benefit, the State must show the person either provided the card to another individual, such as swiping it during checkout, or otherwise placing the card into service.This does not require a complete transaction, so even if the card is declined, and the accused does not actually obtain a benefit, he or she may be charged with credit card or debit card abuse.
WHAT IS THE STATUTE OF LIMITATIONS FOR CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS?
The limitation period for credit card or debit card abuse is seven years.
CREDIT CARD OR DEBIT CARD ABUSE IN TEXAS
Credit card or debit card abuse is fraudulently obtaining a benefit through use or attempted use of another’s credit or debit card without permission, or a fictitious credit or debit card.
TEXAS CREDIT CARD OR DEBIT CARD ABUSE COURT CASES
The case law regarding credit card or debit card abuse in Texas illustrates the elements of the offense.
- In Clinton v. State, shortly after a man’s car was burglarized, the defendant swiped the man’s stolen debit card at a Wal-Mart in an attempt to purchase cigarettes. Even though the transaction was declined, she was charged and convicted of debit card abuse. The manner and means alleged was that the defendant “used” the man’s debit card with intent to fraudulently obtain a benefit, but she argued on appeal she did not use the card due to the declined transaction.The Court of Criminal Appeals affirmed the conviction, explaining that swiping the card through the card reader was using or presenting the card for the purpose of obtaining a benefit.
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WE FIGHT FOR DISMISSAL
DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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