austindefender

Criminal defense in Austin Texas.

Theft of Service – Debtors Prison?

Posted By on October 19, 2009

Theft of Service, Texas Penal Code 31.04, is a messy statute.  What it seems to say is that failing to pay your bills is the same as theft.

§ 31.04. THEFT OF SERVICE.  (a) A person commits theft of
service if, with intent to avoid payment for service that he knows
is provided only for compensation:
(1)  he intentionally or knowingly secures performance
of the service by deception, threat, or false token;
(2)  having control over the disposition of services of
another to which he is not entitled, he intentionally or knowingly
diverts the other’s services to his own benefit or to the benefit of
another not entitled to them;
(3)  having control of personal property under a
written rental agreement, he holds the property beyond the
expiration of the rental period without the effective consent of
the owner of the property, thereby depriving the owner of the
property of its use in further rentals;  or
(4)  he intentionally or knowingly secures the
performance of the service by agreeing to provide compensation and,
after the service is rendered, fails to make payment after
receiving notice demanding payment.

In any event, that seems to be what the legislature intended.  According to the Bill Analysis, the section was added in order to “protect service providers that…cannot collect the balance due from the customer,”  by holding accountable “people who agree to pay for services… and then refuse to pay.”

“If they could be held criminally accountable,” it says, “these people [customers] would be more likely to repay their debts to businesses.”

Which makes sense.  Pretty much all debt collectors know if you threaten to put people in prison (or to break their legs) they’re more likely to find the money that they owe.

So is debtors prison, having been abolished in the rest of the world in the nineteenth century, now alive and well in Texas?

It’s hard to say.  I would argue the bit about “intent to avoid services” applies not just to the act of not paying, but to securing the services as well.  If true, that would make it quite a bit harder to prosecute people for getting behind on their bills, since prosecutors would have to prove they set out to steal.  Which is quite a bit different from proving merely that somebody has unpaid bills.

Unfortunately, there’s even more to the statute – it goes on to say intent is presumed if a debt goes unpaid for ten days:

(b)  For purposes of this section, intent to avoid payment is
presumed if:
(1)  the actor absconded without paying for the service
or expressly refused to pay for the service in circumstances where
payment is ordinarily made immediately upon rendering of the
service, as in hotels, campgrounds, recreational vehicle parks,
restaurants, and comparable establishments;
(2)  the actor failed to make payment under a service
agreement within 10 days after receiving notice demanding payment
;
(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;  or
(4)  the actor failed to return the property held under
a rental agreement…

Which makes no sense – and is arguably unconstitutional.  According to the Supreme Court, a presumption must have at least some rational basis in fact.  Here the legislature is saying the mere fact you’re behind on a bill shows you set to steal.  However, the most people who owe money never set out to steal from anyone.

The fact is any number of businesses thrive on putting people into debt.  They make calculated decisions involving interest rates and default rates and whether to check – or not check – peoples’ credit.  The Rent A Center/ Rent A Wheel/ Payday Loan industry is just one example.  Criminalizing bad credit is good for them (maybe) – but is it good for the rest of us?

“Those who made the laws have apparently supposed, that every deficiency of payment is the crime of the debtor. But the truth is, that the creditor always shares the act, and often more than shares the guilt, of improper trust. It seldom happens that any man imprisons another but for debts which he suffered to be contracted in hope of advantage to himself, and for bargains in which proportioned his own profit to his own opinion of the hazard; and there is no reason, why one should punish the other for a contract in which both concurred.”
–Samuel Johnson 1758

Update: Theft of Service may also violate Tate v. Short, to the extent it incarcerates people for debts they can’t afford to pay.


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