Investigative Techniques with Possible Civil Matter

[Hotsummers]

What is the name of your state (only U.S. law)? Texas

Good Morning,
The jist of the story is this, person A created a joint checking account with person B so that person B could take care of person A’s personal finances while working outside the country, including property, renters, etc. There was no set salary or payment for services established other than person A agreeing that person B could pay some personal bills out of the joint account. This arrangement lasted for 18+ months and was ended in January 2014 when it just became too much of a burden to continue. Shortly thereafter, person A demanded repayment of monies used to pay person B’s personal bills from the joint account. This seems to be a civil dispute in my mind.

Person B has refused to repay any amount of monies, so person A went to the local PD and reported it as a theft. Person B recently met with an investigator from the PD and stated the DA as already agreed there is enough to file a felony charge but if person’s A/B can agree to payment terms, put it on paper and have it notarized no further action will be taken.

My questions are this...

1. In general, can there ever be theft from a joint bank account? Do both persons not have equal right to the money, and in this case person A would run a certain level of risk that the money will be utilized for its intended purpose?

2. Assuming this is a civil matter, or even if it’s a criminal matter, is it common or appropriate for the PD to threaten someone with a felony charge to force them into signing a promissory note for an amount of money they may or may not agree with? Isn't restitution of theft a civil matter?

Thank You in advance

 

[Just Blue]

What is the name of your state (only U.S. law)? Texas

Good Morning,
The jist of the story is this, person A created a joint checking account with person B so that person B could take care of person A’s personal finances while working outside the country, including property, renters, etc. There was no set salary or payment for services established other than person A agreeing that person B could pay some personal bills out of the joint account. This arrangement lasted for 18+ months and was ended in January 2014 when it just became too much of a burden to continue. Shortly thereafter, person A demanded repayment of monies used to pay person B’s personal bills from the joint account. This seems to be a civil dispute in my mind.

Person B has refused to repay any amount of monies, so person A went to the local PD and reported it as a theft. Person B recently met with an investigator from the PD and stated the DA as already agreed there is enough to file a felony charge but if person’s A/B can agree to payment terms, put it on paper and have it notarized no further action will be taken.

My questions are this...

1. In general, can there ever be theft from a joint bank account? Do both persons not have equal right to the money, and in this case person A would run a certain level of risk that the money will be utilized for its intended purpose?

2. Assuming this is a civil matter, or even if it’s a criminal matter, is it common or appropriate for the PD to threaten someone with a felony charge to force them into signing a promissory note for an amount of money they may or may not agree with? Isn't restitution of theft a civil matter?

Thank You in advance

Sorry...We don't do homework.

 

[Hotsummers]

Sorry...We don't do homework.

Meaning, you think I am a student?

 

[Just Blue]

Meaning, you think I am a student?

ummmYeah.

 

[racer72]

Have person A or B sign up and ask their own questions. Even if it's not homework, we don't like dealing with third party information.

 

[Hotsummers]

Have person A or B sign up and ask their own questions. Even if it's not homework, we don't like dealing with third party information.

I understand. My wife and I are person B, more specifically my wife. Person A is a Dr. who obviously has the resources to go after us civily if she had a legal right to the money. We are trying to wrap our heads around if she doesn't really have a legal right to repayment if she is using the PD with small town politics as a secondary means of getting the repayment she desires.

 

[single317dad]

What is the name of your state (only U.S. law)? Texas

Good Morning,
The jist of the story is this, person A created a joint checking account with person B so that person B could take care of person A’s personal finances while working outside the country, including property, renters, etc. There was no set salary or payment for services established other than person A agreeing that person B could pay some personal bills out of the joint account. This arrangement lasted for 18+ months and was ended in January 2014 when it just became too much of a burden to continue. Shortly thereafter, person A demanded repayment of monies used to pay person B’s personal bills from the joint account. This seems to be a civil dispute in my mind.

Person B has refused to repay any amount of monies, so person A went to the local PD and reported it as a theft. Person B recently met with an investigator from the PD and stated the DA as already agreed there is enough to file a felony charge but if person’s A/B can agree to payment terms, put it on paper and have it notarized no further action will be taken.

My questions are this...

1. In general, can there ever be theft from a joint bank account? Do both persons not have equal right to the money, and in this case person A would run a certain level of risk that the money will be utilized for its intended purpose?

2. Assuming this is a civil matter, or even if it’s a criminal matter, is it common or appropriate for the PD to threaten someone with a felony charge to force them into signing a promissory note for an amount of money they may or may not agree with? Isn't restitution of theft a civil matter?

Thank You in advance

My advice? Do not let the police leverage a possible criminal charge to get your wife to agree to concede what may be a civil matter. Hire a competent attorney immediately. Whether this is a case of theft or whether your wife owes the Dr anything at all will hinge on what their agreement was and how enforceable it is.

 

[CavemanLawyer]

What is the name of your state (only U.S. law)? Texas
1. In general, can there ever be theft from a joint bank account? Do both persons not have equal right to the money, and in this case person A would run a certain level of risk that the money will be utilized for its intended purpose?

The definition of ownership in Texas includes a greater right to possession, so theft certainly could occur from a joint banking account but it is a fact specific issue and a joint account would be a very "bad fact" for the state to get around in a prosecution. However, a more common an appropriate charge in a situation like this would be the charge of misapplication of fiduciary property. This is when someone is acting as a fiduciary (using and accessing someone else's money by agreement for that person's benefit) and does something with the money that is contrary to the agreement. Was there a written contract? Are the reimbursements requested for expenditures during the entire 18 months or just towards the end? Did the personal expenditures change or expand beyond what was agreed upon? Charges like theft or misapplication vary in degree of the charge (felony or misdemeanor) depending largely on how much money is involved but there can be other enhancing factors as well.

2. Assuming this is a civil matter, or even if it’s a criminal matter, is it common or appropriate for the PD to threaten someone with a felony charge to force them into signing a promissory note for an amount of money they may or may not agree with? Isn't restitution of theft a civil matter?

In my opinion it would be highly inappropriate and possibly illegal for a police officer or District Attorney investigator to attempt to get you to "settle" to avoid filing a felony charge. In some cases of alleged theft it is appropriate for officers to inform a suspect of the amount believed to be owed and let them know that there is still time to pay it back before the issue rises to the level of a crime.

Restitution for a civil action is of course a civil matter. But restitution for a crime is in fact both a civil and a criminal matter. Texas has restitution statutes that let the prosecutor seek money on behalf of the victim through the criminal case, but only for actual damages. The amount of money stolen or misapplied would qualify.

Sec. 32.45. MISAPPLICATION OF FIDUCIARY PROPERTY OR PROPERTY OF FINANCIAL INSTITUTION. (a) For purposes of this section:

(1) "Fiduciary" includes:

(A) a trustee, guardian, administrator, executor, conservator, and receiver;

(B) an attorney in fact or agent appointed under a durable power of attorney as provided by Chapter XII, Texas Probate Code;

(C) any other person acting in a fiduciary capacity, but not a commercial bailee unless the commercial bailee is a party in a motor fuel sales agreement with a distributor or supplier, as those terms are defined by Section 162.001, Tax Code; and

(D) an officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary.

(2) "Misapply" means deal with property contrary to:

(A) an agreement under which the fiduciary holds the property; or

(B) a law prescribing the custody or disposition of the property.

(b) A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.

C.C.P. Art. 42.037. RESTITUTION. (a) In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make [Previous Hit] restitution [Next Hit] to any victim of the offense or to the compensation to victims of crime fund established under Subchapter B, Chapter 56, to the extent that fund has paid compensation to or on behalf of the victim. If the court does not order [Previous Hit] restitution [Next Hit] or orders partial [Previous Hit] restitution [Next Hit] under this subsection, the court shall state on the record the reasons for not making the order or for the limited order.

(b)(1) If the offense results in damage to or loss or destruction of property of a victim of the offense, the court may order the defendant:

(A) to return the property to the owner of the property or someone designated by the owner; or

(B) if return of the property is impossible or impractical or is an inadequate remedy, to pay an amount equal to the greater of:

(i) the value of the property on the date of the damage, loss, or destruction; or

(ii) the value of the property on the date of sentencing, less the value of any part of the property that is returned on the date the property is returned.

 

[Hotsummers]

Was there a written contract? Are the reimbursements requested for expenditures during the entire 18 months or just towards the end? Did the personal expenditures change or expand beyond what was agreed upon? Charges like theft or misapplication vary in degree of the charge (felony or misdemeanor) depending largely on how much money is involved but there can be other enhancing factors as well.
.

There was no written contract. Initially, my wife was providing the service at no cost, and I got tired of seeing her spending so much time conducting her business and not being compensated. My wife went to her and that was the verbal deal they worked out, it seemed like a form of reasonable compensation. I believe this went on for about 5 or 6 months (towards the end as you presumed), and we are not sure what the request for expenditures includes, we have not been given any type of itemized list.