NC9 Deception Prevention Week: Civil vs. Criminal
POSTED: Friday, May 18, 2012 - 6:20pm
UPDATED: Friday, May 18, 2012 - 6:21pm
EL PASO — NC9 conducted a live interview with District Attorney Jaime Esparza, to assist you with deceptive trade practices.
Below is a Q&A of the interview.
1. How does a consumer know if they have a civil or criminal case?
a. It is hard for a consumer to determine on their own if their case is a civil offense, or if it rises to the level of a criminal case because every situation is fact specific.
2. What type of case would the District Attorney’s Office prosecute?
a. The Texas Deceptive Trade Practices Act sets out various elements that must be met in order for the case to be criminal. This is a complicated process and these cases are difficult to prosecute because there is often just a contract and a breach of contract that only under certain, very specific circumstances would be a criminal offense. However, once a defendant commits the same offense 8-10 times, criminal charges may be brought against the defendant for theft.
3. What needs to be shown to prove theft by deception?
a. There statute says that there must be repeat conduct 8-10 times. One difficult aspect of this offense is to prove that the defendant intended, from the beginning, at the moment the contract was entered into, to deceive the consumer.
i. For example, theft could occur if a consumer hired a contractor to build a garage for $10,000, gave him the money, but the contractor never intended to build that garage at all. If he had made similar promises to other consumers in the past, intent could be proven, elevating this to a criminal offense.
4. What are the most common scenarios for theft offenses your office prosecutes?
a. Builders/contractors that promise to build something. They may not do the job at all, but take a consumer’s money, or they might only partially perform. But, all of these types of cases involve a consumer that feels violated because they were promised something and did not get the same in return. This can be frustrating, and although if we can get their money back for them we will certainly do that, but that is not often the case.
5. What are some proactive steps consumers can take to protect themselves?
a. Do not pay the entire amount up front.
b. Check to be sure the address they give as their business address is a real, operating business.
c. Check the Better Business Bureau’s website
d. As for references, and go talk to those references, or check out the previous work they’ve done that is similar to what you are hiring them for.
e. The County Attorney’s Office is really the first line of defense. If you go to epcounty.com, you can find out quite a bit of information about the business. You can see if they have any civil or criminal cases pending against them, hot checks, or if they are actually even licensed to do business.
f. If you are having problems with the contractor from the beginning (they do not return your calls, etc), take action right away. Call the police department or the Sheriff’s Office - get law enforcement involved. Report their conduct immediately, and do not pay them anymore money if you suspect something is not right.