06 Oct Can a Contractor Be Criminally Charged in Texas
In 2014, an entrepreneur, Mr. Alexander, was sentenced to three years in prison for making a false statement to obtain property or credit. Alexander was the general contractor for a company hired to oversee the construction of a used car dealership in Fort Worth. The way I determine if the contractor has deposited the victim`s funds into an escrow account is to track the funds through bank records. This is where the effective use of subpoenas before a grand jury comes in handy. If a victim paid for a contractor`s services by cheque, preload the victim`s bank records to see which account the financial institution was deposited into. (In the assignment, be sure to request the control photos. Typically, financial institutions usually only send bank statements unless you tell you otherwise.) In my experience, you will find that the account contains mixed funds – construction trust funds and the contractor`s personal expenses – which violate § 162.006. As a result, the contractor`s lack of compliance gives you the basis for a fee § 32.45. Sections 31.03 and 32.45 allow the state to aggregate the total loss to victims, which is useful when contractors have scammed several people for $3,000 here and $5,000 there.
Instead of multiple charges with smaller theft allegations, the ability to aggregate gives prosecutors the opportunity to reach the third- or second-degree sentencing range. Trustee: A builder, subcontractor or owner who receives, controls or directs construction materials paid for as part of work or materials provided by others (banks, securities companies and corporate guarantors who issue a payment bond are not trustees). If the contractor has not fulfilled his obligations as described in your contract, he is obliged to pay the additional costs for the timely execution of the order, as well as in many cases additional compensation. If you`re not sure if your contractor has a business unit or is just a craftsman, you can check out the Texas Secretary of State`s website. Your lawyer can help you identify the responsible party and help you file a claim. Infringement claims allow owners to claim the damages they have suffered. This may include reimbursement of payments or reimbursement of the difference in cost for hiring a new contractor. It may also include any other damage that the owners have suffered. While I was working on white-collar cases, I met a lot of people who hired a contractor who hadn`t finished the job or who had never started the project after receiving funding during the initial consultation. Another common scenario is after a severe storm that caused damage to the roofs of many homes in one area – contractors asked individuals to sign their insurance checks to repair their roofs, and then they fled with the funds. Victims have no roof and no insurance money to fix it.
Theft costs would be unavoidable, especially if the contractor has an upfront fee or if there are other customers who have had similar or related problems with the contractor. Although such a case can be classified as a breach of contract, it can be found that the contractor intentionally embezzled funds due to deception, resulting in theft if there is evidence that the contractor embezzled the money (used it for purposes other than building the house as agreed) and did not repay it as agreed. The purpose of the law is to protect those who provide labour or materials for the construction or repair of property by requiring that funds be held in trust for all parts of the construction chain. The idea is that since most of the money builders receive from owners is usually owed to others – subcontractors and suppliers – the builder holds the money in trust for those to whom it is owed. This is unfortunately a common scenario. Homeowners want to renovate their home or fix a faulty defect, so they hire a contractor or subcontractor to do the job. Conversion takes a lot of time and financial resources. Therefore, homeowners must take out a loan to pay the bill. However, during construction and renovation, the contractor or subcontractor mismanages the work. You can spend the money, but not buy the necessary equipment or hire the right crew. They may even leave the work unfinished or not pay their own subcontractors. When this happens, homeowners are often held financially responsible and face an uphill battle.
What can they do? Is there a way to hold negligent and irresponsible entrepreneurs accountable? It is important to note that funds received to pay the builder`s fees are not considered trust funds. With respect to money that is considered a trust fund, if a builder abuses those funds, the builder can be held criminally and personally liable. “No work done” scenarios are generally simpler than complaints about “partial benefits.” Unlike partial services, where some work has been done and the state must prove the contractor`s intention to withdraw money from the owner, it is generally easier to show work where no work has been done that the contractor intends to scam the consumer. Another case I have dealt with can be classified as “luck” as opposed to “great investigative skills”. Mario Vila was a contractor specializing in the construction of outdoor residential buildings and advertised his business on Craigslist. Various owners paid large deposits to Vila for the materials, but he never did any of the work. One of the owners found other victims and had an interview with the consumer protection journalist of a local news channel. When Vila himself saw the news, he contacted the station to tell his side of the story. In the end, the case was presented to me essentially as a gift – the victims already conducting their own investigation with supporting documents and a video recording of the accused explaining why he had never done a job. As might be expected, if the state is armed with this great evidence, the case resulted in an admission of guilt with full compensation paid in advance. Every month, we see news across the state about entrepreneurs taking tens of thousands of dollars away from citizens in our communities. Before we quickly dismiss these complaints on the grounds of ignorance, it is important that we take the time to investigate them and use the Penal Code and other legal provisions to our advantage.
For complaints where a contractor has done work, I first look at what the contract wording says (if there is a contract). Often, in these cases, it is a homeowner who pays a contractor to complete a home renovation project. The owner usually pays half the cost in advance and the other half after the order is completed. What prosecutors often see is that the contractor takes the first payment, completes the demolition and disappears. The victim calls and calls the contractor and receives an apology after another to explain why the work was stopped until all communication is stopped. The victim has now demolished part of his house and his money has disappeared. What makes it difficult to prove partial enforcement is to prove that the contractor intended to deprive the victim of his property – in these cases money – and the intention to deprive him makes this situation criminal, as opposed to acts of negligence that would serve as a basis for civil proceedings. Traditional Criminal Complaint is the law that prosecutors use to convict people accused of stealing money from others, Penal Code § 31.03 (theft). In case of fraud by contractors, I include not only § 31.03 in my indictment, but also a counter for § 32.45 (incorrect application of trust property).
At first glance, § 31.03 seems to be the simplest law, but in my experience, § 32.45 can be just as effective. Unlike theft, which requires a guilty mental state, you can obtain a conviction in accordance with § 32.45 without necessarily proving a guilty mental state.