What Should I Do About the Letter?The short answer is: nothing. You can probably ignore this letter and any other letters that they send to you even though each letter will typically become more and more threatening.
Ignore their threats, they rarely, if ever sue people based off of shoplifting charges. They want you to send them the money because you are scared. If you send them the money or you make some type of agreement with them you're stuck. The agreement would probably be enforceable as a contract and even if you could hire an attorney to try and get you out of it, it would be expensive.
Make sure that the demand letter is only that - a demand letter. If it makes threats of a possible lawsuit, it is only a demand letter. If it includes language stating that you have been sued and that you have a deadline to respond to the suit, then it may be a filed lawsuit. If it is a filed lawsuit, it will include the information about the specific court that the lawsuit is filed in.
Why Do They Send The Letters?They are playing a numbers game. They send out these letters on every reported case of shoplifting because letters are cheap. They are hoping that some of the people that receive these letters will get scared enough that they will just send in the money. If even a small percentage of people respond and pay, then they will make money.
What If They Take Me To Court?If they file suit, it will be under the Texas Theft Liability Act (the text of which can be found below). They can try and recover actual damages, costs and attorneys' fees. Damages are the loss that they actually suffer. The value of the property is one of the damages (if it was actually lost). The employee who was involved was already working, so there are no damages in the form of that employee's wages. The costs are the costs associated with the lawsuit - typically the cost of filing the suit and serving the defendant with notice of the suit. Service is the way that a defendant is given notice of the lawsuit. It will include a statement saying that you have been sued, a deadline to respond to the allegation in court, and the location of the specific court in which the lawsuit has been filed.
It is unlikely that they will ever go through the trouble and expense of filing the lawsuit. Some of the firms that send out these demand letters aren't even licensed in Texas.
What About Their Attorneys' Fees?These letters almost always include attorneys' fees in the demand. While they can recover attorneys' fees if they file suit and win (which is highly unlikely), you are not required to pay them just because they ask.
Is The Civil Demand The Same As Restitution?No - Restitution is different from a civil demand.
Typically, if someone is convicted of theft, the judgment includes restitution for the victim for the value of the property that the victim lost. If the property was recovered inside the store, there will usually not be any restitution to be paid. If the property was not recovered inside the store, then the value of the stolen property is repaid back.
The civil demand is more than just the value of the lost property. It can include the actual amount of damages (the value of the property plus any additional loss caused to the victim because of the lost property), $1,000 from the perpetrator (or $5,000 from the parents of the perpetrator), court costs, and attorneys' fees.
If I Pay, Will The Criminal Case Go Away?No.
Even if you send the entire amount that they are demanding and they send you some kind of release claims, it makes no difference to the criminal case.
The criminal case is brought by the state and only the state can dismiss it. The prosecutor is actually more likely to pursue the criminal case if you have paid the victim money because they can use that as evidence that you actually committed the crime.
What Should I Do?Because there will almost always be a criminal case associated with the civil demand, talk to a criminal defense attorney about it. Bring in the letter and ask questions. Go over all the specifics in your case.
The above is only a general discussion of the problem. There may be facts in your case that make this guide not apply to you.
Additional resources provided by the author
The current wording of the Texas Theft Liability Act is found below. I have included a link to the online version provided by the State of Texas in case the law changes. As it stands now, it says:
Civil Practice and Remedies Code - Chapter 134
Sec. 134.001. SHORT TITLE. This chapter may be cited as the Texas Theft Liability Act.
Sec. 134.002. DEFINITIONS. In this chapter:
(1) "Person" means an individual, partnership, corporation, association, or other group, however organized.
(2) "Theft" means unlawfully appropriating property or unlawfully obtaining services as described by Section 31.03, 31.04, 31.05, 31.06, 31.07, 31.11, 31.12, 31.13, or 31.14, Penal Code.
Sec. 134.003. LIABILITY. (a) A person who commits theft is liable for the damages resulting from the theft.
(b) A parent or other person who has the duty of control and reasonable discipline of a child is liable for theft committed by the child.
Sec. 134.004. SUIT. A suit under this chapter may be brought in the county where the theft occurred or in the county where the defendant resides.
Sec. 134.005. RECOVERY. (a) In a suit under this chapter, a person who has sustained damages resulting from theft may recover:
(1) under Section 134.003(a), from a person who commits theft, the amount of actual damages found by the trier of fact and, in addition to actual damages, damages awarded by the trier of fact in a sum not to exceed $1,000; or
(2) from a parent or other person who has the duty of control and reasonable discipline of a child, for an action brought under Section 134.003(b), the amount of actual damages found by the trier of fact, not to exceed $5,000.
(b) Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney's fees.
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