(a) If the appropriate district attorney general consents to use of this section as provided in subsection (e), in lieu of any criminal penalties imposed by § 39-14-105 for theft offenses, any employee of a retail merchant who willfully takes possession of merchandise from the retail merchant with the intent to convert the merchandise to personal use without paying the purchase price shall be subject to civil liability should the merchant prevail as follows:

(1) The greater of one hundred dollars ($100) or an amount three (3) times the listed retail price of the merchandise taken if the merchant does not recover the merchandise;

(2) The greater of one hundred dollars ($100) or an amount three (3) times the difference between the value of the damaged merchandise and the value of the merchandise prior to its conversion if the merchant recovers the merchandise but it is in a damaged state; or

(3) The greater of one hundred dollars ($100) or an amount twice the listed retail price of the merchandise if the merchant recovers the merchandise in the same condition it was in prior to the conversion.

(b) The civil remedy conferred upon merchants by this section shall not apply if the listed retail price of the merchandise taken was in excess of five hundred dollars ($500).

(c) If a written agreement is entered into between the merchant and the person responsible for damages and penalties pursuant to this section concerning the liability of the person and the payment of the damages and penalties, the agreement and the contents thereof shall remain confidential as long as the parties to the agreement continue to adhere to its terms.

(d) Use of the civil remedy conferred upon merchants by this section shall not be construed to be a violation of § 39-16-604, prohibiting the compounding of an offense.

(e) Any demand in writing or other document sent to an employee covered by this section shall also be sent to the district attorney general of the judicial district in which the offense occurred. If the appropriate district attorney general has not, within ten (10) days from the date the document was sent, objected to the use of this section in lieu of criminal prosecution, the district attorney general shall be deemed to have consented to the use of this section by the mercantile establishment. If the mercantile establishment does not send a written demand or other document to the employee, the district attorney general must be notified and must consent, either orally or in writing, to the use of this section in lieu of criminal prosecution.

(f) Whenever a retail merchant, the merchant's agent or the merchant's employee apprehends an employee who has committed theft as described in subsection (a), the merchant, agent or employee shall not at such time enter into any written agreement to accept civil damages in lieu of criminal penalties or actually accept any such civil damages.