PD-15595-14
COURT OF CRIMINAL APPEALS
March 11, 2015 AUSTIN, TEXAS
Transmitted 3/11/2015 12:17:00 PM
IN THE COURT OF CRIMINAL APPEALS Accepted 3/11/2015 1:00:22 PM
ABEL ACOSTA
OF TEXAS CLERK
THE STATE OF TEXAS, §
APPELLANT §
§
v. § Nos. PD-1596-14 I PD-1595-14
§
AARON LIVERMAN AND §
ROGER LIVERMAN, §
APPELLEES §
STATE'S BRIEF ON THE MERITS
FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
IN CAUSE NUMBER 02-13-00177-CR I 02-13-00176-CR
AND
FROM THE 362ND JUDICIAL DISTRICT COURT
DENTON COUNTY, TEXAS
IN CAUSE NUMBER F-2012-0137-D I F-2012-0136-D
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
Oral argument is requested.
LARA TOMLIN
Assistant Criminal District Attorney
1450 East McKinney, #3100
Denton, Texas 76209
StateBarNo. 24075169
(940) 349-2600
FAX (940) 349-2751
Iara. tomlin@dentoncounty.com
IDENTITY OF PARTIES & COUNSEL
Appellant .................................................. THE STATE OF TEXAS
PAUL JOHNSON
Criminal District Attorney
APPELLATE COUNSEL
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
LARA TOMLIN
Assistant Criminal District Attorney
State Bar No. 24075169
1450 East McKinney, #3100
Denton, Texas 76209
TRIAL COUNSEL
RICK DANIEL
LINDSEY SHEGUIT
Assistant Criminal District Attorneys
Appellees ....... .... ................ ........................ AARON LIVERMAN AND
ROGER LIVERMAN
TRIAL AND APPELLATE COUNSEL
MATTHEW J. KITA
P.O. Box 5119
Dallas, Texas 75208
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ................... ... .... ........................................ i
INDEX OF AUTHORITIES ............................................................................ .. ...... . v
STATEMENT OF THE CASE ................................................................................ . 1
REQUEST FOR ORAL ARGUMENT ..................... ......... .... .................... .. ............. 2
ISSUES PRESENTED FOR REVIEW .................... ............... .................................. 2
STATEMENT OF FACTS ............................. ........................................ .......... ......... 3
SUMMARY OF THE STATE'S ARGUMENTS .................................................... 3
State's First Issue Presented ....................... .. .. .. ..... .... .. ......................... ............. 3
State's Second Issue Presented ............................................ .... ..... ..... ..... ........... 4
ARGUMENT ............................................................................................................ 5
THE STATE'S FIRST ISSUE PRESENTED ......... ..... ................................. ......... .. 5
It was the Legislature's intent under Texas Penal Code section
32.46(a)(l) to criminalize the act of causing a court clerk to file and
record a fraudulent lien ..................................................................................... 5
The history of section 32.46 shows that "execute" was added to
what is now 32.46(a)(l) and the Legislature's addition of "execute"
should be given effect. .......... .. ......... .............................. .. .......................... 5
11
Contrary to the Second District Court Of Appeals' opinion, any
overlap between Texas Penal Code sections 32.46(a)(l) and
32.46(a)(2) in the process of signing, executing, filing or recording
fraudulent documents is allowable ....................................................... 9
Subsection (a)(l) broadly covers any document that can be
executed and subsection (a)(2) narrowly covers only certain types
of fraudulent documents .................................................................. 9
The Punishment of subsection (a)( 1) is a sliding scale in which
the punishment fits crimes involving fraudulent liens, unlike
subsection (a)(2) in which one punishment fits a certain kind of
document. ....................................................................................... 10
Documents that fall under subsection (a)(2) are "filed or
recorded" because they cannot ever be executed, unlike a lien
filed under the procedure found in the Texas Property Code ....... 11
The overlap of "sign or execute" and "file or record" is
allowable as subsection (a)(l) is more broad and encompass-
ing than the narrow and exclusive subsection (a)(2) ..................... 12
The focus of section 32.46 should be on the deception and
the nouns describing the fraudulent documents, not the verbs
describing the process of signing, executing, filing, or recording
those documents, and the false filing of the lien should be a crime
in an effort to protect the integrity of documentary transactions ....... 14
The Second District Court Of Appeals' holding that under the plain
meaning of the words in section 32.46(a)(l), this case does not fall
under section 32.46(a)(l), leads to the absurd result that Appellees'
fraudulent use of liens was not a crime .............................................. 15
The bill analysis from the 1997 amendment to section 32.46
shows the Legislature's concerns with fraudulent documents,
including liens, and documentary integrity ........................................ 19
The Legislature intended to criminalize the act of causing a court
clerk to file and record a fraudulent lien under Texas Penal Code
section 32.46(a)(l) .............................................................................. 20
lll
THE STATE'S SECOND ISSUE PRESENTED ........................ .... ...... ............... . 21
A clerk's actions of filing and recording a lien equate to "signing or
executing" under Texas Penal Code section 32.46(a)(l) ............................... 21
Appellees' statutory liens were only legally effective after
Appellees filed the liens with the county clerk; therefore, the
liens were only executed once the clerk filed and recorded
the liens .................................................................................................... 21
A clerk's actions of filing and recording a lien equate to "signing
or executing" under Texas Penal Code section 32.46(a)(l) .................... 23
PRAYER ................................................................................................................. 24
CERTIFICATE OF COMPLIANCE ...................................................................... 25
CERTIFICATE OF SERVICE ................................................................................ 25
IV
INDEX OF AUTHORITIES
Constitutional Provisions Page
Tex. Const. art. XVI, § 37 ....................................................................................... 21
Statutes, Codes and Rules
Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen.
Laws 941 (amended 1993) (current version at Tex. Penal Code Ann.
§ 32.46 (Vernon Supp. 2014)) ........................................................................ 5, 7, 8
Act of June 19, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen.
Laws 3653 (amended 1997) (current version at Tex. Penal Code Ann.
§ 32.46 (Vernon Supp. 2014)) ................................................................................ 6
Act of May 21, 1997, 75th Leg., R.S., ch 189, § 2, 1997 Tex. Gen. Laws
1046 (amended 2003) (current version at Tex. Penal Code Ann.
§ 32.46 (Vernon Supp. 2014)) ................................................................................ 6
Act of June 10, 2003, 78th Leg., R.S., ch 198, § 2.138, 2003
Tex. Gen. Laws 705 (amended 2007) (current version at Tex.
Penal Code Ann. § 32.46 (Vernon Supp. 2014)) ................................................... 6
Act of June 18, 2003, 78th Leg., R.S., ch 257, § 15, 2003 Tex. Gen.
Laws 1169 (amended 2007) (current version at Tex. Penal Code Ann.
§ 32.46 (Vernon Supp. 2014)) ................................................................................ 6
Act of June 20, 2003, 78th Leg., R.S., ch 432, § 4, 2003 Tex. Gen.
Laws 1680 (amended 2007) (current version at Tex. Penal Code Ann.
§ 32.46 (Vernon Supp. 2014)) ................................................................................ 6
Act of May 17, 2007, 80th Leg., R.S., ch 127, § 4, 2007 Tex. Gen.
Laws 155 (amended 2011) (current version at Tex. Penal Code Ann.
§ 32.46 (Vernon Supp. 2014)) ............................................................................. 6-7
Act of June 17, 2011, 82nd Leg., R.S., ch. 620, § 6, 2011 Tex. Gen.
Laws 1493 (current version) .............................................................. ..................... 7
v
Gov't Code Ann.§ 51.901(Vernon2013) .............................................................. 20
H.J. of Tex., 63rd Leg., R.S., 4534 (1973) ................................................................ 5
House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1185,
75th Leg., R.S. (1997) ... ........................ ............................................. ........... passim
Tex. Penal Code Ann.§ 1.02 (Vernon 2011) ..................................................... 15-16
Tex. Penal Code Ann.§ 1.05 (Vernon 2011) .......................................................... 16
Tex. Penal Code Ann. § 32.21 (Vernon 2011) ............. .......... ................................. 17
Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014) ...................................... passim
Tex. Penal Code Ann.§ 32.46(a)(l) (Vernon Supp. 2014) ............................. passim
Tex. Penal Code Ann.§ 32.46(a)(2) (Vernon Supp. 2014) .............. 9, 10, 11, 12, 18
Tex. Penal Code Ann. § 32.49 (Vernon 2011) .................................................. 16, 17
Tex. Prop. Code Ann.§ 53.001 (Vernon 2007) ..................................................... 21
Tex. Prop. Code Ann. § 53.022-53.056 (Vernon 2007) .......................................... 22
Tex. Prop. Code Ann.§ 53.251-53.260 (Vernon 2007) ................................ .......... 22
Tex. Prop. Code Ann. § 53.021 (Vernon Supp. 2014) ............................................ 22
Tex. Prop. Code Ann. § 53.052 (Vernon 2007) ................................................ 22, 23
Tex. Prop. Code Ann. § 53.057 (Vernon Supp. 2014) ............................................ 22
VI
Cases
Avery v. State
359 S.W.3d 230 (Tex. Crim. App. 2012) ........................................... 10, 12, 13, 17
Boykin v. State
818 S.W.2d 782 (Tex. Crim. App. 1991) ............................................................. 18
Cheney v. State
755 S.W.2d 123 (Tex. Crim. App. 1988) ....................................................... 17, 18
CVN Grp. v. Delgado
95 S.W.3d 234 (Tex. 2002) ...................................................................... 21, 22, 23
DeWitt v. Harris Cnty.
904 S.W.2d 650 (Tex. 1995) .................................................................... 12, 13, 14
Dobbs v. State
434 S.W.3d 166 (Tex. Crim. App. 2014) ....................................................... 7, 8, 9
Harris v. State
359 S.W.3d 625 (Tex. Crim. App. 2011) ....................................................... 7, 8, 9
Liverman v. State
447 S.W.3d 889 (Tex. App-Fort Worth 2014, pet. granted) ......................... 1, 13
Liverman v. State
448 S.W.3d 155 (Tex. App.-Fort Worth 2014, pet. granted) ........................ 1, 13
Muniz v. State
851S.W.2d238 (Tex. Crim. App. 1993) ....................................................... 7, 8, 9
State v. Wiesman
269 S.W.3d 769 (Tex. App.-Austin 2008, no pet.) ................................ 14, 15, 17
Trinity Drywall Sys. v. TOKA Gen. Contrs., Ltd.
416 S.W.3d 201(Tex. App.-El Paso 2013, pet. denied) .............................. 21, 23
Uribe v. State
7 S.W.3d 294 (Tex. App.-Austin 1999, pet. refd) ............................................ 18
vu
Other Authorities
2A Norman J. Singer, Sutherland's Statutes and Statutory Construction
§ 46.06 (5th ed. 1992) ............................................................................................ 13
Merriam-Webster Online Dictionary (21 Oct. 2014) .... ......... .......... ..... ... ....... . 22, 23
Appendices
Appendix A [Orders Denying "State's Motion For Rehearing"]
Appendix B [Orders Granting "States Amended Motion For The Change In
Notation of Opinion to 'Publish"']
Appendix C [ Excerpt from Penal Code in Effect Before 1973 ]
Appendix D [ Excerpt from Penal Code in Effect in 1925 from the Texas State
Law Library Website ]
Appendix E [ Excerpt from 1974 Vernon's Code Annotated ]
Appendix F [ House Comm. on Criminal Jurisprudence, Bill Analysis,
Tex. H.B. 1185, 75th Leg. R.S. (1997)]
viii
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
THE STATE OF TEXAS, §
APPELLANT §
§
v. § Nos. PD-1596-14 I PD-1595-14
§
AARON LIVERMAN AND §
ROGER LIVERMAN, §
APPELLEES §
STATE'S BRIEF ON THE MERITS
TO THE COURT OF CRIMINAL APPEALS:
The State, by and through its Assistant Criminal District Attorney,
respectfully submits its brief on the merits urging that the judgment of the Second
District Court of Appeals be reversed.
STATEMENT OF THE CASE
Appellees were found guilty of securing the execution of a document by
deception on March 21, 2013 (C.R. at 48, 65). Appellees appealed their
convictions, and the Second District Court of Appeals rendered acquittals in both
of their cases on October 9, 2014. Liverman v. State, 447 S.W.3d 889, 890 (Tex.
App-Fort Worth 2014, pet. granted); Liverman v. State, 448 S.W.3d 155, 156
(Tex. App.-Fort Worth 2014, pet. granted). The State subsequently filed motions
1
for rehearing and motions to publish on October 23, 2014; the Second District
Court of Appeals denied the motion for rehearing and granted the motion to
publish on November 20, 2014 (see Appendix A [Orders Denying "State's Motion
For Rehearing"]; Appendix B [Orders Granting "State's Amended Motion For The
Change In Notation Of Opinion to 'Publish"']).
REQUEST FOR ORAL ARGUMENT
Because the issue presented in this case - whether causing a court clerk to
file and record a lien on property is an execution of a document under Texas Penal
Code section 32.46 - has not been addressed by this Court, the State believes oral
argument would be helpful to the courts of the State of Texas and the parties. The
State therefore requests oral argument.
ISSUES PRESENTED FOR REVIEW
It was the Legislature's intent under Texas Penal Code section
32.46(a)( 1) to criminalize the act of causing a court clerk to file and
record a fraudulent lien.
A clerk's actions of filing and recording a lien equate to "signing or
executing" under Texas Penal Code section 32.46(a)(l).
2
STATEMENT OF FACTS
When Katheryn Hall's father and brother, Roger and Aaron Liverman, the
Appellees in this case, were released from prison, Ms. Hall offered them both jobs
at her company and they stayed in Ms. Hall's investment property (3 R.R. at 26,
31-34). Eventually, Appellees' and Ms. Hall's work relationship deteriorated,
Ms. Hall fired Appellees in June 2008, Ms. Hall filed to evict Roger, and on
July 1, 2008, Roger was evicted (3 R.R. at 43, 46). Appellees filed liens against
Ms. Hall's investment property, claiming to have performed work they did not
perform on the property (3 R.R. at 20-22, 47, 49; State's Exhibits 1, 2). Cynthia
Mitchell, the official record-keeper for all Denton County records, testified that her
office filed and recorded Roger's mechanic's lien contract and Aaron's
miscellaneous general-fee document on July 22, 2008, the liens were executed, and
the liens were valid within a week (3 R.R. at 17-24).
SUMMARY OF THE STATE'S ARGUMENTS
State's First Issue Presented
The Legislature intended to criminalize the act of causing a court clerk to
file a fraudulent lien, as evidenced by the inclusion of the word "execute" in
section 32.46(a)(l). The word "execute" should therefore be given effect and any
overlap with the verbs "file or record" is allowable. Additionally, the verbs in
section 32.46 should not be the focus of the section, as the deception and the
3
documents involved should be the focus. The legislative history of section 32.46
further illustrates the Legislature's intent to criminalize Appellees' actions, and a
finding that their actions were not criminal is an absurd result. Therefore, the
evidence was sufficient in this case to convict Appellees' of securing execution of
a document by deception because the clerk's actions amounted to the clerk
executing the fraudulent liens under section 32.46(a)(l).
State's Second Issue Presented
The clerk's action of filing and recording Appellees' lien, equated to
"signing or executing" under Texas Penal Code section 32.46(a)(l) because
Appellees' statutory liens were only legally effective after Appellees filed the liens
with the county clerk. Therefore, Appellees' liens were only executed once the
clerk filed and recorded the liens.
4
ARGUMENT
THE STATE'S FIRST ISSUE PRESENTED
It was the Legislature's intent under Texas Penal Code section
32.46(a)(l) to criminalize the act of causing a court clerk to file
and record a fraudulent lien.
The history of section 32.46 shows that "execute" was added to what is now
32.46(a)(l) and the Legislature's addition of "execute" should be given effect.
The modem version of section 32.46 was first enacted in 1973. Act of June
14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 941 (amended 1993)
(current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)). 1 The
language of the 1973 version of section 32.46 is exactly the same as the current
version of 32.46(a)(l). Id.; see Tex. Penal Code Ann. § 32.46 (Vernon Supp.
2014). The previous version of section 32.46 was sections 1000, 1001, and 1003
of the penal code in effect prior to 1973 (see Appendix C [Excerpt from Penal
Code in Effect Before 1973]). Former section 1000, entitled "Falsely reading
instrument," most closely resembles what is now section 32.46(a)(l ):
Whoever with intent to defraud shall, either by falsely reading, or
falsely interpreting, any pecuniary obligation or instrument in writing,
which would in any manner affect property, or by misrepresenting its
contents, induce any one to sign such instrument as his act, or give
assent to it in such manner as would make it his act, if not done under
mistake, shall be confined in the penitentiary for not less than two nor
more than five years.
In 1973, the Legislature enacted a complete overhaul of the then existing penal
code. H.J. of Tex., 63rd Leg., R.S., 4534 (1973).
5
(Appendix C). See Tex. Penal Code § 32.46(a)(l). 2 Section 1000 of the former
penal code was unchanged from the 1925 version until 1973 when section 32.46
was codified (see Appendix D [Excerpt from Penal Code in Effect in 1925 from
the Texas State Law Library Website]). See Tex. Penal Code§ 32.46.
The punishment scheme for section 32.46 was amended in 1993. Act of
June 19, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen. Laws 3653
(amended 1997) (current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp.
2014)). Before that amendment, all offenses under section 32.46 were classified as
third degree felonies. Id. After that amendment, there was a sliding scale of
punishment based on the value of the property that was at issue in the deception.
Id. The next amendment to section 32.46 came in 1997, with the changes
discussed infra. Act of May 21, 1997, 75th Leg., R.S., ch 189, § 2, 1997 Tex. Gen.
Laws 1046 (amended 2003) (current version at Tex. Penal Code Ann. § 32.46
(Vernon Supp. 2014)). 3
2
Section 1001, entitled "Substituting one instrument for another," dealt with
inducing someone to sign a different instrument then the person intended; and section
1003, entitled "Falsely personating another," dealt with a person impersonating another
in order to sign the assumed name to any instrument in writing (Appendix C).
3
Amendments that followed in 2003 and 2007 specifically addressed medicare
fraud and offenses against the elderly that are not pertinent to the discussion here. Act of
June 10, 2003, 78th Leg., R.S., ch 198, § 2.138, 2003 Tex. Gen. Laws 705 (amended
2007) (current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)); Act of
June 18, 2003, 78th Leg., R.S., ch 257, § 15, 2003 Tex. Gen. Laws 1169 (amended 2007)
(current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)); Act of June 20,
2003, 78th Leg., R.S., ch 432, § 4, 2003 Tex. Gen. Laws 1680 (amended 2007) (current
version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)); Act of May 17, 2007,
6
This Court is to give meaning to every word and phrase in a statute. Dobbs
v. State, 434 S.W.3d 166, 171-172 (Tex. Crim. App. 2014). It must be
''presume[ ed] that every word in a statute has been used for a purpose and that each
word, phrase, clause, and sentence should be given effect if reasonably possible."
Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). Further, it is a
cardinal rule of statutory construction that each sentence, clause, phrase, and word
be given effect as reasonably possible. Muniz v. State, 851 S.W.2d 238, 265 (Tex.
Crim. App. 1993 ).
The prior section that most closely resembles section 32.46, former section
1000, did not include the word "execute" (Appendix C). Section 1000 charged a
crime if an individual defrauded another into signing or giving assent to any
pecuniary obligation or instrument in writing (Appendix C). In 1973, the word
"execute" was added to the statute. Act of June 14, 1973, 63rd Leg., R.S., ch. 399,
§ 1, 1973 Tex. Gen. Laws 941 (amended 1993). The "Practice Commentary"
below the section 32.46 in the first printed version of the 1973 version states that
the 1973 version of section 32.46 is "broader than Penal Code arts. 1000 and I 00 I"
(see Appendix E [Excerpt from 1974 Vernon's Code Annotated]). The Legislature
80th Leg., R.S., ch 127, § 4, 2007 Tex. Gen. Laws 155 (amended 2011) (current version
at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)). The most recent amendment to
section 32.46 in 2011 defined document, but was effective September 1, 2011, and only
covered offenses after that date thus does not apply to this case. Act of June 17, 2011,
82nd Leg., R.S., ch. 620, § 6, 2011 Tex. Gen. Laws 1493 (current version).
7
presumably added "execute" for a purpose and wanted "execute" to be given
effect. See id., Tex. Penal Code§ 32.46(a)(l). If "execute" has a narrow meaning
that only encompasses "sign," then "execute" does not have a purpose and is not
being given effect. See Harris, 359 S.W.3d at 629; Muniz, 851 S.W.2d at 265.
The statute has the phrase "sign or execute" presumably to criminalize both
causing someone to sign a document by deception and causing someone to execute
a document by deception. See Tex. Penal Code § 32.46(a)(l). If the Legislature
had intended for the statute to only cover "sign," it would have not added
"execute" in 1973; just as the Legislature no longer wanted "give assent" to be part
of the statute and did not include that phrase in the 1973 amendment. See Act of
June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 941 (amended
1993); Tex. Penal Code § 32.46(a)(l ).
The history of section 32.46 shows that the word "execute" was added to the
statute in 1973, and this Court should give purpose and effect to "execute" as it is a
word included in the statute for a reason. See Dobbs, 434 S.W.3d at 171-172;
Harris, 359 S.W.3d at 629; Muniz, 851 S.W.2d at 265; Tex. Penal Code
§ 32.46(a)(l); Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen.
Laws 941 (amended 1993 ). Since "sign" immediately precedes "execute" in the
statute, this Court should give the word "execute" a broader definition than just
"sign," as the Legislature added "execute" for a reason. See Tex. Penal Code
8
§ 32.46; Dobbs, 434 S.W.3d at 171-172. Therefore, Appellees' actions of
presenting their liens to the county clerk to file and record the documents should
fall under section 32.46 because they had the clerk execute their statutory liens.
See Tex. Penal Code§ 32.46; Dobbs, 434 S.W.3d at 171-172; Harris, 359 S.W.3d
at 629; Muniz, 851 S.W.2d at 265.
Contrary to the Second District Court Of Appeals' opinion, any overlap between
Texas Penal Code sections 32.46(a)(l) and 32.46(a)(2) in the process of signing,
executing, filing, or recording offraudulent documents is allowable.
Subsection (a)(l) broadly covers any document that can be executed and
subsection (a)(2) narrowly covers only certain types of fraudulent documents.
Subsection (a)(2) of section 32.46 describes a very specific situation in
which a person causes a public servant to file a document purporting to be a
judgment or document from a purported state or United States court, or purported
judicial officers. Tex. Penal Code Ann. § 32.46(a)(2) (Vernon Supp. 2014).
Subsection (a)(2) of section 32.46 was enacted for the specific purpose of
criminalizing the acts of individuals, specifically sovereign citizens, who were
recording or filing fraudulent "common law court" documents with the intention to
harass and intimidate public officials or ordinary citizens (see Appendix F [House
9
Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1185, 75th Leg., R.S.
(1997)]). See Tex. Penal Code Ann.§ 32.46(a)(2) (Vernon Supp. 2014). 4
Subsection (a)(l) more broadly covers any document that is executed, in
contrast to subsection (a)(2), which narrowly covers false documents from false
courts that are filed or recorded. See Tex. Penal Code § 32.46. Since subsection
(a)(1) is more broad, it can encompass certain situations in which the execution of
any document is via the filing and recording of the document. See Tex. Penal Code
§ 32.46(a)(l ).
The Punishment of subsection (a)(l) is a sliding scale in which the punishment fits
crimes involving fraudulent liens, unlike subsection (a)(2) in which one
punishment fits a certain kind of document.
In contrast to subsection (a)(2), wherein any offense under that section is a
state jail felony, the punishment under subsection (a)(l) is dependent on the
monetary value of the property affected by the deception, ranging from a Class-C
misdemeanor to a first-degree felony. See Tex. Penal Code § 32.46. Based on this
punishment scheme, subsection (a)(2) gives a standard punishment for trying to
4
To the extent the Second District Court of Appeals opined that this specific case
would have been better suited filed under 32.46(a)(2), which included the "file or record"
language, the State notes:
An appellate court's belief that an appellant's actions more closely
resemble an uncharged offense than the offense actually charged is not a
legitimate basis for an acquittal. Sufficiency of evidence is reviewed by
comparing the evidence adduced at trial to the elements of the offense
actually charged.
Avery v. State, 359 S.W.3d 230, 237 (Tex. Crim. App. 2012).
10
pass off documents from an illegitimate court, but subsection (a)( 1) bases the
punishment on the monetary value of the damages, which would presumably be
beneficial in the case of a lien where the punishment could be in line with the
monetary amount the defendant defrauded another out of by deception. See Tex.
Penal Code § 32.46. Here, this offense would fit more in line with a punishment
based on monetary value, considering that Appellees attempted to perfect liens
against the victim's property for a specific amount (3 R.R. at 20-22; State's
Exhibits 1, 2).
Documents that fall under subsection (a)(2) are "filed or recorded" because they
cannot ever be executed, unlike a lien filed under the procedure found in the Texas
Property Code.
Further, the filing of "any purported judgment or other document purporting
to memorialize or evidence an act" of a purported court, judicial entity, or judicial
officer that is not expressly created or established under the Texas or United States
Constitutions does not execute the purported judgment or document by putting the
judgment or document in its final legally enforceable form. See Tex. Penal
Code § 32.46(a)(2). It is not executed because the documents under section
32.46(a)(2) can never be executed or put in legally enforceable form because the
court, judicial entity, or judicial officer they purport to come from does not legally
exist. See Tex. Penal Code § 32.46(a)(2). Documents that fall under section
32.46(a)(2) are always fraudulent and never valid, and it is therefore a crime to file
11
or record them. See Tex. Penal Code§ 32.46(a)(2). On the other hand, any person
who files a lien, and follows the procedure set forth in chapter 53 of the Texas
Property Code, has executed a valid lien against the property in question even if
the basis of that lien later is proved fraudulent. See Texas Property Code Ann. §§
53.001-53.260 (Vernon 2007, Vernon Supp. 2014). Thus, when a person deceives
another into filing, and therefore executing, a lien that is fraudulent with the intent
to defraud or harm another, they have violated section 32.46(a)(l). See Tex. Penal
Code§ 32.46(a)(l ).
The overlap of "sign or execute" and "file or record" is allowable as subsection
(a)(l) is more broad and encompassing than the narrow and exclusive subsection
(a)(2).
There are numerous and sometimes broad criminal statutes in the Texas
Penal Code, and frequently an act can violate more than one statute. See Avery v.
State, 359 S.W.3d 230, 236 (Tex. Crim. App. 2012). This overlap in statutory
provisions is allowable. Id. Therefore, it is allowable for actions that would fall
under a definition of "file or record" in one section of the statute to also fall under
a definition of "sign or execute" in another section of the statute.
See id.; Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014).
In its statutory interpretation of section 32.46, the Second District Court of
Appeals cites language used in De Witt v. Harris County: "when the Legislature
uses certain language in one part of the statute and different language in another,
12
the court assumes different meanmgs were intended." Liverman v. State,
447 S.W.3d 889, 891-892 (Tex. App.-Fort Worth, 2014, pet. granted), (citing
DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995), (quoting 2A Norman J.
Singer, Sutherland's Statutes and Statutory Construction § 46.06 (5th ed. 1992);
Liverman v. State, 448 S.W.3d 155, 158 (Tex. App.-Fort Worth 2014, pet.
granted), (citing DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995),
(quoting 2A Norman J. Singer, Sutherland's Statutes and Statutory Construction
§ 46.06 (5th ed. 1992). The State asserts that an interpretation that this case falls
under section 32.46(a)(l) does not violate this canon of statutory construction
because it is allowable for an action to overlap and be interpreted under either
section, despite the differing verbs used to describe the actions. See De Witt,
904 S.W.2d at 653; see also Avery, 359 S.W.3d at 237. 5
Subsection (a)(l) broadly covers the execution of any document effecting
property, which includes the lien in this case, and subsection (a)(2) narrowly
covers only the filing or recording of a purported judgment or document from a
purported court or judicial officer. See Tex. Penal Code § 32.46. Any overlap of
"sign or execute" with "file or record" is allowable. See Avery, 359 S.W.3d at 236.
5
The court in De Witt found that one subsection in that statute at issue was broader
than the other, the broader statue encompassed the less broad subsection, and the absence
of certain language in the broader subsection did "not require the conclusion that the
Legislature intended something different" for the broad subsection "than was specified"
for in the less broad section. DeWitt, 904 S.W.2d at 653.
13
Furthermore, the absence of certain language in the broader subsection (a)(l) does
not require the conclusion that the Legislature intended different things in each
subsection. See DeWitt, 904 S.W.2d at 653.
The focus of section 32.46 should be on the deception and the nouns describing
the fraudulent documents, not the verbs describing the process of signing,
executing, filing, or recording those documents, and the false filing of the lien
should be a crime in an effort to protect the integrity of documentary
transactions.
The gravamen of section 32.46 is the deception. State v. Wiesman,
269 S.W.3d 769, 776 (Tex. App.-Austin 2008, no pet.). The statute defines two
ways in which a person can commit the offense:
( 1) causing another to sign or execute any document affecting
property or service or the pecuniary interest of any person; or
(2) causing or inducing a public servant to file or record any
purported judgment or other document purporting to memorialize or
evidence an act, an order, a directive, or process of a purported court
or judicial officer not created or established under state or United
States law.
Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014). While the Second District
Court of Appeals put the focus on the verbs in the two ways of committing this
offense, the focus should be on the nouns: the "any document" and the "purported
judgment or other document." See Tex. Penal Code § 32.46. The Third District
Court of Appeals has found that the purpose of section 32.46(a)(l) is to protect the
integrity of documentary transactions:
As part of a chapter defining fraud offenses, penal code
section 32.46(a)(l) prohibits the fraudulent use of a broad variety of
14
deceptive practices to induce a person to sign or execute any
document affecting the property, service, or pecuniary interest of any
person, who may or may not be the person deceived. The statute thus
serves to protect the integrity of documentary transactions by
punishing those who use such transactions to defraud or harm another.
Wiesman, 269 S.W.3d at 776. Thus, the purpose of this statute is to discourage
people from harming others through fraudulent documents. See id. In order to
protect documentary integrity, it should be a crime when a person files a fraudulent
lien. See id. The focus should not be on the "sign or execute" and the "file or
record" verbs found in the subsections, but on the documents that are covered by
the statute. See id.; Tex. Penal Code § 32.46. Here, Appellees filed fraudulent
liens, and this action is the precise action that section 32.46(a)(l) was intended to
criminalize. See Wiesman, 269 S.W.3d at 776; Tex. Penal Code § 32.46.
The Second District Court Of Appeals' holding that under the plain meaning of
the words in section 32.46(a)(l), this case does not fall under
section 32.46(a)(l), leads to the absurd result that Appellees' fraudulent use of
liens was not a crime.
Under the Second District Court of Appeals' reasoning, Appellees' actions
of filing false liens were not crimes because if this case is not a crime under
section 32.46( a)( 1), there is not another section under which this specific crime
would fall. The objectives of the Texas Penal Code are "to establish a system of
prohibitions, penalties, and correctional measures to deal with conduct that
unjustifiably and inexcusably causes or threatens harm to those individual or public
interests for which state protection is appropriate." Tex. Penal Code Ann. § 1.02
15
(Vernon 2011 ). The Code is not to be strictly construed, but "shall be construed
according to the fair import of their terms, to promote justice and effect the
objectives of the code." Tex. Penal Code Ann. § 1.05 (Vernon 2011). To deal
with Appellees' conduct that harmed Ms. Hall, section 32.46 must be construed
according to the fair meaning of its language to promote justice for Ms. Hall. See
Tex. Penal Code §§ 1.02, 1.05.
This case would not fit under section 32.46(a)(2), as the sworn affidavits
filed by Appellees were not documents purported to be from a false court. See
Tex. Penal Code § 32.46. 6 This case also would not fall under
section 32.49, refusal to execute release of a fraudulent lien or claim, as there was
no evidence that the victim followed the necessary steps under section 32.49(a)(2)
by sending notice that she requested Appellees to release the liens. See Tex. Penal
Code Ann. § 32.49 (Vernon 2011 ). While if the victim had followed the
procedures necessary in section 32.49 and there may have been a case against
Appellees if they had not released the liens, Appellees were the ones who filed the
6
Subsection (a)(2) was added to Section 32.46 in 1997 in an effort to criminalize
the filing of fraudulent judgments and other documents purporting to create invalid liens
against public officials and private citizens (Appendix F). The new subsection added the
more specific crime of filing sovereign citizen documents but also discussed the ongoing
problem of people filing false liens with the county clerks in the state (Appendix F).
Despite subsection (a)(l) already being in existence before the 1997 amendment, the
Legislature intended to criminalize Appellees' actions, as evidenced by the bill analysis,
and this case falls under the portion of the statute that was in existence before the 1997
amendment (see Appendix F). See Tex. Penal Code§ 32.46.
16
fraudulent liens regardless of whether the victim asked for a release per the statute,
and Appellees should still be criminally responsible for their actions. See Tex.
Penal Code §§ 32.46, 32.49. Holding otherwise would place a further burden on
the victim, in addition to already having the false lien filed against her property.
See Tex. Penal Code §§ 32.46, 32.49. In addition, that section of the Code is
criminalizing the refusal to execute a release of the fraudulent lien, and section
32.46 criminalizes acts that put fraudulent liens into effect in an effort to protect
documentary integrity. See Tex. Penal Code § 32.46, 32.49; Wiesman, 269 S.W.3d
at 776. Appellees' actions would also not fall under Texas Penal Code section
32.21, forgery, as Appellees did not make the false liens purporting to be the act of
another, to have been executed at a time or place or in a numbered sequence other
than was in fact the case, or that the liens were copies of an original that did not
exist. See Tex. Penal Code Ann. § 32.21 (Vernon 2011 ).
Even if this Court finds that Appellees' actions could have fallen under
another statute in the Texas Penal Code, this Court should try to harmonize the two
statutes, but the more specific statute shall govern any more general statute.
Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988); see Avery v. State,
359 S.W.3d 230, 236-237 (Tex. Crim. App. 2012) (overlapping statutory
provisions should not be held mutually exclusive). Thus, here, where section
32.46(a)(l) specifically deals with someone having another execute a document by
17
deception, Appellees' actions should fall under 32.46(a)(l). See Tex. Penal Code§
32.46(a)(l); Cheney, 755 S.W.2d at 126.
"When a statute is unambiguous, we must give effect to the plain meaning of
the words unless doing so would lead to absurd results." Uribe v. State,
7 S.W.3d 294, 296 (Tex. App.-Austin 1999, pet. refd) (court found that in an
"indecency with a child by exposure" case, it did not matter whether the child saw
the appellant's genitals; the accused's intent was controlling); see Boykin v. State,
818 S.W.2d 782, 785 (Tex. Crim. App. 1991). If a statute is ambiguous or leads to
absurd results, a court may consider legislative history. Boykin, 818 S.W.2d at
785-86. When the Legislature added subsection (a)(2) to section 32.46, it
discussed the problem of individuals filing fraudulent documents purporting to
create liens on real property with county clerks throughout the state (Appendix F).
These types of filings would not clearly fit under section 32.46(a)(2) if they were
not from a purported court or judicial officer, but the Legislature wanted these acts
to be criminal (Appendix F). See Tex. Penal Code Ann. § 32.46(a)(2) (Vernon
Supp. 2014). Therefore, the county clerk executed Appellees' statutory liens;
another reading of section 32.46 would lead to the absurd result of Appellees not
committing a crime by filing the fraudulent liens (3 R.R. at 32-34, 52, 54-63, 109-
10, 114, 121-22, 128-29, 131, 133-34, 151-52, 154, 158; State's Exhibits 1-3). See
Uribe, 7 S.W.3d at 296; Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014).
18
Under the Second District Court of Appeal's opinion, the fraudulent conduct by
Appellees, conduct that compromises the documentary integrity of liens, is not a
cnme.
The bill analysis from the 1997 amendment to section 32.46 shows the
Legislature's concerns with fraudulent documents, including liens, and
documentary integrity.
The bill analysis to the 1997 amendment to section 32.46 began by
discussing problematic fraudulent filings (Appendix F). The analysis cited both
filings that were invalid judgments from unrecognized courts, and liens, like the
fraudulent filing here (Appendix F). The analysis explained that both public and
private officials have been harmed and that these fraudulent documents are
"clogging the channels of commerce" (Appendix F). The analysis then went on to
discuss each of the bill's statutes and amendments to statutes to try to combat the
fraudulent document problem, including statutes regarding documents stimulating
the legal process, failure to release liens, perjury, tampering with government
records, impersonating public officers, fraudulent financial statements, fraudulent
judgment liens, and civil remedies available for persons harmed by fraudulent
documents, liens, and/or claims (Appendix F). All of these statutes and
amendments illustrate the Legislature's concern with fraudulent documents
(Appendix F).
19
Sections 13, 14, and 19 further highlight this intention, specifically in the
context of the Legislature's concern over fraudulent liens (Appendix F). Section
13 and 19 requires district and county clerks to complete one hour of continuing
education regarding fraudulent court documents and fraudulent document filings.
Id. Section 14 added a subsection to the Government Code section governing
clerks of courts that included steps for clerks to take when they have a reasonable
basis to believe that a lien filed was fraudulent, including giving the owner of the
subject property notice of the fraudulent lien. Id.; see Gov't Code Ann. § 51.901
(Vernon 2013).
This bill analysis clearly shows the Legislature's concern with fraudulent
documents being filed with clerks, including liens (see Appendix F). The 1997
legislature added and amended many statutes in order to prevent, criminalize, and
give relief to the victims of fraudulent liens (see Appendix F). Given the
Legislature's concern with fraudulent liens, the Legislature would have certainly
wanted Appellees' actions to be criminal, and would not want to limit section
32.46(a)(l) so that individuals who present fraudulent liens to clerks do not fall
under section 32.46(a)(l) (see Appendix F). Tex. Penal Code§ 32.46.
The Legislature intended to criminalize the act of causing a court clerk to file
and record a fraudulent lien under Texas Penal Code section 32.46(a)(l).
The Legislature included "execute" in section 32.46(a)(l) for a reason, and
"execute" should be given effect. The verbs "file or record" and "sign or execute"
20
may overlap and should not be the focus of section 32.46 over the deception and
the documents involved in the deception. The Legislature intended to criminalize
Appellees' actions as evidenced above, and finding that their actions were not
criminal is an absurd result. Therefore, the evidence was sufficient in this case to
convict Appellees of securing of execution of a document by deception because the
clerk's actions amounted to the clerk executing the fraudulent liens under section
32.46(a)(l ).
THE STATE'S SECOND ISSUE PRESENTED
A clerk's actions of filing and recording a lien equate to "signing
or executing" under Texas Penal Code section 32.46(a)(l).
Appellees' statutory liens were only legally effective after Appellees filed the liens
with the county clerk; therefore, the liens were only executed once the clerk filed
and recorded the liens.
Although a constitutional lien is self-executing in Texas, a statutory lien
exists through compliance with applicable statutes. Trinity Drywall Sys. v. TOKA
Gen. Contrs., Ltd., 416 S.W.3d 201, 207-09 (Tex. App.-El Paso 2013,
pet. denied); Tex. Const. art. XVI, § 37; Tex. Prop. Code Ann. § 53.001
(Vernon 2007). There are no notice or filing requirements for a constitutional lien
to attach to property, but the constitutional lien is not self-enforcing and statutes
provide for the enforcement of a lien. CVN Grp. v. Delgado, 95 S.W.3d 234,
246-47 (Tex. 2002). "[T]he statutory lien has become the primary vehicle for
contract or protection." Id. at 247; Tex. Prop. Code Ann. §§ 53.001-53.260
21
(Vernon 2007, Vernon Supp. 2014). Chapter 53 of the Texas Property Code sets
forth such a lien, and under that chapter a lienholder must meet specific
requirements for perfecting and enforcing the lien, including specific filing and
notice requirements. Delgado, 95 S.W.3d at 247; see Tex. Prop. Code Ann. §§
53.021, 53.057 (Vernon Supp. 2014); Tex. Prop. Code Ann. §§ 53.022-53.056,
53.251-53.260 (Vernon 2007). Under section 53.052, a person claiming the lien
must file an affidavit with the county clerk to perfect the lien. Tex. Prop. Code
Ann. § 53.052 (Vernon 2007).
Here, in order for Appellees to enforce their purported statutory liens, they
had to perfect them; that is, they had to file the liens with the county clerk in order
to have the ability to enforce the liens under the Property Code. See Delgado, 95
S.W.3d at 246-47; Tex. Prop. Code§ 53.052. "Execute" is defined as "to carry out
fully: put completely into effect" or "to perform what is required
to give validity to." "execute." Merriam-Webster Online Dictionary. 2014.
http://www.merriam-webster.com/dictionary/execute (21 Oct. 2014). When the
county clerk filed the liens, she was performing what was necessary to give
validity to Appellees' statutory liens and put those statutory liens into effect
towards subsequent purchasers. See id.; Tex. Prop. Code§ 53.052. By filing and
recording Appellees' liens, the county clerk "executed" the lien affidavits under
the Texas Property Code. See Tex. Prop. Code § 53.052;
22
"execute." Merriam-Webster Online Dictionary. 2014. http://www.merriam-
webster.com/dictionary/execute (21 Oct. 2014). While it is true that Appellees
would have had self-executing liens against the victim in this case if they had filled
out affidavits and kept them in a drawer, they only had valid statutory liens once
the affidavits were filed and recorded; thus, those statutory liens were executed
once the clerk filed and recorded the affidavits. See Tex. Prop. Code § 53 .052;
Delgado, 95 S.W.3d at 246-47; Trinity Drywall Sys., 416 S.W.3d at 207-09.
A clerk's actions offiling and recording a lien equate to "signing or executing"
under Texas Penal Code section 32.46(a)(l).
A statutory lien is only valid and executed once it is filed and recorded; thus,
when a clerk files and records a lien, that lien is executed under
section 32.46(a)(l). See Tex. Penal Code§ 32.46(a)(l); Tex. Prop. Code§ 53.052.
23
PRAYER
WHEREFORE, the State of Texas prays that the Court reverse the judgment
of the Second District Court of Appeals, find that the evidence is sufficient to
uphold Appellees' convictions, and affirm the judgment of the trial court.
Respectfully submitted,
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appella Division
1stant Cri · · al District Attorney
1450 East McKinney, #3100
Denton, Texas 76209
State Bar No. 24075169
(940) 349-2600
FAX (940) 349-2751
24
CERTIFICATE OF COMPLIANCE
The State certifies that the State's Brief on the Merits in the instant cause
contains a word count of 5284, said count being generated by the computer
program Microsoft Word that was used to prepare the document.
CERTIFICATE OF SERVICE
A true copy of the State's brief has been sent by United States Mail, postage
prepaid, to counsel for Appellee, Matthew J. Kita, P. 0. Box 5119, Dallas, Texas,
75208, and to Matthew Paul, State Prosecuting Attorney, P.O. Box 12405, Austin,
Texas, 78711-2405, on this, the 11th day of March 2015.
istrict Attorney
25
APPENDIX A
[Orders Denying "State's Motion For Rehearing"]
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00177-CR
AARON LIVERMAN APPELLANT
v.
THE STATE OF TEXAS STATE
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-0137-D
ORDER
We have considered the "State's Motion For Rehearing."
It is the opinion of the court that the motion for rehearing should be and is
hereby denied and that the opinion and judgment of October 9, 2014 stand
unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record .
SIGNED November 20, 2014.
FILE COPY
Isl Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ .
2
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00176-CR
ROGER LIVERMAN APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-0136-D
ORDER
We have considered the "State's Motion For Rehearing."
It is the opinion of the court that the motion for rehearing should be and is
hereby denied and that the opinion and judgment of October 9, 2014 stand
unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.
SIGNED November 20, 2014.
FILE COPY
Isl Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
2
APPENDIXB
[ Orders Granting "State's Amended Motion For The Change
In Notation Of Opinion To 'Publish"']
r'ILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00177-CR
AARON LIVERMAN APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-0137-D
ORDER
We have considered the "State's Amended Motion For The Change In
Notion Of Opinion To "Publish"."
The motion is GRANTED. It is ordered that the court's opinion of October
9, 2014 shall be published.
The clerk of this court is directed to transmit a copy of the order to the
attorneys of record and all interested parties.
SIGNED November 20, 2014.
FILE COPY
Isl Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
2
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00176-CR
ROGER LIVERMAN APPELLANT
v.
THE STATE OF TEXAS STATE
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2012-0136-D
ORDER
We have considered the "State's Amended Motion For The Change In
Notion Of Opinion To "Publish"."
The motion is GRANTED. It is ordered that the court's opinion of October
9, 2014 shall be published.
The clerk of this court is directed to transmit a copy of the order to the
attorneys of record and all interested parties.
SIGNED November 20, 2014.
FILE COPY
Isl Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
2
APPENDIX C
[ Excerpt from Penal Code in Effect Before 1973 ]
VERNON'S ANN OT A TED
PENAL CODE
OF THE
ST A TE OF TEXAS
•
Volume 2A
Penal Code
Articles 979 -1268
TRADE AND COMMERCE
OFFENSES AGAINST THE PERSON
:ICANBAS CITY• MO.
VERNON LAW BOOK COMPANY
'
:::; --- r
l
•
Copyright, l %1
by
VERNON LAW BOOK COMPAr~Y
2A Tex.Peno.I St.
Art. 1000 TRADE AND COMMERCE Tit. H
Art. 1000. [941] [546] [447] Falsely reading inst.n1ment
Whoever with intent to defraud shall, either by fa ls ly r e ~1di ngr
or falsely interpreting, any pecuniary obligation or in;.:.;trum cnt in
writing, which would in any manner affect property, or by m is r ~ p1·e-
senting its contents, induce any one to sign such instrument ns his ad,
or give assent to it in such manner as would make it his Get. if nc t done
under mistake, shall be confined in the penitentiary n ot le::::s l h ; n two
nor more than five years. O.C. <147.
Notes of Decisions
E'.'ll fdence 3 2. Offense
Offe" ~e 2
Th~ rn~rc fact thr.t n ~ ,1 :!1501 lV' on
Va0d1 ty 1
Hs. frt.(f~ tna;r }~'.\Yf!. b~·.:: 11 h i t r•;idO cl ~1 i-; n
n1ortg,1pJ \Yill n r.-' ~ prr.11•!ud1;.· :\ prl
title, change the fact t hat ti1-:) iru :tnin1 i' n L
li'onn, 1ndl 1ment. Wiii 011'• T~iu Crim- was legitirnre .. ('n\ilih' a writ-
llUluU nallr lnWinnrle. notwltlut&l!ding WI& ten instrument aft'ectin~ propeny, e\'i rk!l •'<:l
of quoted word. toLarcy v. Slate (19.67) or senral extraneous offe1rnr:.'; of lt:fend:•nt
1~5 er.a H, ali2 s. w.~ -120. was at by, !ULY. ofl\cerwi~;en~ regui~ed or pernrltted by Jaw
mg five thousal\d !lollais ot · State, h,e shall be fined not exceed-
than o.ne nor more tb.an fb.e · hri~ri~oned in the penitentiary not less
Y-earr. A may lJe alleged
conjunctiY<..,h'. though they are incon3istent
with each other. \Vhere the prosecution
rel1ed on Uw dcstniction of doeumr.nts in
Library references tho keepini; of 11 E>tn.te o/llccr for COlll'iC·
li'Ol';; Ny <3=;>15. lion, lt wus not nuce;,ol'a.l'y to allcl;'e the
C.J.i-1. F11n;<)ry § 28. m:u111cr of destruclion, and allegations or
Fo1·m, i11()ktnic11t "'illi'on's T»xa• Crim- at leration were surplusage, so that the fn -
i110.! Forms, Gth Ed. , § l'.!GO. rl!ctmen L was not invnlld for failure lo
:; la.Lo the manner o! alteration. Smith v.
1. Off ens~ s ta.to (1920) 87 Cr.R. 219, 220 S. W. 552.
Tht1 wril.len answers of nrplic:i.nt~ for
tf~>.l.t: h(·rn' cerl i fkn.t•"~ to ; l<"d on 4. Evidence
Oxy hhn unUl dt"': li\'nr~'·d to the !~tat(! 111!,,sioncri;' court concerning purchase of
hoari..l t1f exan1I!11 ~ rs fnr Rf'aclit1g-, tu·..; pn~ road machirwry o.nd lrnd erased from
PH'i< l'1' q11ir<':.l by la.w to he kept hy ·~ !ilalo rnir1utes of meeting recital that he h11d re·
oJU c;t: r·. ~o 1h:tt Oi~iJ· n1aliciou.s d(1 ~l t 1 ucti 1 'Jl tired from courtroom and rC>fu~e•l 10 net
h; :1.. f,•louy. Aftc·r th~ :ln .~ \\·0rs of uppli-- i.1~ chn,irman, and other recital~ ::>howing
cn.nt~ for u:~ar-hcrs" <''~rl ith·n.tP~ t.o the ax~ ek<'lion of ano ther chairma.n, evi•.lenc~
aml11 1t tio n que.~tion;; lmu bcu1 ublic
tlHlY worn th(·r<'urtcr in hi~ kei.>ping, so thnt reenrtl. Garlington '" St.ate (1937) 133 Cr.
O•H' who proc1.H't:•1 thrnn from th(' expn''"' R 213, JO~ S.W.2d 752.
!"Olli()ttny,hy which iJwy were d1ipp,~d 10
tho :StUle S1lJl<'rin tP l\t] (>Jl t, 'll~il clo ~ tl'Oy••d 5. Instructions
t\\('l\l, Was g'Ui\t~· o( clr s troyilll~ •.1oc\l!TI~' lilS
In pros0c11tion of county JudgH for al-
in th!' kC>C'pini;:- of rl 1iul,\i<' ofn.;,'r. Smith
trolrn or n•:<·oun t wa..~
not "1nutil11Uon, de5trudion, defa ci ng-, or cot1rtroom and refused to a.ct as chairman
nltcril'll; of Ptihlic record" within th l~ nrti- a.nd other recitals showing eJecUon or an·
olher chafrma.n, Ju.:op:neir:i ''· State (1.933) 1~ '.! Cr.It. quitto.l if jury entertained 11. reasonable
449, G~ S. W.M &'.Jl.
doubt on question whether he believed ho
hull ri;:ht to corr~~t minutes by making
2. - ''Public record" erasure should have been submitted,
could not be '5lY1"•.l "pultllc
C'u"hbook wh•1r..; e!mrg-o submitting that Issue em-
record." within this n1·ticlc until ~orn··~!Jlnc.;" hnti;·f>
hnd b<>en recorded therein bv .! •OIJt;~ on~ jwlg-0 thnn evi.J<'nce wnrranted. Ga.rllni;--
authorize;ogueira ·,., Slate to!l v. Sta.to (1937) 133 Cr.R. 21S, 109 !'i."'·
Cln3) 123 Cr.R. HO, 59 S. W 2d 831. 2d 752.
Art. 1003. [944] [548] [449] Falsely pcrsonating another
If one shall falsely pcrsonate another, whether bearing the same
name o · not, and, in such assumed character, shall give authority to
any pe1'son to sign such assumed name to any instrum ~nt in writing
which, if genuine, would create, increase, climi.n ish 01· discharge any
Pecuniary obligation, or would transfer, or in any way affect any
P 'o}lerty, he shall be confined in the penitentiary not less than two nor
rnere than seven years. O.C. 449.
Library ro1'erenc11a: '.False Personatlon e=>l, 2; C.J.S. False Personallon H 1-3.
Form: fn lottnent. Wlllson's Texas Crlmlne.t Forms, 6th Ed., § 1261.
IS9
APPENDIXD
[Excerpt from Penal Code in Effect in 1925 from the Texas
State Law Library Website ]
PENAL CODE .
OF THE
STA TE OF TEXAS
ADOPTED AT THE REGULAR SESSION OF THE
THIRTY-NINTH LEGISLATURE
1925
PUBLISHED BY AUTHORITY OF THE STATE OF TEXAS
l. C. IALOWlft I S'lHI
ITATI P•INTlH
AUtTIN
A BILL
TO BE ENTITLED
"AN ACT to Adopt and Establish a 'PENAL ConE' and a
'CODE OF CRIMINAL PROCEDURE' for the State of Texas."
Be It ·'Enacted by the Legislature of the State of Te~as:
SECTION 1. The following Titles, Chapters and Ar-
ticles are hereby adopted and shall hereafter constitute
and be known as the PENAL Coo·E of the State of Texas:
OFFENSES AFFECTING WRITTEN INSTRUMENTS. 235
TITLE 14
TRADE AND COMMERCE.
Chapter Chapter
Offenses Affecting Written In- Blue Sky Law.. . . . . . . . . . . . 8
struments . . . . . . . . . . . . . . 1 Agricultural an•d Livestock
Forgery of Land Titles, Etc. . 2 Pools . . . . . . . . . . . . . . . . . . 9
Counterfeiting . . . . . . . . . . . . 3 Protecting Movement of Com-
Warehouses and Cotton. . . . . 4 merce . . . . . . . . . . . . . . . . . 10
Weights and Measures. . . . . . 5 Gasoline and Petroleum Pro-
Labels, Trade Marks, Etc... , li ducts . . . . . . . . . . . . . . . . . . 11
Assumed Nanie . . . . . . . . . . . . 7 Miscellaneous Offenses . . . . . . 12
CHAPTER ONE.
OFFENSES AFFECTING WRITTEN INSTRUMENTS.
Article 'Article
"l<"orgery" . . . ........ , . . . . . . . • . . 979 Flllln~ up over signa.ture ........ 992
Forgery of will .................. 980 P e r.::;on not guilty, wh en. . . . . . . . . ~93
Forgery of obligation of foreign Altering teacher's ci!rtific<1-te ...... 994
government . . . . . . . . . . . . . . . . . . 981 Penn.ltv f r forP.'ery . . . . . . . . . . . . . . 995
Passing obligation of foreign gov- Passing forged Instrument ........ 996
ernment ...................... 982 Preparing· implements for forg-ery. 997
Possession' of obligation of foreign Possession with Intent to pass ... 998
government ...........• , . , . . . . 983 Evidence In case of bank h!lJs .... 999
Alteration also forgery.. . . . . . . . . . 98 4 Falsely reading instrument ....... 1000
Intent necessary . . ............. !lilo Substituting one instrument for
"Instrument in writing", ••..••••• 986 another . . .................... l 001
"Alter" . . ... ·...........•....... 987 Altering or Injuring public rec-
"Another" ..•..........•....... , 988 ord.!! ...•.•..•..•......•••••••• 1002
"Pecuniary obli~ation". . . . . . . . . . . 989 Falsely persr•nntlng anotl-ier ...... 1003
"Transferred or in any manner False personaUon In acknowledg-
have affected" ...· .........•..... 990 ments ........................ 1004
All participants guilty ........... 991 Procedure . . ....... . ............ 1005
Art. 979. [924] [530] [431] "Forgery".-He is guilty of
forgery who without lawful authority, and with intent to injure
or defraud, shall make a false instrument in writing purporting
to be the act of another, in such manner that the false instru-
ment so made would (if the same were true) have created,
increased, diminished, discharged or defeated any pecuniary
obligation, or would have transferred, or in any manner have
affected any property whatever. [O. C. 431.]
Art. 980. Forgery of will.-Any person who executes what
purports to be the last will and testament of another, without the
consent of such other person, is also guilty of forgery. Prose-
cution under this article may be begun at any time after such
forgery is committed and within five years after the death of
the purported testator, but not thereafter. [Acts 1919, p. 119.]
Art. 981. Forgery of obligation of foreign government.-He
is guilty of forgery who without lawful authority and with in-
tent to injure or defraud shall falsely make, alter forge or
counterfeit any bond, certificate, obligation, or instrument in
writing having a value or purporting fo be of value issued by
or purporting to be issued by or under the authority or direc-
tion of any foreign government or de facto foreign government,
or any officer or agent of any foreign· government or de facto
foreign government, or any person or persons claiming to act
by or under the authority of any foreign government or de facto
foreign government or claiming by right of any office, military
.23.6 TRADE AND COMMERCE .
or civil, to have a right in any foreign country to issue money,
bills of exchange, notes, or any papers circulating as money or
mediums of exchange in any foreign country or portion thereof,
or purporting to be redeemable in money or other thing of value,
and any person violating any of the provisions of this ~rticle
shall be punis'1ed as provided in article 995. [Act Sept. 16,
1914.]
Art. 982. Passing obligation of foreign: government.-If any
person shall knowingly pass as true or attempt to pass as true
any such forged instrument in writing as is mentioned and
defined in article 981 he shall be punished as provided by article
996. [Act Sept. 16, 1914.]
Art. 983. Possessing of obligation of foreign government.-
If any person shall knowingly have in his possession any instru~
ment of writing, the making of which is by law an offense under
the provisions of article 981 hereof, with intent to use or pass
the same as true, he shall be punished as is provided in article
998. [Act Sept. 16, 1914.]
Art. 984. [925] [531] [ 432] Alteration also forgery.-He
is also guilty of forgery who, without lawful authority, and with
intent to injure or defraud, shall alter an instrument in writing
' then already in existence, by whomsoever made, in such manner
that the alteration would (if it had been legally made) have
created, increased, diminished, discharged or defeated any pecu-
niary obligation, or would have transferred, or in any manner
have affected any property whatever. [O. C. 432.]
Art. 985. [926] [532] [433] Intent necessary.-The false
making or alteration, to constitute forgery, must be done with
intent to injure or defraud, and the injury must be such as
affects one pecuniarily, or in relation to his property. [O. C.
442.] .
Art.· 986. [927] [533] [ 434] "Instrument in writing".-
The words "Instrument in writing," as used in this chapter, in-
clude every writing purporting to make known or declare the
will or intention of the party whose act it purports to be,
whether the same be of record or under seal or private signa-
ture, or whatever other forni it may have. It must be upon
paper or parchment, or some substance, made to resemble either
of them. The words may be written, printed, stamped or made
in any other way, or by any other device. And the words "in
writing," "write," "written," include all these modes of mak~
ing. An instrument, partly printed or stamped, and partly
written, is an instrument in writing. In order to come within
the definition of forgery, the signature, when made otherwise
than by writing, must be made to resemble manuscript. [O. C.
434.]
Art. 987. [928] [534] [ 435] "Alter"-The word "alter,"
in the definition of forgery, means to erase or obliterate any
wol'd, letter or figure, to extract the writing altogether, or to
substitute other words, letters or figures for those erased, oblit-
erated or extracted, to add any other word, letter or figure to
OFFENSES AFFECTING WRITTEN INSTRUMENTS. · 237
the original instrument, or to make any other change whatever
which shall have the effect to create, increase, diminish, dis-
charge or defeat a pecuniary obligation, or to transfer, or in
any other way affect any property whatever. [0. C. 438.]
Art. 988. [929] [535] [ 436] "Another'' .-The instrument
must purport to be the act of "another," and within the mea~
ing of this word, as used in defining forgery, are included this
State, the-United States, or either of the States or Territories
of the Union; all the several branches of the government or
either of them; all public or private bodies, politic and corpo-
rate; all courts; all officers, public or private, in their official
capacity; all partnerships in professions or trades; and all other
persons, whether real or fictitious, except the person engaged in
the forgery. [0. C. 439.]
Art. 989. [930] [536] [ 437] ''Pecuniary obligation". -
"Pecuniary obligation" means every instrument having money
for its object, and every obligation for the breach of which a
civil action .for damages may be lawfully brought. [0. C. 440.J
Art. 990. [931] [537] [ 438] "Transferred or in any man-
ner have affected".-By an instrument which would "have trans-
ferred or in any manner have affected" property, is meant every
species of conveyance, or undertaking in writing, which sup ..
poses a ri~ht in the person purporting to execute it, to disppse
of or change the character of property of every kind, and which
can have such effect when genuine. [0. C. 441.]
Art. 991. [932] [538] [ 439] All participants guilty.-One
is guilty of making or altering, who, knowing the illegal purpose
intended, shall write, or cause to be written, the signature, or
the whole or any part of a forged instrument. All persons en-
gaged in the illegal act are deemed guilty of forgery. [0. C.
435.]
Art. 992. [933] [539] [ 440] Filling up over signature.-
It is a forgery to make, with intent to defraud or injure, a writ-
ten instrument, by filling up over a genuine signature, or by
writing on the opposite side of a paper so as to make the signa-
ture appear as an indorsement. [0. C. 436.]
Art. 993. [934] [540] [ 441] Person not guilty, when.-
When the person making or altering an instrument in writing
acts under an authority which he has good reason to believe, and
actually does believe, to be sufficient, he is not guilty of forgery,
though the authority be in fact insufficient and void. [O. C.
437.]
Art. 994. [935] Altering teacher's certificate.-Whoever
shall wilfully raise, change, or alter any teacher's certificate or
diploma, or other instrument having the force of a teacher's cer-
tificate, shall be deemed guilty of forgery. [Acts 1893, p. 205.]
Art. 995. [936] [541] [442] Penalty for forgery.-Any
person guilty of forgery shall be confined in the penitentiary
not less than two nor more than seven years. [O. C. 433.]
Art. 996. [937] [542] [ 443] Passing forged instrument.-
If any person shall knowingly pass as true, or attempt to pass
as true, any such forged instrument in writing as is mentioned
238. TRADE AND COMMERCE.
and defined in the preceding articles of this chapter, he shall be
confined in the penitentiary not less than two nor more than five
years. [0. C. 443.]
Art. 997. [938] [534] [ 444] Preparing implements for
forgery.-Whoever shall prepare in this State any implements
or materials, or engrave any plate for the purpose of being used
in forging the notes of any bank, whether within this State or
out of it, and whether the same be incorporated or not, or who
shall have in his possession in this State any such implements,
materials or engraved plate, with intent to be used for the pur-
pose above mentioned, shall be confined in the penitentiary not
less than two nor more than five years. [O. C. 444.]
Art. 998. [939] [544] [ 445] Possession with intent to
pass.-If any person shall knowingly have in his possession
any instrument of writing, the making of which is by law an
offense, with intent to use or pass the same as true, he shall be
confined in the penitentiary not less than two nor more than
five years. [O. C. 445, Acts .1858, p. 169.] ·
Art. 999. [940] [545] [ 446] Evidence in case of bank bills.
-Upon a trial for forgery of any bank bill, or for passing or
attempting to pass any such bill as true, or for knowingly hav-
ing in possession any such forged bank bill, evidence that bills
or notes purporting to be issued by any bank are commonly re-
ceived as currency, or proof of the existence of such bank by
parol testimony, shall be deemed sufficient to show its legal es-
tablishment and existence. [0. C. 446.]
Art. 1000. [941] [546] [ 447] Falsely reading instrument.
-Whoever with intent to defraud shall, either by falsely read-
ing, or falsely interpreting, any pecuniary obligation or instru-
ment in writing, which would in any manner affect property,
or by misrepresenting its contents, induce any one to sign such
instrument as his act, or give assent to it in such manner as
would make it his act, if not done under mistake, shall be con-
fined in the penitentiary not less than two nor more than five
years. [O. C. 447.]
Art. 1001. [942] [547] [ 448] Substituting one instrument
for another.-Whoever with intent to defraud shall substitute
one instrument in writing for another, and by this means induce
any person to sign an instrument materially different from that
which he intended to sign, shall be confined in the penitentiary
not less than two nor more than five years. [O. C. 448.]
Art. 1002. [943] Altering or injuring pubJic records.-If
any person, without authority of law, shall wilfully and mali-
ciously change, alter, mutilate, destroy, deface or injure any
book, paper, record or any other document, required or per-
mitted by law to be kept by any officer within this State, he shall
be fined not exceeding five thousand dollars, or imprisoned in the
penitentiary not less than one nor more than five years. [Acts
1899, p. 301.]
Art. 1003. [944] [548] [ 449] Falsely personating another.
- I f one shall falsely personate another, whether bearing the
OFFENSES AFFECTING WRITTEN INSTRUMENTS. 239
same name or not, and, in such assumed character, shall give
authority to any person to sign such assumed name to any in-
strument in writing which, if genuine, would create, increase,
diminish or discharge any pecuniary obligation, or would trans-
fer, or in any way affect any property, he shall be confined in the
penitentiary not less than two nor more than seven years. [O.
c. 449.]
Art. 1004. [945] [549] [ 450] False personation in ac-
knowledgments.-If any person shall falsely personate another
whether bearing the same name or not, and in such assumed
character shall, before any officer authorized by law to authen-
ticate instruments of .writing for registration, acknowledge the
execution of an instrument of writing purporting to convey,
or in any manner affect, an interest in property, such instru-
ment purporting to be the act of the person whose name is
so assumed, and the acknowledgment thereof being such as
would entitle the instrument to be registered, he shall be con-
fined in the penitentiary not less than two nor more than ten
years. . [O. C. 450.]
Art. 1005. [946] .[549a] [ 450a] Procedure.-A conviction
for any offense mentioned in articles 979, 996 and 998 shall be a
bar to any other prosecution under said articles based upon the
same transaction or same forged instrument of writing. One
or more of said several offenses may be charged in separate
counts in the same indictment, and prosecuted together to final
judgment without election by the State as to which it relies upon
for a cdnviction. A judgment of conviction shall specify which
offense or under which count the defendant is found guilty, and
shall assess but one penalty not exceeding the greatest punish-
ment fixed by law to the highest grade of offense of which de-
fendant is convicted. It is unlawful for any county or district
attorney, or any person acting as such, to wilfully or knowingly
demand or receive fees for more tl'l.an one prosecution that could
have been combined or prosecuted in one indictment, subject to
the penalties prescribed by law for the punishment of extortion
of illegal fees. [Acts 1895, p. 106.]
CHAPTER TWO.
FORGERY OF LAND TITLES, ETC.
Article Article
"Forgery of patents, etc ......... 1001.i Non-residents ma:v commit ....... 1009
False certiftcate by officers ...... 1007 Proof and aUegations ........ . .... 1010
Knowin'gly uttering forged Instru- Rules in forgery appllcat>le ...... 1011
ments ........................ 1008
Art. 1006. [947] [550] [ 451] "Forgery of patents," etc.
-Every person who falsely makes, alters, forges, or counter-
feits, or causes or procures to be falsely made, altered, forged,
or counterfeited, or in any way aids, assists, advises, or encour-
ages the false making, altering, forging, or counterfeiting of any .
certificate, field notes, returns, survey, map, plat, report, order,
decree, record, patent, deed, power of attorney, transfer, assign-
ment, release, conveyance, or title paper, or acknowledgement,
APPENDIXE
[ Excerpt from 1974 Vernon's Code Annotated ]
Vernon~
TEXAS CODES
ANNOTATED
PENAL CODE
Sections 28.01 to 35
Ii T, PA 1J L, JllJlll'lf·
WEST PUB LIS 111 NG 0 0.
COPYRIGHT @ 1974
By
WEST PUBLISHING CO.
\
f •
I •
J V.T.C.A.Pet111 Code
3"1~1P87
Ch. 32 FRAUD § 32.46
Cross Reterences
§ 32.03.
" wner" defined,
"P r. on'' (lefln d, •
"Property'' defined,
§ 12.33.
;Libraq References
•.mb zzlem nt ~I el s q .. 52. .J, . Emtiez.zlement §§ J et se .. 48.
§ 32.46. 'ecuring Execution of Do ument by D ception
(a) person commits an offense if, with intent to defraud or
ha1·m any person, he, by deception, causes another to sjgn or execute
any document affecting p1·operty 01· service or the pecuniary interest
of any person.
(b) An offense under his section is a felony of the thi1·d degl·ee.
PRACTI E COMME TARY
By Seth. S. Searcy 111 and Janies R. Patterson
of tke Austi21 Bar
This section is lightly broader than Pen_nl ode arts. 1000 and
1001 (falsely reading or subs ituting instrum~L), since it co ers
any form of decep ion while those ai·ticJes reci ed specifi kinds of
deception.
The offense con ists of two principal elements- intent to defraud
or harm and a deception that cau es another to sign or execute a
document affecting property, service, or pecuniary interest. 'De-
ception' is not defined for this chapter and the kinds of collduct in~
eluded must be d termined by the cou1-ts. lt is de.fined for Chapter
31 (theft), however, and that definition may pl'ovide some guidance,
see Section 31.0L
This offens is omplete even though the acto~ does not intend
to benefit him elf or other , and by virtue of the definition of
"harm," see Section 1.07, it is not necessary th t the injury in-
tended be financial.
671
Title 7
§ 32.46 OFFENSES AGAINST PROPERTY
llistorical 'N'ote
Prior Law: Vernon's Ann.P.C. arts. 1000, Comparative Laws:
1001. 1003. ~Iodel Pena\ Code 11962). § 224.l·L
Crosa Referen.cea
Causation, see § 6.04.
"Harm" defined, see§ l.07(a)(16).
"Person" defined, see§ 1.07(a)(27).
"Property" defined, sec § 32.01!2).
"Service" defined, sec § 32.01(3).
Thlrd-degn~e felo11y punishment, see § 12~34.
Library References
Fraud e=>68, 69. C.J.S. Fraud H 154. 155 et se11.
Notes of Deolliona
In general 2 lniitrum nt was t gl,lima e . u j c t fo r pro •
Evidence 3 ecuUon under 11.a.Jd artlcl . Lew is v. S tnl
valldlty of prior Jaw1 1 (1905) r.R . 149. 6 . ' , W . 102 .
l!'h n vldence showed violation o( r-
non•ii Ann.P • . r ·peal a ar s. UJll , 1001 , re-
1. va11dlty of prior law• garding UJ'11u·w(u1 su stl utl on of lns tr11-
Vernon's Ann .P.C. url• 1000 (repealed) . tnonls and fnlll lntorpr :tatlon or wrltt n
lnstrumen~. ta.ta hall rlgbl to I el oH 11 9
p,-oscTlblng m.l.'Jte¥>resentatlon "'Inducing''
lr;nature. or nasenl to In. lrument at(ectlng for wl'ilah ' woul pros ut . ton v.
property, wu not un const! utlonally lnde!i- State c1u6n 171 cr.R. 201, MG 5 ,"1J .2a 323 .
n.l~e. notwl'lhsta.ndlng use ot qu ted wor_d.
3. Evidence
McLa.rty v. SI.Alo (1967) 16~ Cr.R. 64. 302.
s .W .2d 420. rnpl'o11ecul\on (or ml r pres n tlng 11.
wrl lten Instrument n.!t cling r>rop rl>'• evJ-
2. In gene rat denee of several extrnnnou off ni'I of de -
TJ{e m ere tac t ~hat a ·deed ab11oly~e on l tll rend.o.nl WIUI ndmlti.s lble on IJ>Su of m tlve
face mo.y hav been Int nd B.ll a. mort.· a n lment to commll otc r1< e ch rg d .
ga~ ty"ould not pr-eclllde n pros.e cul1on \JD"' Em11ter ,., Sta: e (1958) j 5 Or.R. 422, 30
S. V.2d 3~,
der Vernon's Ann,F.C, art. 1000 (repealed r
nor would lhe tact bM I\ dee\1 lo o. h1>me - E\'ldence llU!l\n.tned con I Ion of !al e In·
stead ab11ol\ll In torm may be shown by
;parol ro be Intended n.s secu1'lty C6r · IOJUl,
le11J1reto.Uon or"'Tl ett lnet.ruft'lent . to11
v. St.a.to !1061) 1.'11 Cr.R. 201, 848 S.W.2d
conveying no Utle. change tl\'e ract Chat the 323.
§ 32.47. Fraudulent Destruction, Bemoval, or Concealment of
Wrltin~
(a) A person commits an offense if, with intent to defraud or
harm anothel', he destr ys, l!emo~es, oonceals, altet\S, substitutes, or
otherwise impairs the verity, Je-gib11ity, or avai1ability of a writing,
oth~r than a governmental record.
(b) F<>r purllose;s of this se~tion, "mitingt' includes:
(1) pl'inting or any ot}fer method of r.ecording information;
(2) money, coins, tokens, stamps, seals,, credit cards, badgea,
trademarks;
672
APPENDIXF
[House Comm. On Criminal Jurisprudence, Bill Analysis,
Tex. H.B. 1185, 75th Leg., R.S. (1997)]
BILL ANALYSIS
CRIMINAL JURISPRUDENCE
C.S.H.B. 1185
By: Hightower
3-3-97
Committee Report (Substituted)
BACKGROUND
During the last two years, individuals and organizations have begun to take action based on their
refusal to recognize the authority and sovereignty of the government of the State of Texas.
These individuals have filed fraudulent judgment liens issued by so-called "common law courts"
and fraudulent documents purporting to create liens or claims on personal and real property with
the Secretary of State and many county and district clerks throughout the state. Many of the
filings have been against the State of Texas and public officers and employees, as well as private
individuals. At a minimum, the fraudulent filings have clogged the channels of commerce, an
intended and espoused consequence advocated by so-called anti-government groups. Often
these filings have amounted to harassment and intimidation of both public officials and ordinary
citizens.
PURPOSE
CSHB 1185, if enacted, would provide civil remedies for those against whom such fraudulent
filings have been made. In addition, it would provide for criminal sanctions to be levied against
those who seek to file such fraudulent documents. The bill would amend the Penal Code by
making it an offense to file a fraudulent court document or record, to exercise a function of a
public office that has no lawful existence, to cause or induce a public servant to record a
fraudulent court document, to deliver or cause to be delivered a document that simulates legal
process, and to refuse to execute a release of a fraudulent instrument purporting to create a lien
or claim. Additionally, the bill would make it a violation of the organized crime provisions of the
Penal Code to exercise a function of a public office that has no lawful existence. The bill would
create an expedited judicial process that permits someone aggrieved by a fraudulent filing to
obtain a court order declaring the filing to be fraudulent. The bill would also create a private
cause of action against a person who files fraudulent judgment liens or fraudulent documents
purporting to create a lien or claim against real or personal property in favor of a person aggrieved
by the filing or an attorney representing the state, county, or municipality.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking
authority to a state officer, department, agency or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Sections 32.21 (e) and (t), Penal Code, by deleting "37.0l(l)(C)" and
adding "37.01(2)(C)" in subsections (e) and (t). SECTION 5 of this bill amends 37.01, by adding
a new subdivision. This change is necessary in order to properly cite the subdivision of 37.01
dealing with governmental records.
SECTION 2. Amends Section 32.46 of the Penal Code, by creating an offense for causing or
inducing a public servant to record a fraudulent court document and expands the scope of the
section to include as a penal offense causing or inducing a public servant to file or record any
judicial process of a legal court, judicial entity or judicial officer created under the laws of this
state or of the United States. An offense under the amendment is a state jail felony. The
AEZ C.S.H.B . 1185 75(R)
definition of "deception" in this section has the meaning assigned by Section 31.01 of the Penal
Code.
SECTION 3. Chapter 32, Penal Code, which governs the offense of fraud, is amended by adding
Section 32.48, which expands the offense of "fraud" to include "simulating legal process." The
proposed section provides that a person commits an offense if the person recklessly causes to be
delivered to another any document which simulates a summons, complaint, judgment, or other
court process. The intent of the document must include: inducing payment of a claim from
another person or causing another to submit to the putative authority of the document or causing
another to take any action or refrain from taking any action in response to the claim. The fact
that the "simulating document" contains a statement that it is not legal process or that it
purports to have been issued or authorized by a person who had no lawful authority to issue it is
not a defense to the offense. Ifit is proven that the simulating document is filed with, presented
to, or delivered to a clerk or any employee of a clerk of a court created by or established under the
constitution or laws of this state or of the United States, there shall be a rebuttable presumption
that the simulating document is filed with the intent of violating this section. The first violation
of this section is a Class A misdemeanor; a subsequent violation is a state jail felony.
SECTION 4. Amends Chapter 32, Penal Code, by adding Section 32.49. Section 32.49 makes it
an offense if a person, with intent to defraud or harm another person, is the owner, holder, or
beneficiary of a purported lien or claim asserted against real or personal property that is
fraudulent, as defined by Section 51.90l(c), Government Code and the owner of the lien refuses
to execute a release within 21 days after receiving actual notice or written notice sent by either
certified mail, return receipt requested, or by telephonic document transfer to the recipient's
current telecopier requesting the execution of a release of the fraudulent lien or claim upon
request of the obligor, debtor, or any person who owns the real or personal property or an interest
in the real or personal property described in the document or instrument. Subsection (b) is
added to provide presumption of intent to defraud or harm another if the person refused to
execute a release of lien within 21 days after receipt of actual notice or written notice as provided.
An offense under this section is a Class A misdemeanor.
SECTION 5. Amends 37.01, Penal Code, which governs perjury and other falsification of
governmental records or statements. Subdivision (1) is added which defines "court record".
Subsequent subdivisions are renumbered accordingly. Under the amendment, a "court record"
for purposes of Chapter 37 of the Penal Code is a decree, judgment, order, subpoena, minutes, or
warrant. "Court record" also includes other documents issued by: a court of this state; another
state; the United States; a foreign country recognized by an act of Congress or a treaty or other
international convention to which the United States is a party; an Indian tribe recognized by the
United States; or any other jurisdiction, territory, or protectorate entitled to the full faith and
credit in this state under the United States Constitution. The definition of "governmental
record" is expanded to include letter of patent. By adding a definition of "court record" to
Section 37.01 of this section, and in conjunction with SECTION 6, the filing of fraudulent court
records is an offense under Section 37.10 of the Penal Code, which governs tampering with a
governmental record.
SECTION 6. Amends Section 37.10, Penal Code, which governs the offense of tampering with a
governmental record. Subsection (d) is amended to include "letter of patent" to the list of
governmental records that tampering with constitutes an offense. Subsection (h) is added and
provides that an offense under this section also constitutes an offense under Section 32.48 or
Section 37.13 and that a person may be prosecuted under any one of these sections.
SECTION 7. Amends Section 37.11, Penal Code, by adding Subdivision (2) to Subsection (a)
and by amending Subsection (b). Currently, Section 37.11 of the code makes it an offense to
impersonate a public servant with the intent to induce another to submit to his pretended official
authority or to rely on his pretended official acts. The proposed addition of Subdivision (a)(2)
would expand the offense of impersonating a public servant to include public officers. The
expansion of the offense includes exercising by a person of any function of a public officer or
AEZ C.S.H.B. 1185 75(R) 2
public employee, including judges and courts, if that person does so knowingly and the office of
position through which he purports to exercise a governmental function has no lawful existence
under the Constitution or laws of the State ofTexas or of the United States.
Subsection (b) currently provides that an offense under Section 37.11, Penal Code, is a Class A
misdemeanor unless the person impersonated a peace officer, in which event the offense is a
third degree felony. The proposed amendment to Subsection (b) makes an offense under this
section a felony of the third degree in all instances.
SECTION 8. Amends Chapter 37, Penal Code, by adding Section 37.13. Section 37.13 makes it
an offense if a person makes, presents, or uses any document or other record with the knowledge
that the document or other record is not a record of a court created under or established by the
constitution or laws of this state or of the United States and the person intends that the record be
given the same legal effect as a lawfully constituted court. An offense under this section is a Class
A misdemeanor unless convicted under this section on two or more occasions then it is a felony
of the third degree. An offense under this section also constitutes an offense under Sections
32.48 or 37.10 which allows an election of prosecutors to choose for prosecution of strongest
cases.
SECTION 9. Amends Section 71.02(a), Penal Code, by amending Subdivisions (9) and (10) and
by adding Subdivision (11). Chapter 71 of the Penal Code governs organized crime, making it an
offense to engage in "organized criminal activity," as defined by the chapter. Section 71.02(a) of
the Penal Code currently defines what constitutes engaging in organized criminal activity. The
proposed amendment would expand the definition to include any offense under Sections 37.ll(a)
of the Penal Code, which makes it an offense to impersonate a public servant with intent to
induce another to submit to his pretended official authority or to rely on his pretended official
acts. Thus, a combination of three or more persons impersonating a public servant in violation of
Section 37.11, Penal Code, constitutes "organized criminal activity" in violation of Section 71.02
of the code.
SECTION 10. Amends chapter 37 of the Penal Code by adding Section 37.101, which makes it
an offense to file a fraudulent financing statement. During the 74th Legislature, Section 9.412 of
the Business and Commerce Code was amended by adding Subsection (c), which makes it a
criminal offense to file a false financing statement that is forged, that contains a material
statement that is false, or that is groundless; the provision also created a private cause of action
by behalf of anyone aggrieved by the fraudulent filing. This addition to the Penal Code merely
codifies in that code that part of Section 9.412 that creates a criminal offense. The offense for
filing a fraudulent financing statement that is forged is a third degree felony, unless the defendant
has been convicted two or more occasions, in which event the offense is a second degree felony.
The offense for filing a fraudulent financing statement that contains a material statement that is
false or that is groundless is a Class A misdemeanor, unless the document is filed with the intent
to defraud or harm another, in which event the offense is state jail felony.
SECTION 11. Amends Chapter 1, Code of Criminal Procedure, by adding Article 1.052, which
governs signed pleadings by a defendant. Subsection (a) provides that every pleading, motion, or
other paper filed by an accused person represented by an attorney must be signed by at least one
attorney of record in the attorney's individual name and stating the attorney's address.
Subsection (a) further provides that, if an accused person is not represented by an attorney, that
accused person must sign any pleading, motion, or other paper filed for or on behalf of the
accused person and state the accused person's address.
Subsection (b) provides that the signatures of attorneys or of accused persons and defendants
constitute a certificate by the signatories that they have read the pleadings and that, to the best of
their knowledge, the instrument is not groundless or brought in bad faith or for harassment on
unnecessary delay.
AEZ C.S.H.B. 1185 75(R) 3
Subsection (c) provides that ifthe pleading is not signed, the court shall strike it from the record,
unless it is promptly signed after the omission is brought to the attention of the person filing the
pleading.
Subsection (d) provides that attorneys, accused persons, or defendants who file fictitious
pleadings or make statements in pleadings that they know to be groundless or false for purposes
of delay or harassment shall be held guilty'of contempt.
Subsection (e) provides that if a pleading, motion, or other document is signed in violation of this
article, the court shall impose appropriate sanctions on motion or on its own initiative, after
notice and hearing. The sanctions may include an order to pay to the other party or parties to the
prosecution or to the general revenue fund of the county in which the document was filed the
amount of reasonable expenses incurred because of the filing, including reasonable attorney's
fees.
Subsection (f) provides that courts shall presume that pleadings, motions, and other documents
filed are filed in good faith; no sanctions may be imposed except for good cause state in the
sanction order.
Subsection (g) provides that a plea of "not guilty" or "no contest" or "nolo contendere" does
not constitute a violation of this article.
Subsection (h) defines "groundless" for purposes of this article to mean without basis in law or
fact and not warranted by a good faith argument for the extension, modification, or reversal of
existing law.
SECTION 12. Amends Chapter 13, Code of Criminal Procedure, by adding Article 13.26,
creating an offense under Sections 32.48, 32.46, 32.49, and 37.13 of the Penal Code, which makes
it an offense to simulate legal process and may be prosecuted either in the county from which the
material document was sent or in the county in which it was delivered.
SECTION 13. Amends Section 51.605(c), Government Code, to include a requirement that
clerks, district clerks, county clerks, and district and county clerks, who already are required to
complete 20 hours of continuing education courses in the performance of their duties, must
include at least one hour of continuing education regarding fraudulent court documents and
fraudulent document filings.
SECTION 14. Amends Chapter 51, Government Code, by adding Subchapter J. Currently, the
clerks of courts are required to accept for filing whatever documents are presented to them; they
have no discretion to reject a filing. Section 51.90l(a) provides that if the Clerk of the Supreme
Court, Clerk of the Court of Criminal Appeals, a Clerk of a Court of Appeals, a district clerk, a
county clerk, district and county clerk or a municipal clerk has a reasonable basis to believe in
good faith that a document or instrument previously filed or submitted for filing or for filing and
recordation is fraudulent, as defined in the section, the clerk shall provide written notice of the
filing or submitted filing to the stated or last known address of the person against whom a lien is
filed. If the suspected document is a judgment lien, the person against whom the lien is filed shall
be notified. If the suspected document is a lien or claim on real or personal property, or an
interest therein the person who is the obligor or debtor or who owns the real or personal property
or any interest in real or personal property or interest therein that is the subject of a purported
lien or claim shall be notified in writing by the clerk.
Subsection 51.90l(b) states that the notice required by subsection (a) must be provided within
two business days after the date that the document or instrument is submitted for filing or
recording. If the document or instrument has been previously filed or recorded, notice must be
given not later than the second business day after the date that the clerk becomes aware that the
document or instrument may be fraudulent.
AEZ C.S.H.B. 1185 75(R) 4
Subsection (c) of Section 51.901 defines a fraudulent judgment lien as one judgment that is
issued by a purported court or judicial officer that is not created or established by the constitution
or laws of this state or of the United States. The subsection further defines a fraudulent lien or
claim as one that: (1) is asserted against real or personal property or an interest in real or personal
property; (2) is not provided for by specific state or federal statute or constitutional provision;
(3) is not created by implied or express consent or agreement of the obligor, debtor, or the owner
of the real or personal property or an interest in the real or personal property or by the implied or
express agreement consent, fiduciary, or other representative of that person; (4) is not an
equitable, constructive, or other lien imposed by a lawful court with jurisdiction.
Section 51.902 is added which permits the filing of an action on fraudulent judgment liens and
sets forth model forms that may be used, both by the plaintiff seeking an order and by a judge
issuing an order. Subsection (a) sets forth the suggested form of the verified motion to be filed
with the district clerk by a person against whom a purported judgment was rendered. Subsection
(b) is added which provides an affidavit to be signed and notarized, swearing to the truth of the
allegations. Subsection (c) permits a district judge having jurisdiction over real property matters
in the county in which the subject document was filed to review solely the documents in
contention in an ex parte proceeding without notice to any party and without hearing evidence.
The court's ruling is unappealable ifit is substantially similar to the form suggested in Subsection
(g). Subsection (d) prohibits a district clerk from collecting a fee for filing the motion.
Subsection (e) provides that the ruling must be filed and indexed in the same class of records in
which the subject document was originally indexed. Subsection (t) prohibits a county clerk from
collecting a fee for filing the judge's finding of fact and conclusion of law under this section.
Subsection (g) sets forth a suggested model form of the findings of fact and conclusion of law to
be issued by the judge.
Section 51.903 permits a person who is the purported debtor or obligor or who owns real or
personal property or an interest in real or personal property and who has reason to believe that
the document purporting to create a non-judicial lien or a claim against the real or personal
property is fraudulent to file a motion seeking judicial review of the document in a judicial review
process substantially similar to that set out in Section 51.902. Like Section 51.902, Section 51.903
sets forth suggested model forms for the motion to be filed by a plaintiff and the ruling to be
issued by a judge having proper jurisdiction, verified and reviewing only the documents in
contention and without hearing evidence. Any appeal under this section shall be expedited by the
appellate courts.
Section 51. 904 provides that a clerk shall post a sign, in letters at least one inch in height, in or
near the clerk's office stating that it is a crime to knowingly and intentionally file a fraudulent
court record or instrument with the clerk.
Section 51.905(a) authorizes a person to file certified copies a judicial finding of fact and
conclusion of law authorized by this section with the secretary of state to be filed in the records of
the same class. Subsection (b) authorizes the secretary of state to charge a filing fee of $15 for
filing such a document.
SECTION 15. Amends Section 12.013, Property Code, which currently provides that a judgment
or an abstract of judgment may be recorded if the judgment is attested under the signature and
seal of the clerk of the court that rendered the judgment. Under the proposed amendment, the
phrase "judgment of a court of this state" is qualified by the phrase "expressly created or
established under the Constitution or the laws of this State or of the United States", courts of a
foreign country recognized by congressional act, treaty, or international agreement of the United
States, or other jurisdiction entitled to the full faith and credit of the United States, thereby
ensuring that only judgments and abstracts of judgments of authentic courts may be filed.
SECTION 16. Amends Subtitle A, Title 2, Civil Practice and Remedies Code, by adding Chapter
11, which permits the filing of an injunction and creates a private cause of action against a person
who files a fraudulent court document or fraudulent lien or claim. An action under this chapter
AEZ C.S.H.8. 1185 75(R) 5
may be brought by an attorney representing the state or municipality a person who is the debtor
or obligor or who owns the real or personal property or the interest in real or personal property
that is encumbered by the fraudulent lien or claim. Liability attaches to individuals who file liens
knowing that they are fraudulent with intent to give the same effect as a recognized valid lien with
intent to cause physical injury, financial injury and injury or mental anguish or emotional distress.
An action under this section may be brought in any district court in the county where the
recorded document was filed or is where the real property is located.
A filing fee for an action brought is $15 to be paid to the Clerk of the Court. No other additional
fees or costs may be charged except for service of notice for which a $20 fee for personal service
shall be levied and the cost of postage if by registered or certified mail. If unable to pay the fee,
the plaintiff can file a pauper's oath under TRCP. If the plaintiff prevails and the fees imposed
are less than similar filings, the court may order the defendant to pay the difference. In addition,
the chapter provides for criminal remedies. Liability is limited to the greater of $10,000 or the
actual damages caused by the violation, in addition to court costs and reasonable attorney's fees.
Additionally, a court may impose punitive damages.
SECTION 17. Repeals Section 9.412(c) of the Business and Commerce Code.
SECTION 18. Provides that an action for an order brought under Subchapter J, Chapter 51,
Government Code, may be brought without regard to whether the document was filed before,
on, or after the effective date of this Act.
SECTION 19. Requires clerks to complete one hour of continuing education regarding
fraudulent court documents before September 1, 1998.
SECTION 20. Provides that the change in law made by Section 16 of this Act applies only to a
cause of action that accrues on or after the effective date of this Act.
SECTION 21. Provides that the effective date with regard to criminal opposes applies may after
the effective date of this Act. By offense or element of offense accruing before the effective date
of this Act is covered by former law.
SECTION 22. EMERGENCY CLAUSE.
COMPARISON OF ORIGINAL TO SUBSTITUTE
Except for the following sections in which substantive differences occur, the substitute 1s
substantively identical to the original:
(1) SECTION 1 amends Penal Code, Section 32.21 (e) and (f), by deleting "37.0l(l)(C)" and
replacing with "37.01(2)(C)". This is a new provision and all subsequent sections are
renumbered throughout the bill.
(2) SECTION 3 amends Chapter 32, Penal Code by adding Section 32.48 and adds language in
subsection (a)"causes to be delivered" in the explanation of simulating legal process.
Subsection (a)(l) is changed by adding "from another person".
(3) SECTION 4 is changed by amending the title of the section to "Refusal to Execute Release of
Fraudulent Lien or Claim". Section 4 also includes new language creating a process whereby a
person against whom a fraudulent lien or claim has been filed and ruled invalid may request that
the lien holder execute a release of said lien. Should the lien holder fail to execute a release of
the purported lien or claim within twenty-one days after receipt of actual or written notice, intent
to harm or defraud another is presumed. An offense under this newly created section of the
Penal Code is a Class A misdemeanor.
(4) SECTION 5 includes the tenn "minutes" in the definition of "court record".
AEZ C.S.H.B. I J85 7S(R) 6
(5) SECTION 7 amends Section 37.11, Penal Code and the language "knowingly purports to
exercise" is added in subsection (a)(2) .
(6) SECTION 8 adds section 37.13 to the Penal Code. The title of this section has been changed
from "FRAUDULENT COURT RECORDS" to "RECORD OF A FRAUDULENT COURT'' to
better reflect the changes therein. Additionally, the phrase "genuine court record" has been
deleted and the phrase "record of a court created under or established by the constitution or laws
of this state or of the United States" has been added. The penalty for violation of this section has
also increased from a Class B to a Class A misdemeanor and a third degree felony for subsequent
offenses.
(7) SECTION 14 includes new language in Section 51.901, Subsection (a), by adding "has a
reasonable basis to believe in good faith" to the provision regarding the clerks' suspicion of
fraudulent documents or instruments.
Subsection (a)(2) is changed by adding "personal" property along with real property which was
contained in the original version.
Subsection (b)(2) is changed by deleting "is" and adding "may be" to clarify language.
Subsection (2)(B) is changed by adding "or agreement" to provision regarding whether a
document or instrument purports to create a lien or claim. Also, Subsection (2)(B) is amended
by deleting "by the originally signed and attested or acknowledged signature".
Affidavit forms are also added to Section 51 .902 and Section 51.903 which provides for a sworn
statement.
Section 51.903, Subsection (c) is amended by adding "An appellate court shall expedite review
of a court's finding under this section."
Section 51.902 is changed by adding paragraph IV as follows :
1Y:_
Movant further attests that the assertions contained herein are true and correct.
Section 51.902 is also changed by adding paragraphs IV and V as follows:
IV.
Movant attests that assertions herein are true and correct.
V.
Movant does not req uest the court to make n findin g as to any under.lyi ng c laim o f the pa rties
i11vo lved and ack now'led es that this motion does not seek to invalidate a le itim utc lien.
Moyant further ac knowledges that rn ovant may be ubject to sanctions, as provided by Chapter
J.Q, ivil Practice and Remedies ode, if this motion is determined to be frivolous.
(8) SECTION 19 is changed by adding a requirement for clerks to complete one hour of
continuing education regarding fraudulent court documents before September 1, 1998.
AEZ C.S.H .B. 1185 75(R) 7
Liverman, Roger
Combined Opinion