Liverman, Aaron

PD-1595-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/20/2015 9:07:30 AM
Accepted 8/24/2015 4:04:55 PM
August 25, 2015 ABEL ACOSTA
IN THE COURT OF CLERK
CRIMINAL APPEALS
OF TEXAS
ROGER LIVERMAN ANI) $
AARON LIVERMAN $
APPELLANTS $
$
V $ No. PD-1595-14
$ PD-159ó-14
$
THE STATE OF TEXAS, $
APPELLEE $

STATE'S REPLY TO AMENDED BRIEF Oß AMICUS CURIAE
OF THE TEXAS CONSTRUCTION ASSOCIATION

FROM THE COURT OF APPEALS FOR THE
SECOND DISTRICT COURT AT FORT WORTH
IN CAUSE NUMBERS O2.13.OOI76.CR AND 02-I3.00177-CR
AND FROM THE 362ND JUDICIAL DISTRICT COURT
OF DE,NTON COUNTY, TEXAS
TRIAL CAUSE NUMBERS F-2012-0136-D AND F-20I2-OI37.D
TFIE HONORABLE BRUCE MCFARLING, JUDGE, PRESIDING
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas
CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
LARA TOMLIN
Assistant Criminal District Attorney
State Bar No. 24075169
1450 East McKinney
Denton, Texas 76209
(e40) 34e-2600
FAX (940) 34e-27st
I ara.toml i n@dentoncounty. com
 F PARTIES & COUNS
Appellants ROGER LIVERMAN and
AARON LIVERMAN
MATTHEW J. KITA
Post Office Box 51 l9
Dallas, Texas 75208
APPELLATE COUNSEL
LEE ANN BREADING
l2l West Hickory Street, Suite 133
Denton, Texas 76209
JERRY COBB
Post Office Box 1399
Denton, Texas 76202
TRIAL COI.INSEL

Appellee THE STATE OF TEXAS

PAUL JOHNSON
Criminal District Attorney
CAHTERINE LUFT
Assistant Criminal District Attorney
Chief, Appellate Division
LARA TOMLIN
Assistant Criminal District Attorney
State Bar No. 24075169
1450 East McKinney
Denton, Texas 76209
(e4o) 34e-2600
I ara.toml in@dentoncounty. com

APPELLATE COI-INSEL
RICK DANIEL
LINDSEY SHEGUIT
Assistant Criminal District Attorney

TRIAL COLINSEL
 TABLE OF CONTENTS

IDE,NTITY OF PARTIES & COUNSEL I

INDEX OF AUTHORITIES iv-vii

STATEMENT OF TFIE CASE I

SUMMARY OF THE STATE'S ARGUMENTS 2

ARGI.II\4ENT J

TI{E STATE'S RESPONSE TO TFIE TEXAS CONSTRUCTION
ASSOCIATION'S BRIEF OF AMICUS CUNAE.,..,,, J

Texas Penal Code ç 32.46 should include Appellants' actions
despite the possible civil remedies available for victims or the
a
consequences contractors committing fraud would have to face J

The purpose of a lien is to secure payment, but there
should be a criminal offense if the lien was created
by deception with an intent to defraud 6

Appellants' actions should be a crime because county clerks
do not have discretion to file and record statutory liens 6

The availability of civil penalties does not mean
there should not also be criminal penalties for filing a false lien 7

Section 12,002 of the Civil Practice and Remedies
code should be used with Penal Code ç 32.46, as 12.002
follows the language of 32.46 and 12.002 was enacted
through the same bill that amended 32.46 8

Section 5 3. I 60 is available to remove a lien, but that section
is about filing a suit to remove the lien and in no way
addresses filing a fraudulent lien against an innocent party 9

ii
 Bonding around the lien under the Property Code $ 53.171
does not cure Appellants' fraud and imposes diffrcult duties
on the innocent victim..... ......... I I

Discharging the lien under 53.157 is not an adequate
punishment for Appellants' fraudulent criminal actions 11

The fact that there are limitations on liens that prevent
a lienholder from improper payment is irrelevant in a
fraudulent situation where the lienholder is owed nothing.. t2

The fact that a filed lien can be amended is irrelevant
in a fraudulent situation where the lienholder is owed nothing............... 13

The Legislature does not think it is unreasonable and
excessive to punish a contractor for fraudulent behavior
as evidenced by Texas Penal Code ç 32.49

PRAYER .... 15

CERTIFICATE OF COMPLIANCE ....... 16

CERTIFICATE OF SERVICE, 16

lll
 INDEX OF A ORITIES

Statutes, Codes, and Rules

Act of May 21,1997,75th L.g., ch 189, 5 2,1997
Tex. Gen. Laws 189 (amended 2003) (current version
at Tex. Penal Code Ann. ç 32.46 (West Supp. 2014)) .........14

Act of lr/;ay 2l,1997,75thLeg., R.S., ch 189, $ 4,
lggT Tex. Gen. Laws 189.......... ........... 14

Act of May 21,1997,75IhLeg., R.S., ch 189, $ 16,
1997 Tex. Gen. Laws 189 (amended 1999) (cunent version at Tex.
Civil Prac. & Rem. Code Ann. $ 12.002 (West Supp. 2014)) 8 9 1 4

Act of May 1 0, 1999, 7 6th Leg., R.S., ch 62, $ 1 9.0 1 (3),
lggg Tex. Gen. Laws 62 (amended2007) (cunent version at Tex. Civil
Prac. & Rem. Code Ann. $ 12.002 (West Supp. 2014)) ...,....9

Act of June 1 5,2007,801h Leg., R.S., ch 895, S 2,2007
Tex. Gen. Laws 895 ( amended 2009) (current version at Tex, Civil
Prac. & Rem, Code Ann $ 12.002 (West Supp. 2014)) 9

Act of June 19, 2009,81st Leg., R.S., ch 1260, ç 2,2009
Tex. Gen. Laws 1260........ .""" 9

House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. I 185,
9,14

Tex. Agric. Code Ann. 5 14.072 (West 2004) 4

Tex. Alco. Bev. Code Ann. $ 101.63 (West 2007) 7

Tex. Alco. Bev. Code Ann. $ 106.03 (West Supp. 2014)

Tex. Alco. Bev. Code Ann. $ 106.06 (West Supp. 2014) 7

IV
Tex. Bus. & Com. Code Ann. $ 27.01 (West 2007) 8

Tex. Bus. Orgs. Code Ann. $ 4.008 (West 2012) 4

Tex. Civ. Prac. & Rem. Code Ann. $ 12.002 (West Supp. 2014) ..8,9,14

Tex. Civ. Prac. & Rem. Code Ann. $ 71.002 (West 2008) 7

Tex. Civ. Prac. & Rem. Code Ann.$ 123.002 (West 20ll) 8

Tex. Civ. Prac. & Rem. Code Ann. $ 134.001-134.005
(West 2011, 'West Supp. 2014)...... .........7

Tex. Fin. Code Ann. 5 392.402 (V/est 2006) 4,8

Tex. Gov't Code Ann. $ 618.009 (West 2012) 4

Tex. Occ. Code Ann. $ 165.151-165.160 (West 2012) 4

Tex. Occ. Code Ann. $ 201 .604-201.606 (West 2012) 4

Tex. Occ. Code Ann. $ 205.401 (West 2012) 4

Tex. Occ. Code Ann. ç 264.151-264.152 (West2012). 4

Tex. Penal Code Ann. $ 16.02 (West Supp. 2014) 8

Tex. Penal Code Ann. $ 19.01-19.06 (V/est 2011,'West Supp. 2014). 7

Tex. Penal Code Ann. $ 20.02 (West 20Il). 7

Tex. Penal Code Ann. ç 22.01-22.12 (West 2011, West Supp' 2014) 7

Tex. Penal Code Ann. $ 30.05 (West Srpp. 2014) 8

Tex. Penal Code Ann. $ 31.01-31.17 (West 201I, West Supp.2014) 7

Tex. Penal Code Ann. $ 32.01-32.54 (V/est 2011, West Srpp, 2014). 8

V
Tex. Penal Code Ann. ç 32,34 (West 20ll) 4

Tex. Penal Code Ann. S 32.42 (West 2011) 4

Tex. Penal Code Ann. ç 32.441(West 20lI)
Tex. Penal Code Ann, ç 32.46 (West Supp. 2014) passlm

Tex. Penal Code Ann. $ 32.a6@Xl) (West Supp. 2014) 2, 5,7

Tex. Penal Code Ann. 5 32.49 (West 2011)...... .13,14

Tex. Penal Code Ann. $ 38.12 (West Supp. 2014) 4

Tex. Prop. Code Ann, $ 53.024 (West 2014) t2

Tex. Prop. Code Ann. $ 53.052 (West 2014) 6

Tex. Prop. Code Ann. $ 53.052(c) (West 2014) 6,7

Tex. Prop. Code Ann. $ 53.157 (West20l4) l2

Tex. Prop. Code Ann. $ 53.172 (West2014) .. 11

Tex. Prop. Code Ann. S 53.172-53.174 (West 2014) l1

Tex. Prop. Code Ann. $ 53.173-53.174 (West 2014) l1

Cases

Coxv. Waste Mgmt. of Tex., Inc.,
300 S.W.3d 424 (Tex. App.-Fort Worth 2009, pet. den'd) 7

Elston v. Resolutíon Servs,
950 S.V/.2d 180 (Tex. App.-Austin 1997, no pet.). 8

Exxon Corp. v. Emerald Oil & Gas Co
348 S,W.3d 194 (Tex. 20tI) 8

vi
Green Int'l v. Solis
951 S.W.2d384(Tex, 1997) .............,,,....7

Insurance Co. of N. Am. v. Morris
981 S.W.2d 667 (Tex, 1998) '.......'....,.....8

Liverman v. State
447 S.W.3d 889 (Tex. App-Fort Worth 2014, pet. granted) 1

Líverman v, State
448 S,W.3d 155 (Tex. App.-Fort Worth 2014, pet. granted) 2

Mathis v. Barnes
377 S.W.3d926 (Tex. App.-Tyler 2012, no pet.)... .....'.......8

Wal-Mart Stores, Inc. v. Rodríguez
92 S.W.3 d s02 (Tex. 2002) 7

vll
 IN THE COURT OF
CRIMINAL APPEALS
OF TEXAS

ROGER LIVERMAN ANI) $
AARON LIVERMAN $
APPELLANTS $
$
V $ No. PD-1595-14
$ PD-1596-14
$
THE STATE OF TEXA.S, $
APPELLEE $

STATE'S REPLY TO AMENDED BRIEF OF AMICUS CURIAE
OF THE TEXAS CONSTRUCTION ASSOCIATION

TO TI{E COURT OF CRIMINAL APPEALS:

Comes now the State, by and through its Assistant Criminal District

Attorney, and respectfully submits its reply brief urging that the judgment of the

Second District Court of Appeals be affirmed.

TEMENT E
Appellants were found guilty of securing the execution of a document by

deception on March 21,2013 (C.R, at 48). Appellants appealed their convictions,

and the Second District Court of Appeals rendered acquittals in both of their cases

on October g, 2014. Liverman v. State, 447 S,W.3d 889, 890 (Tex.

I
App-Fort Worth 2014, pet. granted); Líverman v. State,448 S.W.3d 155, 156

(Tex. App.-Fort Worth 2014, pet. granted).

This Court granted a petition of discretionary review on February 4,2015.

The State hled its brief on the merits on March Lt,2015, and Appellants filed their

brief on the merits on April 24, 2015. This Court heard oral argument on

May 20, 2015. The State subsequently filed a letter regarding the argument after

conferring with Appellants regarding the civil judgment related to this case, and

provided this Court with the civil judgment. On August 17, 2015, the Texas

Construction Association filed a brief of amicus curíae. The State now files a

motion to file an additional brief in reply to the Texas Construction Association's

brief of amicus curíae pursuant to Texas Rule of Appellate Procedure 70.04, and

this additional brief in reply to the brief of amicus curíae.

SIIMMAR YO F'THE ATE rs ARG IIME,NTSI

Texas statutes allow for actions to be both a criminal offense and a civil

cause of action. Here, civil remedies alone are inadequate to punish individuals

flrling fraudulent liens and inadequate to deter that behavior. Although civil

I The crux of the arguments between the State and Appellant has been whether the
county clerk filing and recording a statutory lien in order for that lien to be in its final,
legally enforceable form was "executing" under $ 32.a6@)(1). See Tex. Penal Code Ann.
g 32.a6@)(1) (West Supp. 2014), The Texas Construction Association does not argue
that issue, and instead argues public policy and $ 32.46 in relation to civil statutes. Thus,
the State responds to those arguments and does not rehash the
"executing" argument.

2
remedies can be used in addition to charging criminal offenses, the civil remedies

do not do enough to protect victims of fraud and, instead, cost victims time and

money. The Legislature intended these civil remedies to be used in conjunction

with charging criminal offenses. Criminal offenses in relation to liens will not

harm law-abiding contractors, as only contractors filing documents by deception

with the intent to defraud or harm a victim will be criminally liable. Limitations

and amendments to liens are irrelevant to a case of a completely fraudulent

document, as there will be no valid lien to be limited and amended-only a

completely false lien. Here, there was not an invalid lien, there was a fraudulent

lien. In addition, since clerks are required to file and record, and thus execute,

statutory liens that individuals present to them, $ 32.46(a)(l) criminalizes the act of

deceiving the clerks into filing the fraudulent lien.

ARGUMENT

THE STATE'S RESPONSE TO THE TEXAS CONSTRUCTION
ASSOCIATION'S BRIE F'OF AMICUS CURIAE

Texas Penal Code S 32.46 should include Appellants' actions despite the
possible civil remedies available for victims or the consequences contractors
committing fraud would have to face.

Individuals involved in different businesses or industries can be criminally

liable for actions taken through the course of their businesses, and the construction

J
industry should not be an exception.2 Law abiding business people conduct

business within legal parameters, but those who run afoul can be criminally liable.

In this context, civil remedies are inadequate to punish individuals filing fraudulent

liens and inadequate to deter that behavior.

What does a victim do if an individual files a fraudulent lien against her

home? The victim can attain civil remedies, but that involves hiring a lawyer and,

as in this case, costly and time consuming litigation before the release of the lien.

In her civil claim, Katheryn Hall was only awarded attorney's fees, and was not

compensated for her lost time, interest on the legal fees before the judgment, or

possible loss of profit from her inability to sell the house (Civil Judgment3).

Once a victim wins a suit, the individual responsible for the fraud, in this

case Appellants, may not have the money to pay the judgment against him. It may

2 Statutes governing all types of businesses, industries, and occupations proscribe
fraudulent and dishonest actions of individuals and make the actions criminal offenses,
including, but not limited to: grain fraud (Tex. Agric. Code Ann. $ 14.072 (West 200Ð);
fraudulent filings with the secretary of state (Tex. Bus. Orgs. Code Ann. $ 4.008
(\Mest 2012)); unlawful acts of debt collectors (Tex. Fin. Code Ann. 5 392,402
(West 2006)); fraudulent use of signatures or seals (Tex, Gov't Code Ann. $ 618'009
(West 2012)); unlawful actions by physicians (Tex. Occ. Code Ann. $ 165.151-165.160
(West 2012)); unlawful actions by chiropractors (Tex' Occ. Code
Ann. g 20L604-201.606 (West 2012)); unlawful actions by acupuncturists (Tex. Occ.
Code Ann. $ 205.401 (West 2012)); unlawful actions by dentists (Tex. Occ. Code
Ann. g 264.151-264.152 (West 2012)); fraudulent transfers of motor vehicles (Tex. Penal
Code Ann. ç 32,34 (West 2011)); deceptive business practices (Tex. Penal Code
Ann. 32.42 (West 2011)); illegal recruitment
ç of athletes (Tex. Penal Code
Ann. 32,441 (West 2011)); and barratry (Tex. Penal Code Ann. 38.12
ç $
(West Supp. 2014)).
3 The civil judgment was provided to this Court in the State's oral argument
correction letter.

4
have been unlikely for Ms. Hall to ever collect the money she was awarded

considering Appellants may or may not have had a job since she fired them, and

Roger Liverman could not afford the $750 a month rent Ms. Hall was charging him

(3 R.R. at39,43; Civil Judgment). If ç 32.46(aXl) is interpreted to not include

fraudulent liens, and an individual committing fraud is judgment-proof or
bankrupt, he can attempt to collect money through a fraudulent lien and have no

other penalties, while the victim is left with large legal fees. ,See Tex. Penal

Code $ 32.a6(a)(1).

Finding that Appellants' actions in this case were not criminal allows for

fraudulent individuals to, as Appellants did, attempt to extort money from victims

by filing fraudulent liens. These actions need to be criminal to protect the public,

and criminalizingthose actions was the intention of the Legislature as discussed in

the State's brief and oral argument.

In its brief of amícus curíoe, Texas Construction Association claims that

finding that Appellants' actions fall under 32.a6@)(l) of the penal code would "be

devastating for the construction industry." This is untrue, as the criminal penalty

would only harm those who are filing fraudulent statutory liens with the intent to

defraud or harm another; in other words it would only be devastating to those in

the industry defrauding the consumer . See Tex. Penal Code $ 32.a6(a)(l).

5
The purpose of a lien is to secure payment, but there should be a criminal
offense if the lien was created by deception with an intent to defraud.

The Texas Construction Association argues that the purpose of filing a lien

affidavit is to secure payment and not to be an avenue for punishment, and that "an

error in the lien affidavit should not be used to criminally charge an industry

participant." But Appellants' case is not dealing with an "error," it was an

affidavit which was found fraudulent beyond a reasonable doubt (1 C.R. at. 65;

2 C.R. at 484). There was no proof that there was any type of contract or

agreement underlying the fraudulent liens and these actions are criminalized under

32.a6@)(1) (3 R.R. at t59; 4 R.R. at 26, 52; State's Exhibit 3). ,See Tex. Penal

Code ç 32.46.

Appellants' actions should be a crime because county clerks do not have
discretion to file and record statutory liens.

County clerks can only refuse a lien affidavit if they have a legitimate basis;

that is why Appellants' actions should be a crime. See Tex. Prop. Code

Ann. $ 53.052 (West 2014): Tex. Penal Code ç 32.46. County clerks do not have

investigators to check on every lien and must trust that the person filing the lien is

filing an accurate document. Tex. Prop. Code Ann. $ 53.052(c). The clerk must

file a presented lien, therefore executing the statutory lien, even if the document is

fraudulent and harms the owner of the property, ,See Tex, Prop. Code $ 53.052(c);

o The clerk's record for F-2012-0136-D is referred to as "l C.R." and the
clerk's record from F-2012-0137-D is referred to as "2 C.R."

6
Tex. Penal Code $ 32.a6(aXl). Thus, there should be a criminal penalty to protect

the property owner. See Tex. Prop. Code $ 53.052(c); Tex. Penal

Code $ 32.a6(a)(1).

The avaitability of civil penalties does not mean there should not also be
criminal penalties for filing a false lien.

The Texas Construction Association argues there are reasonable ways to

remove a lien without bringing criminal charges, but that does not mean that there

should not be criminal charges. There are many criminal offenses that are also

civil causes of action, some include:

Offense Civil cause of action Criminal Statute
Cox v. Waste Mgmt. of Tex., Inc.,
300 S.W.3d 424, 439 (Tex. App.-Fort Tex. Penal
Assault
Worth 2009, pet. den'd) (assault as a cause Code S 22.0t-22.12
of action).
Green Int'l v. Solis, 951 S.W.2d 384,391
(Tex. 1997) (conversion as a cause of Tex. Penal
Thefr action); Tex. Civ. Prac. &. Rem,
Code $ 3 1.01-3 l.l7 .
Code $ 134.001-134.005 (Texas Theft
Liability Act).
Wrongful Tex. Penal
Tex. Civ. Prac. & Rem. Code $ 71.002.
death Code $ 19.01-19,06.
Províding
alcohol to Tex. Alco. Bev,
íntoxicated Tex. Alco. Bev. Code ç 2.02. Code $ 101.63,
person or 106.03, 106.06.
mínor
I|tal-Mart Stores, Inc. v. Rodriguez, Tex. Penal
Unlawful
92 S.W.3d 502, 506 (Tex. 2002) (false Code $ 20.02.
restraint
imprisonment as a cause of action).

7
 Exxon Corp. v. Emerqld Oil & Gqs Co,,
34S S.W,3d 194,217 (Tex. 2011) (common
law fraud); Insurance Co. of N. Am. v. Tex. Penal
Fraud Morris, gSl S.W.2d 667, 674 (Tex. 1998) Code 32.01-32.54.
$
(fraud bynondisclosure); Tex. Bus. & Com.
Code $ 27.01 (statutory fraud dealing with
real estate and stock transactions).

Debt
Elston v. Resolution Servs.,
Tex. Fin.
950 S.W.2d 180, 185 (Tex. App.-Austin Code 5 392.402.
collection
7997, no pet.)
Mqthis v. Barnes, 377 S.W.3d 926, 93t Tex. Penal
Trespass
(Tex. App.-Tyler 2012,no pet.). Code $ 30.05.
Illegal Tex. Civ. Prac. & Rem. Code $ 123.002. Tex. Penal
wiretapping Code $ 16.02.

Section 32.a6@)(1) provides a criminal penalty for an action that may also have

civil remedies, similar to many of the other sections in the fraud chapter of the

penal code and many statutes across all Texas codes. SeeTex. Penal Code ç 32.46.

Section 12.002 of the Civil Practice and Remedies code should be used wilh
Penøl Code S 32,46, as 12,002 follows the language of 32.46 and 12.002 was
enacted through the same bill thøt amended 32.46.

The brief for amícus curiae argues that Appellants' actions should

fall under $ 12.002, Tex. Civ. Prac. & Rem. Code Ann. $ 12.002 (West Supp.

2Ol4). This section of the code was first enacted in1997. Act of }l4:ay 21, 1997,

75thLeg., R.S., ch 189, $ 16, 1997 Tex. Gen. Laws 189 (current version at Tex.

8
Civil Prac. & Rem. Code $ 12.002).5 Section 12.002 was enacted as part of the bill

that amended Penal Code ç 32.46, and both have similar language. House Comm.

on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1185,75th Leg. R.S. (1997);

seeTex. Civ. Prac. & Rem. Code $ 12.002; Tex. Penal Code ç 32.46. Based on the

1997 bill analysis, it is obvious that the Legislature was concerned with fraudulent

liens and documentary integrity, as discussed in the State's brief and oral

argument. See House Comm. on Criminal Jurisprudence, Bill Analysis,

Tex. H.B. 185, 75thLeg. R.S. (1997). Therefore, the Legislature intended for

Appellants' actions to be both a civil cause of action and a criminal offense. See

Tex. Civ. Prac. & Rem. Code $ 12.002; Tex. Penal Code 5 32.46; House Comm.

on Criminal Jurisprudence, Bill Analysis, Tex. H.B. I185, 75th Leg. R.S. (1997).

Section 53,160 is available lo remove a lien, but thøt section is øboutfiling a suít
lo remove the lien and in no way addr¿sses Jiling ø fruudulent lien agaínst øn
innocenl pnrty.

Here, Ms. Hall released the lien civilly through litigation before the criminal

action was filed (3 R.R. at 203; Civil Judgment). The lien affrdavits were

t This section was enacted as chapter I 1, but was renumbered as chapter 12 in 1999.
Act of May 10, lgg9,76thLeg,, R.S., ch 62, $ 19.01(3), 1999 Tex. Gen. Laws 62
(amended 2007) (current version at Tex. Civil Prac. & Rem. Code $ 12.002). ln 2007,
subsections (a-1) and (a-2) were added. Act of June 15,2007,80th Leg., R'S.,
ch 895, ç 2,2007 Tex. Gen. Laws 895 (amended 2009) (current version at Tex. Civil
Prac. & Rem. Code $ 12.002). The most recent amendment to the statute was in 2009
when the Legislature added an intent to defraud element, making the language more
similar to Penal Code ç 32.46. Act of June 19, 2009,81st Leg., R.S., ch 1260, S 2,2009
Tex. Gen. Laws 1260.

9
originally received by the clerk's office July 22,2008 (2 R.R. af 22). The civil trial

started July 22,2009, the jury ruled in favor of Ms. Hall July 24,2009, and on

Iuly 29,2009 the judgment was signed (Civil Judgment). The liens were found

fraudulent, there were no monetary damages, and Ms. Hall was awarded

$15,001.87 in attorney's fees (Civil Judgment).

Therefore, it took Ms. Hall ayear and over $15,000 to get these fraudulent

liens released (2 R.R. at 22; Civil Judgment). Ms. Hall bought the house as an

investment for her children's college and she presumably could not sell the rental

property during the litigation, plus she had to pay for legal fees (3 R.R. at 37).

Appellants were able to attempt to steal the rental property out from under Ms.

Hall by living there without paying rent and filing false liens. Roger even told Ms.

Hall that if she did not give him the property he would sue her, cost her more

money, and bankrupt her (3 R.R. at 39,48).u These actions should be criminal

because Appellants knowingly filed a fraudulent lien in an attempt to harm

Ms. Hall; this was not an effor or misunderstanding in an otherwise valid lien.

6 Ms. Hall testified that she paid $62,000 for the property, paid $10,000 for the
down payment and to cover closing costs, and owed $57,000 on the rental property; the
exact amount claimed in Appellants'fraudulent liens (3 R.R. at 30-31;
State's Exhibits l, 2).

10
Bondíng around the lien under the Property Code S 53,171 does not cure
Appellants'fraud and imposes dfficult duties on the innocent victim.

The Texas Construction Association argues that the lien can be bonded

around, and leaves the list of hoops a victim has to jrmp through in footnotes

(amícus curia at9-10, n8-10). Under those requirements, Ms. Hall would have had

to put up a $97,000 bond, payable to Appellants (State's Exhibits 1, 2). Tex. Prop.

Code Ann, $ 53.172 (\Mesf 20t4). Ms. Hall would have also had to comply

with $ 53.173-53.174 of the Texas Property Code. See Tex. Prop. Code

Ann. $ 53.173-53.174 (West 2014).

Ms. Hall would have been required to do all this when the lien filed was

fraudulent (1 C.R. at 65;2 C.R. at 48;3 R.R. at 159; 4 R.R. at" 26,52;

State's Exhibit 3). This is not a case where the consumer is in a dispute with a
contractor because the consumer asked for a bronze faucet instead of a chrome

one. This is a case of Roger threatening to bankrupt Ms. Hall unless she handed

over a heuse, and these actions are not reasonably addressed by making the victim

come up with $97,000 and having to follow complicated and time intensive

statutes. ,See Tex, Prop. Code $ 53.172-53.174

Discharging the lien under 53.157 is not ün udequate punishment for
App ellanÍs' fraudulent criminal aclio ns.

Section 53.157 permits the discharge of a lien if:
. the victim pays the lien;
. the lien holder sues the victim;

11
 . a judgment is filed discharging the lien, presumably from a civil suit
as discussed supra;
. the victim complies with the bond statutes, as discussed supra; or
. there is a civil proceeding under 53.160, as discussed supra.

SeeTex. Prop. Code Ann. $ 53.157 (West2014).

This statute covers most of the Texas Construction Association's argument,

and is not persuasive in why Appellants' actions should not be criminal. All of

these options placed alarge burden on Ms. Hall, who was being victimized through

wholly fraudulent liens filed by her brother and father as retaliation for evicting her

father from the rental property and in an elaborate attempt to extort the house from

her (l C.R. at 65;2 C.R. at 48;3 R.R. at 159; 3 R.R. at 39,45,46,48;4 R.R. a|26,

52; State' s Exhibit 3).

The fact that there are limitations on liens lhat prevent a lienholder from
improper payment is inelevunt in a fraudulent situøtion where the lienholder is
owed nothíng.

While this statute would be a useful safeguard if a contractor and consumer

were in a dispute over the price of materials used in a contracted job, this section

does not help victims of fraud. See Tex. Prop. Code Ann. $ 53.024 ('West 2014).

Here, there was not a dispute over work performed, in fact there was no contract

for any work while Appellants were living rent-free in Ms. Hall's rental property

(1 C.R. at 65;2 C.R. at 48;3 R.R. at 37, 159; 4 R.R. at 26, 52; State's Exhibit 3).

This is not a case of Ms. Hall wanting to limit the cost of home repairs that she felt

t2
she was overcharged for; this is a case of Appellants filing fraudulent documents in

the attempt to cause great financial strain on Ms. Hall.

The fact thøl a liled lien can be amended is irrelevant in a fraudulent situøtíon
where lhe lienholder is owed nothing.

This case, and what 32.a6@)(l) criminalizes, is not simply an effor in a lien.

The statute criminalizes deceiving another with the intent to defraud or harm . See

Tex. Penal Code ç 32.46. The State has to prove this fraud and deception beyond a

reasonable doubt. See id. Section 32.a6@)(1) does not criminalize an error made

by a contractor, it criminalizes a contractor trying to execute a fraudulent lien

by deception. See id.

The Legislature does not think it is unreasonable and excessive to punish a
contractor for fraudulent behavior as evidenced by Texas Penal Code $ 32.49.

Under the Texas Construction Association's argument,32.49 would also be

excessive and unreasonable since the civil statutes it cited can release an invalid

lien and impose civil penalties for that invalid lien. There has been no dispute in

this case thaf 32.49 criminalizes refusal to execute a release of a fraudulent lien.

See Tex. Penal Code Ann. ç 32.49 (V/est 2011). This statute shows that the

Legislature was willing to criminalize fraudulent actions in relation to liens and did

not think it was unreasonable and excessive in light of the existing civil statutes

See id. In fact, the Legislature enacted 32,49, an amendment to 32.46, and Civil

Practice and Remedies Code 12.002 in the same house bill, with the same intent

13
across all three to protect documentary integrity and to protect victims of fraud.

Act of May 21, 1997, 75thL"g., R.S., ch 189, ç 2, 1997 Tex. Gen. Laws 189

(amended 2003) (current version at Tex. Penal Code Ç 32.aO;

Act of l|l4ay 21, t997,75thLeg., R.S., ch 189, $ 4, 1997 Tex. Gen. Laws 189;

Act of ll4ay 21, 1997,75thLeg., R.S., ch 189, $ 16, 1997 Tex. Gen. Laws 189

(amended 1999) (current version at Tex. Civil Prac. & Rem. Code $ 12.002);
House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. I 185,

75th Leg. R.S. (1997).

l4
 PRAYER

Civil penalties alone are not sufficient to deter or punish Appellants' actions,

This Court should reverse the judgment of the Second District Court of Appeals,

find that the evidence is sufficient to uphold Appellants' convictions, and affrrm

the judgment of the trial court. The State of Texas prays that the Court affirm the

judgment of the Court of Appeals

Respectfully submitted,

PAUL JOHNSON
Criminal District Attorney
Denton County, Texas

CATHERINE LUFT
Assistant Criminal District Attorney
Chief, Appe Division

District Attorney
1450 East McKinney
Denton, TX 76209
State Bar No. 24075169
(940) 34e-2600
FAX (e4o) 34e-27 st
lara.toml in@dentoncounty. com

15
 CERTIFICATE OF COMPLIANCE

The State certifies that the State's Reply to the Texas Construction

Association's Brief of amicus curíae in the instant cause contains a word count of

3217, said count being generated by the computer program Microsoft Word that

was used to prepare the document.

TO

CERTIFICA OF'SERVICE

I hereby certifo that on the 19'h day of August 2015, a true and correct copy

of the State's Reply to the Texas Construction Association's Brief

of amicus curiae was sent through efile.txcourt.gov by electronic mail

to: (l) Applicant's Counsel, Matthew J. Kita, matt@mattkita.com; (2) Texas
Construction Association's Counsel, John S. Polzer, jpolzer@canteyhanger.com,

Chris A Brown, cbrown@canteyhanger.com; and (3) the State Prosecuting

Attomey, Lisa C. McMinn, information@spa.

District Attorney

16