# Liverman, Roger > Court of Appeals of Texas · March 11, 2015 URL: https://www.frixlaw.com/law-library/cases/4041638 ## Case - **Court:** Court of Appeals of Texas - **Decided:** March 11, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4041638 ## Opinion text 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. l 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 •'t 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 conjunctiYtn.te o/llccr for COlll'iC· li'Ol';; Ny 15. lion, lt wus not nuce;,ol'a.l'y to allcl;'e the C.J.i-1. F11n;.l.t: h(·rn' cerl i fkn.t•"~ to ; ly 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'ifu~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" ublic tlHlY worn th(·rping, 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 S1lJlJl 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,\iolrn or n•:.: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;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 "lle ...... 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 r1me - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4041638. Public record. Not legal advice.