Honorable Harold B. Parish, Chairman           opinion NO. w-613
Privileges, Suffrage and Elections Committee
House of Representatives                       Re:   Whether or not there
Austin, Texas                                         could~be convictions for
                                                      false swearing or perjury
                                                     under the declaration
                                                     ,provisions to be signed
                                                     by.the elector6 when not
                                                     required to be notarized
                                                      or upon affidavit of a
                                                     witness.

Dear Mr. Parish:

          YOUI'opinion request concerning Eouse Bill No. 86 and Committee
Amendment No. 1 reads inpart as follows:

               "The Committee requests to be advised on the quest-
          ion,as to whether or not there could be convictions for
          false-witnessing or perijuryunder the declaration provi-
          sions to be signed by the electors when not required to
          be notarized or upon affidavit of a witness."

          House Bill No. 86 purports to amend Subdivision 4 of Section 37 of
the 'ElectionCode of the State of Texas, compiled in Vernon's Revised Civil
Statutes of Texas as the Election Code, Article 5.05. This bill reads in
part as,follows:

               "Such elector shall mark the ballot, or it shall
          be marked.by a witness at the direction of said elector
          in case of the latter's inability to mark such ballot
          because of physical disability, inthe presence of a
          Notary Public or other persons qualified under the law to
          take acknowledgements, and in the presence of no other
          person except said witness and/or such officer, and in such
          manner that-such officer cannot know how the ballot is
          marked, and such ballot shall thenin the presence of such
          officer be folded by the elector or by said witness in case
          of physical disability of said elector, deposited in said
          envelope, the envelope securely sealed, the endorsement fill-
          ed out, signed by the elector;"pr in case of physical disa-
          bility, then by the said witness for and in behalf of said
          elector, and certified by such officer and then mailed by
          said officer, postage prepaid, to the county clerk."
          (mphasis added)
Ronorable Harold B. Parish, Page 2.   (w-613)



           Article 302 of Vernon's Penal Code of the State of Texas, reads as
follows:

                "Perjury is a false statement, either written
           or verbal, deliberately and wilfully made, relating
           to something past or present, under the sanction of
           an oath, or such affirmationas is by law equiva-
           lent to an oath, where such oath.or affirmation is
           legally administered, under circumstances in which an
           oath or affirmation is required by law, or is neces-
           sary for the prosecution or defense of any private
           right, or for the ends of public justice."

           Article 310, 'Vernon'sPenal Code, reads as follows:

                "If any person shall deliberately and wilfully,
           under oath or affirmation legally administered,
           make a false statement by a voluntary declaration
           or affidavit, which is not required by law or made
           in,the course of a judicial proceeding, he is guilty
           of false swearing, and shall be punished by confine-
           ment in the penitentiary not less than two nor more
           thanfive years." (Emphasis added)

          It should be noted that both Article 302 and Article 310 of Vernon's
Penal Code require as anelement of prosecution that statements, declarations,
etc., be made under oath or affirmation legally administered. It has been
held that "the full force and effect of such statutes is to require that the
State prove in all prosecutions for perjury in this state that the false
statement was made under the sanction of an oath which had been legally ad-
;;;+;itered". Leslie Lowry v. State of Texas, 297 S.W. 2d 848 (Tex. Grim.


          In Weadock v. State, 118 Tex. Grim. R. 537, 36 S.W. 2d 757, the
Court held that to constitute a valid oath for the falsity of which perjury
will lie, there must be, in the presence of a person authorized to administer
it, an unequivocal act by,which affiant consciously takes upon himself the
obligation of an oath.

          It would seem from the above authority that perjury convictions would
lie where it could be proved by the State that an oath was actually taken by
the affiant in.the presence of a persoriauthorised to administer such oath.
The fact that the affiant signed a statement that appeared to be sworn to with-
out the actual proof that he was in.fact sworn would not support a conviction
of perjury.

          Committee Amendment No. 1 amends House Bill 86 so as to omit all
reference to a'Wotary Public and other persons qualified under law to take
acknowledgnents.
          Since the statement required by House Bill 86 as amended by Com-
mittee Amendment No. 1 is not to be made under oath or affirmation, a person
making a false statement would not be guilty of "perjury" or "false swear-
ing".

          Neither H. B. 86 nor Committee Amendment No. 1 contravenes any
Constitutional provision.

                                      SUMMARY

                        There could be no convictions for
                        false swearing or perjury under
                        the declaration provisions of H.B.
                        86 or Committee Amendment No. 1
                        signed by the electors when not
                        made upon oath or affirmation ler
                        gaily administered. H. B. 86 and
                        Committee Amendment No. 1 are
                        Constitutional.

                                                Very truly yours,

                                                WILLWIISON
                                                Attorney General of Texas




                                                     Cecil Cammack, Jr.
                                                     Assistant




CC:aw



OPINION COMMITTEE:

Geo. P. Blackburn, Chairman

Robert T. Lewis
Zellner J. Turlington
Thomas Burrus
Wallace P. Finfrock

REVIRWRDFORTREATTORNJ3Y     GENERAL
BY:
    Ii.V. Geppert
