                                                                                    PD-15595-14
                                                                COURT OF CRIMINAL APPEALS
March 11, 2015                                                                   AUSTIN, TEXAS
                                                             Transmitted 3/11/2015 12:17:00 PM
                        IN THE COURT OF CRIMINAL       APPEALS Accepted 3/11/2015 1:00:22 PM
                                                                                  ABEL ACOSTA
                                    OF TEXAS                                              CLERK

    THE STATE OF TEXAS,                  §
       APPELLANT                         §
                                         §
            v.                           §         Nos. PD-1596-14 I PD-1595-14
                                         §
    AARON LIVERMAN AND                   §
    ROGER LIVERMAN,                      §
       APPELLEES                         §


                           STATE'S BRIEF ON THE MERITS

                 FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
                    IN CAUSE NUMBER 02-13-00177-CR I 02-13-00176-CR
                                        AND
                       FROM THE 362ND JUDICIAL DISTRICT COURT
                               DENTON COUNTY, TEXAS
                     IN CAUSE NUMBER F-2012-0137-D I F-2012-0136-D

                                             PAUL JOHNSON
                                             Criminal District Attorney
                                             Denton County, Texas

                                             CATHERINE LUFT
                                             Assistant Criminal District Attorney
                                             Chief, Appellate Division
    Oral argument is requested.
                                             LARA TOMLIN
                                             Assistant Criminal District Attorney
                                             1450 East McKinney, #3100
                                             Denton, Texas 76209
                                             StateBarNo. 24075169
                                             (940) 349-2600
                                             FAX (940) 349-2751
                                             Iara. tomlin@dentoncounty.com
                       IDENTITY OF PARTIES & COUNSEL

Appellant .................................................. THE STATE OF TEXAS

                                                 PAUL JOHNSON
                                                 Criminal District Attorney

                                                 APPELLATE COUNSEL

                                                 CATHERINE LUFT
                                                 Assistant Criminal District Attorney
                                                 Chief, Appellate Division

                                                 LARA TOMLIN
                                                 Assistant Criminal District Attorney
                                                 State Bar No. 24075169
                                                 1450 East McKinney, #3100
                                                 Denton, Texas 76209

                                                 TRIAL COUNSEL

                                                 RICK DANIEL
                                                 LINDSEY SHEGUIT
                                                 Assistant Criminal District Attorneys


Appellees ....... .... ................ ........................ AARON LIVERMAN AND
                                                                 ROGER LIVERMAN

                                                 TRIAL AND APPELLATE COUNSEL

                                                 MATTHEW J. KITA
                                                 P.O. Box 5119
                                                 Dallas, Texas 75208
                                          TABLE OF CONTENTS


IDENTITY OF PARTIES & COUNSEL ................... ... .... ........................................ i

INDEX OF AUTHORITIES ............................................................................ .. ...... . v

STATEMENT OF THE CASE ................................................................................ . 1

REQUEST FOR ORAL ARGUMENT ..................... ......... .... .................... .. ............. 2

ISSUES PRESENTED FOR REVIEW .................... ............... .................................. 2

STATEMENT OF FACTS ............................. ........................................ .......... ......... 3

SUMMARY OF THE STATE'S ARGUMENTS .................................................... 3

       State's First Issue Presented ....................... .. .. .. ..... .... .. ......................... ............. 3

       State's Second Issue Presented ............................................ .... ..... ..... ..... ........... 4

ARGUMENT ............................................................................................................ 5

THE STATE'S FIRST ISSUE PRESENTED ......... ..... ................................. ......... .. 5

       It was the Legislature's intent under Texas Penal Code section
       32.46(a)(l) to criminalize the act of causing a court clerk to file and
       record a fraudulent lien ..................................................................................... 5

             The history of section 32.46 shows that "execute" was added to
             what is now 32.46(a)(l) and the Legislature's addition of "execute"
             should be given effect. .......... .. ......... .............................. .. .......................... 5




                                                                                                                           11
Contrary to the Second District Court Of Appeals' opinion, any
overlap between Texas Penal Code sections 32.46(a)(l) and
32.46(a)(2) in the process of signing, executing, filing or recording
fraudulent documents is allowable ....................................................... 9

    Subsection (a)(l) broadly covers any document that can be
    executed and subsection (a)(2) narrowly covers only certain types
    of fraudulent documents .................................................................. 9

    The Punishment of subsection (a)( 1) is a sliding scale in which
    the punishment fits crimes involving fraudulent liens, unlike
    subsection (a)(2) in which one punishment fits a certain kind of
    document. ....................................................................................... 10

    Documents that fall under subsection (a)(2) are "filed or
    recorded" because they cannot ever be executed, unlike a lien
    filed under the procedure found in the Texas Property Code ....... 11

    The overlap of "sign or execute" and "file or record" is
    allowable as subsection (a)(l) is more broad and encompass-
    ing than the narrow and exclusive subsection (a)(2) ..................... 12

The focus of section 32.46 should be on the deception and
the nouns describing the fraudulent documents, not the verbs
describing the process of signing, executing, filing, or recording
those documents, and the false filing of the lien should be a crime
in an effort to protect the integrity of documentary transactions ....... 14

The Second District Court Of Appeals' holding that under the plain
meaning of the words in section 32.46(a)(l), this case does not fall
under section 32.46(a)(l), leads to the absurd result that Appellees'
fraudulent use of liens was not a crime .............................................. 15

The bill analysis from the 1997 amendment to section 32.46
shows the Legislature's concerns with fraudulent documents,
including liens, and documentary integrity ........................................ 19

The Legislature intended to criminalize the act of causing a court
clerk to file and record a fraudulent lien under Texas Penal Code
section 32.46(a)(l) .............................................................................. 20

                                                                                                     lll
 THE STATE'S SECOND ISSUE PRESENTED ........................ .... ...... ............... . 21

        A clerk's actions of filing and recording a lien equate to "signing or
        executing" under Texas Penal Code section 32.46(a)(l) ............................... 21

              Appellees' statutory liens were only legally effective after
              Appellees filed the liens with the county clerk; therefore, the
              liens were only executed once the clerk filed and recorded
              the liens .................................................................................................... 21

              A clerk's actions of filing and recording a lien equate to "signing
              or executing" under Texas Penal Code section 32.46(a)(l) .................... 23

PRAYER ................................................................................................................. 24

CERTIFICATE OF COMPLIANCE ...................................................................... 25

CERTIFICATE OF SERVICE ................................................................................ 25




                                                                                                                             IV
                                     INDEX OF AUTHORITIES

Constitutional Provisions                                                                                     Page

Tex. Const. art. XVI, § 37 ....................................................................................... 21

Statutes, Codes and Rules

Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen.
 Laws 941 (amended 1993) (current version at Tex. Penal Code Ann.
 § 32.46 (Vernon Supp. 2014)) ........................................................................ 5, 7, 8

Act of June 19, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen.
 Laws 3653 (amended 1997) (current version at Tex. Penal Code Ann.
 § 32.46 (Vernon Supp. 2014)) ................................................................................ 6

Act of May 21, 1997, 75th Leg., R.S., ch 189, § 2, 1997 Tex. Gen. Laws
 1046 (amended 2003) (current version at Tex. Penal Code Ann.
 § 32.46 (Vernon Supp. 2014)) ................................................................................ 6

Act of June 10, 2003, 78th Leg., R.S., ch 198, § 2.138, 2003
 Tex. Gen. Laws 705 (amended 2007) (current version at Tex.
 Penal Code Ann. § 32.46 (Vernon Supp. 2014)) ................................................... 6

Act of June 18, 2003, 78th Leg., R.S., ch 257, § 15, 2003 Tex. Gen.
 Laws 1169 (amended 2007) (current version at Tex. Penal Code Ann.
 § 32.46 (Vernon Supp. 2014)) ................................................................................ 6

Act of June 20, 2003, 78th Leg., R.S., ch 432, § 4, 2003 Tex. Gen.
 Laws 1680 (amended 2007) (current version at Tex. Penal Code Ann.
 § 32.46 (Vernon Supp. 2014)) ................................................................................ 6

Act of May 17, 2007, 80th Leg., R.S., ch 127, § 4, 2007 Tex. Gen.
 Laws 155 (amended 2011) (current version at Tex. Penal Code Ann.
 § 32.46 (Vernon Supp. 2014)) ............................................................................. 6-7

Act of June 17, 2011, 82nd Leg., R.S., ch. 620, § 6, 2011 Tex. Gen.
 Laws 1493 (current version) .............................................................. ..................... 7




                                                                                                                    v
Gov't Code Ann.§ 51.901(Vernon2013) .............................................................. 20

H.J. of Tex., 63rd Leg., R.S., 4534 (1973) ................................................................ 5

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

Tex. Penal Code Ann.§ 1.02 (Vernon 2011) ..................................................... 15-16

Tex. Penal Code Ann.§ 1.05 (Vernon 2011) .......................................................... 16

Tex. Penal Code Ann. § 32.21 (Vernon 2011) ............. .......... ................................. 17

Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014) ...................................... passim

Tex. Penal Code Ann.§ 32.46(a)(l) (Vernon Supp. 2014) ............................. passim

Tex. Penal Code Ann.§ 32.46(a)(2) (Vernon Supp. 2014) .............. 9, 10, 11, 12, 18

Tex. Penal Code Ann. § 32.49 (Vernon 2011) .................................................. 16, 17

Tex. Prop. Code Ann.§ 53.001 (Vernon 2007) ..................................................... 21

Tex. Prop. Code Ann. § 53.022-53.056 (Vernon 2007) .......................................... 22

Tex. Prop. Code Ann.§ 53.251-53.260 (Vernon 2007) ................................ .......... 22

Tex. Prop. Code Ann. § 53.021 (Vernon Supp. 2014) ............................................ 22

Tex. Prop. Code Ann. § 53.052 (Vernon 2007) ................................................ 22, 23

Tex. Prop. Code Ann. § 53.057 (Vernon Supp. 2014) ............................................ 22




                                                                                                                   VI
Cases

Avery v. State
 359 S.W.3d 230 (Tex. Crim. App. 2012) ........................................... 10, 12, 13, 17

Boykin v. State
 818 S.W.2d 782 (Tex. Crim. App. 1991) ............................................................. 18

Cheney v. State
 755 S.W.2d 123 (Tex. Crim. App. 1988) ....................................................... 17, 18

CVN Grp. v. Delgado
 95 S.W.3d 234 (Tex. 2002) ...................................................................... 21, 22, 23

DeWitt v. Harris Cnty.
 904 S.W.2d 650 (Tex. 1995) .................................................................... 12, 13, 14

Dobbs v. State
 434 S.W.3d 166 (Tex. Crim. App. 2014) ....................................................... 7, 8, 9

Harris v. State
 359 S.W.3d 625 (Tex. Crim. App. 2011) ....................................................... 7, 8, 9

Liverman v. State
  447 S.W.3d 889 (Tex. App-Fort Worth 2014, pet. granted) ......................... 1, 13

Liverman v. State
  448 S.W.3d 155 (Tex. App.-Fort Worth 2014, pet. granted) ........................ 1, 13

Muniz v. State
 851S.W.2d238 (Tex. Crim. App. 1993) ....................................................... 7, 8, 9

State v. Wiesman
  269 S.W.3d 769 (Tex. App.-Austin 2008, no pet.) ................................ 14, 15, 17

Trinity Drywall Sys. v. TOKA Gen. Contrs., Ltd.
 416 S.W.3d 201(Tex. App.-El Paso 2013, pet. denied) .............................. 21, 23

Uribe v. State
 7 S.W.3d 294 (Tex. App.-Austin 1999, pet. refd) ............................................ 18

                                                                                                         vu
Other Authorities

2A Norman J. Singer, Sutherland's Statutes and Statutory Construction
 § 46.06 (5th ed. 1992) ............................................................................................ 13

Merriam-Webster Online Dictionary (21 Oct. 2014) .... ......... .......... ..... ... ....... . 22, 23

Appendices

Appendix A              [Orders Denying "State's Motion For Rehearing"]

Appendix B              [Orders Granting "States Amended Motion For The Change In
                        Notation of Opinion to 'Publish"']

Appendix C              [ Excerpt from Penal Code in Effect Before 1973 ]

Appendix D              [ Excerpt from Penal Code in Effect in 1925 from the Texas State
                        Law Library Website ]

Appendix E              [ Excerpt from 1974 Vernon's Code Annotated ]

Appendix F              [ House Comm. on Criminal Jurisprudence, Bill Analysis,
                        Tex. H.B. 1185, 75th Leg. R.S. (1997)]




                                                                                                                   viii
                 IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS

THE STATE OF TEXAS,                      §
   APPELLANT                             §
                                         §
      v.                                 §       Nos. PD-1596-14 I PD-1595-14
                                         §
AARON LIVERMAN AND                       §
ROGER LIVERMAN,                          §
   APPELLEES                             §


                      STATE'S BRIEF ON THE MERITS


TO THE COURT OF CRIMINAL APPEALS:

      The State, by and through its Assistant Criminal District Attorney,

respectfully submits its brief on the merits urging that the judgment of the Second

District Court of Appeals be reversed.



                         STATEMENT OF THE CASE

      Appellees were found guilty of securing the execution of a document by

deception on March 21, 2013 (C.R. at 48, 65).           Appellees appealed their

convictions, and the Second District Court of Appeals rendered acquittals in both

of their cases on October 9, 2014. Liverman v. State, 447 S.W.3d 889, 890 (Tex.

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

(Tex. App.-Fort Worth 2014, pet. granted). The State subsequently filed motions


                                                                                  1
for rehearing and motions to publish on October 23, 2014; the Second District

Court of Appeals denied the motion for rehearing and granted the motion to

publish on November 20, 2014 (see Appendix A [Orders Denying "State's Motion

For Rehearing"]; Appendix B [Orders Granting "State's Amended Motion For The

Change In Notation Of Opinion to 'Publish"']).



                     REQUEST FOR ORAL ARGUMENT

      Because the issue presented in this case - whether causing a court clerk to

file and record a lien on property is an execution of a document under Texas Penal

Code section 32.46 - has not been addressed by this Court, the State believes oral

argument would be helpful to the courts of the State of Texas and the parties. The

State therefore requests oral argument.



                     ISSUES PRESENTED FOR REVIEW

      It was the Legislature's intent under Texas Penal Code section
      32.46(a)( 1) to criminalize the act of causing a court clerk to file and
      record a fraudulent lien.

      A clerk's actions of filing and recording a lien equate to "signing or
      executing" under Texas Penal Code section 32.46(a)(l).




                                                                                 2
                         STATEMENT OF FACTS

      When Katheryn Hall's father and brother, Roger and Aaron Liverman, the

Appellees in this case, were released from prison, Ms. Hall offered them both jobs

at her company and they stayed in Ms. Hall's investment property (3 R.R. at 26,

31-34).   Eventually, Appellees' and Ms. Hall's work relationship deteriorated,

Ms. Hall fired Appellees in June 2008, Ms. Hall filed to evict Roger, and on

July 1, 2008, Roger was evicted (3 R.R. at 43, 46). Appellees filed liens against

Ms. Hall's investment property, claiming to have performed work they did not

perform on the property (3 R.R. at 20-22, 47, 49; State's Exhibits 1, 2). Cynthia

Mitchell, the official record-keeper for all Denton County records, testified that her

office filed and recorded Roger's mechanic's lien contract and Aaron's

miscellaneous general-fee document on July 22, 2008, the liens were executed, and

the liens were valid within a week (3 R.R. at 17-24).


                SUMMARY OF THE STATE'S ARGUMENTS

State's First Issue Presented

      The Legislature intended to criminalize the act of causing a court clerk to

file a fraudulent lien, as evidenced by the inclusion of the word "execute" in

section 32.46(a)(l). The word "execute" should therefore be given effect and any

overlap with the verbs "file or record" is allowable. Additionally, the verbs in

section 32.46 should not be the focus of the section, as the deception and the

                                                                                     3
documents involved should be the focus. The legislative history of section 32.46

further illustrates the Legislature's intent to criminalize Appellees' actions, and a

finding that their actions were not criminal is an absurd result. Therefore, the

evidence was sufficient in this case to convict Appellees' of securing execution of

a document by deception because the clerk's actions amounted to the clerk

executing the fraudulent liens under section 32.46(a)(l).

State's Second Issue Presented

      The clerk's action of filing and recording Appellees' lien, equated to

"signing or executing" under Texas Penal Code section 32.46(a)(l) because

Appellees' statutory liens were only legally effective after Appellees filed the liens

with the county clerk. Therefore, Appellees' liens were only executed once the

clerk filed and recorded the liens.




                                                                                     4
                                  ARGUMENT

                  THE STATE'S FIRST ISSUE PRESENTED

      It was the Legislature's intent under Texas Penal Code section
      32.46(a)(l) to criminalize the act of causing a court clerk to file
      and record a fraudulent lien.

The history of section 32.46 shows that "execute" was added to what is now
32.46(a)(l) and the Legislature's addition of "execute" should be given effect.

      The modem version of section 32.46 was first enacted in 1973. Act of June

14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 941 (amended 1993)

(current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)). 1 The

language of the 1973 version of section 32.46 is exactly the same as the current

version of 32.46(a)(l). Id.; see Tex. Penal Code Ann. § 32.46 (Vernon Supp.

2014). The previous version of section 32.46 was sections 1000, 1001, and 1003

of the penal code in effect prior to 1973 (see Appendix C [Excerpt from Penal

Code in Effect Before 1973]). Former section 1000, entitled "Falsely reading

instrument," most closely resembles what is now section 32.46(a)(l ):

      Whoever with intent to defraud shall, either by falsely reading, or
      falsely interpreting, any pecuniary obligation or instrument in writing,
      which would in any manner affect property, or by misrepresenting its
      contents, induce any one to sign such instrument as his act, or give
      assent to it in such manner as would make it his act, if not done under
      mistake, shall be confined in the penitentiary for not less than two nor
      more than five years.


      In 1973, the Legislature enacted a complete overhaul of the then existing penal
code. H.J. of Tex., 63rd Leg., R.S., 4534 (1973).

                                                                                    5
(Appendix C). See Tex. Penal Code § 32.46(a)(l). 2 Section 1000 of the former

penal code was unchanged from the 1925 version until 1973 when section 32.46

was codified (see Appendix D [Excerpt from Penal Code in Effect in 1925 from

the Texas State Law Library Website]). See Tex. Penal Code§ 32.46.

      The punishment scheme for section 32.46 was amended in 1993. Act of

June 19, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen. Laws 3653

(amended 1997) (current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp.

2014)). Before that amendment, all offenses under section 32.46 were classified as

third degree felonies.    Id.   After that amendment, there was a sliding scale of

punishment based on the value of the property that was at issue in the deception.

Id.   The next amendment to section 32.46 came in 1997, with the changes

discussed infra. Act of May 21, 1997, 75th Leg., R.S., ch 189, § 2, 1997 Tex. Gen.

Laws 1046 (amended 2003) (current version at Tex. Penal Code Ann. § 32.46

(Vernon Supp. 2014)). 3


2
       Section 1001, entitled "Substituting one instrument for another," dealt with
inducing someone to sign a different instrument then the person intended; and section
1003, entitled "Falsely personating another," dealt with a person impersonating another
in order to sign the assumed name to any instrument in writing (Appendix C).
3
       Amendments that followed in 2003 and 2007 specifically addressed medicare
fraud and offenses against the elderly that are not pertinent to the discussion here. Act of
June 10, 2003, 78th Leg., R.S., ch 198, § 2.138, 2003 Tex. Gen. Laws 705 (amended
2007) (current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)); Act of
June 18, 2003, 78th Leg., R.S., ch 257, § 15, 2003 Tex. Gen. Laws 1169 (amended 2007)
(current version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)); Act of June 20,
2003, 78th Leg., R.S., ch 432, § 4, 2003 Tex. Gen. Laws 1680 (amended 2007) (current
version at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)); Act of May 17, 2007,

                                                                                          6
      This Court is to give meaning to every word and phrase in a statute. Dobbs

v. State, 434 S.W.3d 166, 171-172 (Tex. Crim. App. 2014).                  It must be

''presume[ ed] that every word in a statute has been used for a purpose and that each

word, phrase, clause, and sentence should be given effect if reasonably possible."

Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). Further, it is a

cardinal rule of statutory construction that each sentence, clause, phrase, and word

be given effect as reasonably possible. Muniz v. State, 851 S.W.2d 238, 265 (Tex.

Crim. App. 1993 ).

      The prior section that most closely resembles section 32.46, former section

1000, did not include the word "execute" (Appendix C). Section 1000 charged a

crime if an individual defrauded another into signing or giving assent to any

pecuniary obligation or instrument in writing (Appendix C). In 1973, the word

"execute" was added to the statute. Act of June 14, 1973, 63rd Leg., R.S., ch. 399,

§ 1, 1973 Tex. Gen. Laws 941 (amended 1993). The "Practice Commentary"

below the section 32.46 in the first printed version of the 1973 version states that

the 1973 version of section 32.46 is "broader than Penal Code arts. 1000 and I 00 I"

(see Appendix E [Excerpt from 1974 Vernon's Code Annotated]). The Legislature



80th Leg., R.S., ch 127, § 4, 2007 Tex. Gen. Laws 155 (amended 2011) (current version
at Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014)). The most recent amendment to
section 32.46 in 2011 defined document, but was effective September 1, 2011, and only
covered offenses after that date thus does not apply to this case. Act of June 17, 2011,
82nd Leg., R.S., ch. 620, § 6, 2011 Tex. Gen. Laws 1493 (current version).


                                                                                      7
presumably added "execute" for a purpose and wanted "execute" to be given

effect. See id., Tex. Penal Code§ 32.46(a)(l). If "execute" has a narrow meaning

that only encompasses "sign," then "execute" does not have a purpose and is not

being given effect. See Harris, 359 S.W.3d at 629; Muniz, 851 S.W.2d at 265.

The statute has the phrase "sign or execute" presumably to criminalize both

causing someone to sign a document by deception and causing someone to execute

a document by deception. See Tex. Penal Code § 32.46(a)(l). If the Legislature

had intended for the statute to only cover "sign," it would have not added

"execute" in 1973; just as the Legislature no longer wanted "give assent" to be part

of the statute and did not include that phrase in the 1973 amendment. See Act of

June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 941 (amended

1993); Tex. Penal Code § 32.46(a)(l ).

      The history of section 32.46 shows that the word "execute" was added to the

statute in 1973, and this Court should give purpose and effect to "execute" as it is a

word included in the statute for a reason. See Dobbs, 434 S.W.3d at 171-172;

Harris, 359 S.W.3d at 629; Muniz, 851 S.W.2d at 265; Tex. Penal Code

§ 32.46(a)(l); Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen.

Laws 941 (amended 1993 ). Since "sign" immediately precedes "execute" in the

statute, this Court should give the word "execute" a broader definition than just

"sign," as the Legislature added "execute" for a reason. See Tex. Penal Code



                                                                                    8
§ 32.46; Dobbs, 434 S.W.3d at 171-172.         Therefore, Appellees' actions of

presenting their liens to the county clerk to file and record the documents should

fall under section 32.46 because they had the clerk execute their statutory liens.

See Tex. Penal Code§ 32.46; Dobbs, 434 S.W.3d at 171-172; Harris, 359 S.W.3d

at 629; Muniz, 851 S.W.2d at 265.

Contrary to the Second District Court Of Appeals' opinion, any overlap between
Texas Penal Code sections 32.46(a)(l) and 32.46(a)(2) in the process of signing,
executing, filing, or recording offraudulent documents is allowable.

Subsection (a)(l) broadly covers any document that can be executed and
subsection (a)(2) narrowly covers only certain types of fraudulent documents.

      Subsection (a)(2) of section 32.46 describes a very specific situation in

which a person causes a public servant to file a document purporting to be a

judgment or document from a purported state or United States court, or purported

judicial officers.   Tex. Penal Code Ann. § 32.46(a)(2) (Vernon Supp. 2014).

Subsection (a)(2) of section 32.46 was enacted for the specific purpose of

criminalizing the acts of individuals, specifically sovereign citizens, who were

recording or filing fraudulent "common law court" documents with the intention to

harass and intimidate public officials or ordinary citizens (see Appendix F [House




                                                                                 9
Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1185, 75th Leg., R.S.

(1997)]). See Tex. Penal Code Ann.§ 32.46(a)(2) (Vernon Supp. 2014). 4

       Subsection (a)(l) more broadly covers any document that is executed, in

contrast to subsection (a)(2), which narrowly covers false documents from false

courts that are filed or recorded. See Tex. Penal Code § 32.46. Since subsection

(a)(1) is more broad, it can encompass certain situations in which the execution of

any document is via the filing and recording of the document. See Tex. Penal Code

§ 32.46(a)(l ).

The Punishment of subsection (a)(l) is a sliding scale in which the punishment fits
crimes involving fraudulent liens, unlike subsection (a)(2) in which one
punishment fits a certain kind of document.

       In contrast to subsection (a)(2), wherein any offense under that section is a

state jail felony, the punishment under subsection (a)(l) is dependent on the

monetary value of the property affected by the deception, ranging from a Class-C

misdemeanor to a first-degree felony. See Tex. Penal Code § 32.46. Based on this

punishment scheme, subsection (a)(2) gives a standard punishment for trying to


4
      To the extent the Second District Court of Appeals opined that this specific case
would have been better suited filed under 32.46(a)(2), which included the "file or record"
language, the State notes:
       An appellate court's belief that an appellant's actions more closely
       resemble an uncharged offense than the offense actually charged is not a
       legitimate basis for an acquittal. Sufficiency of evidence is reviewed by
       comparing the evidence adduced at trial to the elements of the offense
       actually charged.
Avery v. State, 359 S.W.3d 230, 237 (Tex. Crim. App. 2012).

                                                                                       10
pass off documents from an illegitimate court, but subsection (a)( 1) bases the

punishment on the monetary value of the damages, which would presumably be

beneficial in the case of a lien where the punishment could be in line with the

monetary amount the defendant defrauded another out of by deception. See Tex.

Penal Code § 32.46. Here, this offense would fit more in line with a punishment

based on monetary value, considering that Appellees attempted to perfect liens

against the victim's property for a specific amount (3 R.R. at 20-22; State's

Exhibits 1, 2).

Documents that fall under subsection (a)(2) are "filed or recorded" because they
cannot ever be executed, unlike a lien filed under the procedure found in the Texas
Property Code.

         Further, the filing of "any purported judgment or other document purporting

to memorialize or evidence an act" of a purported court, judicial entity, or judicial

officer that is not expressly created or established under the Texas or United States

Constitutions does not execute the purported judgment or document by putting the

judgment or document in its final legally enforceable form.          See Tex. Penal

Code § 32.46(a)(2).      It is not executed because the documents under section

32.46(a)(2) can never be executed or put in legally enforceable form because the

court, judicial entity, or judicial officer they purport to come from does not legally

exist.    See Tex. Penal Code § 32.46(a)(2).     Documents that fall under section

32.46(a)(2) are always fraudulent and never valid, and it is therefore a crime to file



                                                                                    11
or record them. See Tex. Penal Code§ 32.46(a)(2). On the other hand, any person

who files a lien, and follows the procedure set forth in chapter 53 of the Texas

Property Code, has executed a valid lien against the property in question even if

the basis of that lien later is proved fraudulent. See Texas Property Code Ann. §§

53.001-53.260 (Vernon 2007, Vernon Supp. 2014). Thus, when a person deceives

another into filing, and therefore executing, a lien that is fraudulent with the intent

to defraud or harm another, they have violated section 32.46(a)(l). See Tex. Penal

Code§ 32.46(a)(l ).

The overlap of "sign or execute" and "file or record" is allowable as subsection
(a)(l) is more broad and encompassing than the narrow and exclusive subsection
(a)(2).

      There are numerous and sometimes broad criminal statutes in the Texas

Penal Code, and frequently an act can violate more than one statute. See Avery v.

State, 359 S.W.3d 230, 236 (Tex. Crim. App. 2012). This overlap in statutory

provisions is allowable. Id. Therefore, it is allowable for actions that would fall

under a definition of "file or record" in one section of the statute to also fall under

a definition of "sign or execute"            in another section of the         statute.

See id.; Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014).

      In its statutory interpretation of section 32.46, the Second District Court of

Appeals cites language used in De Witt v. Harris County: "when the Legislature

uses certain language in one part of the statute and different language in another,



                                                                                     12
the court assumes different meanmgs were intended."                 Liverman v. State,

447 S.W.3d 889, 891-892 (Tex. App.-Fort Worth, 2014, pet. granted), (citing

DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995), (quoting 2A Norman J.

Singer, Sutherland's Statutes and Statutory Construction § 46.06 (5th ed. 1992);

Liverman v. State, 448 S.W.3d 155, 158 (Tex. App.-Fort Worth 2014, pet.

granted), (citing DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995),

(quoting 2A Norman J. Singer, Sutherland's Statutes and Statutory Construction

§ 46.06 (5th ed. 1992). The State asserts that an interpretation that this case falls

under section 32.46(a)(l) does not violate this canon of statutory construction

because it is allowable for an action to overlap and be interpreted under either

section, despite the differing verbs used to describe the actions.           See De Witt,

904 S.W.2d at 653; see also Avery, 359 S.W.3d at 237. 5

       Subsection (a)(l) broadly covers the execution of any document effecting

property, which includes the lien in this case, and subsection (a)(2) narrowly

covers only the filing or recording of a purported judgment or document from a

purported court or judicial officer. See Tex. Penal Code § 32.46. Any overlap of

"sign or execute" with "file or record" is allowable. See Avery, 359 S.W.3d at 236.


5
        The court in De Witt found that one subsection in that statute at issue was broader
than the other, the broader statue encompassed the less broad subsection, and the absence
of certain language in the broader subsection did "not require the conclusion that the
Legislature intended something different" for the broad subsection "than was specified"
for in the less broad section. DeWitt, 904 S.W.2d at 653.

                                                                                        13
Furthermore, the absence of certain language in the broader subsection (a)(l) does

not require the conclusion that the Legislature intended different things in each

subsection. See DeWitt, 904 S.W.2d at 653.

The focus of section 32.46 should be on the deception and the nouns describing
the fraudulent documents, not the verbs describing the process of signing,
executing, filing, or recording those documents, and the false filing of the lien
should be a crime in an effort to protect the integrity of documentary
transactions.

      The gravamen of section 32.46 is the deception.           State v. Wiesman,

269 S.W.3d 769, 776 (Tex. App.-Austin 2008, no pet.). The statute defines two

ways in which a person can commit the offense:

      ( 1) causing another to sign or execute any document affecting
      property or service or the pecuniary interest of any person; or
      (2) causing or inducing a public servant to file or record any
      purported judgment or other document purporting to memorialize or
      evidence an act, an order, a directive, or process of a purported court
      or judicial officer not created or established under state or United
      States law.

Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014). While the Second District

Court of Appeals put the focus on the verbs in the two ways of committing this

offense, the focus should be on the nouns: the "any document" and the "purported

judgment or other document." See Tex. Penal Code § 32.46. The Third District

Court of Appeals has found that the purpose of section 32.46(a)(l) is to protect the

integrity of documentary transactions:

      As part of a chapter defining fraud offenses, penal code
      section 32.46(a)(l) prohibits the fraudulent use of a broad variety of

                                                                                  14
      deceptive practices to induce a person to sign or execute any
      document affecting the property, service, or pecuniary interest of any
      person, who may or may not be the person deceived. The statute thus
      serves to protect the integrity of documentary transactions by
      punishing those who use such transactions to defraud or harm another.

Wiesman, 269 S.W.3d at 776. Thus, the purpose of this statute is to discourage

people from harming others through fraudulent documents. See id. In order to

protect documentary integrity, it should be a crime when a person files a fraudulent

lien. See id. The focus should not be on the "sign or execute" and the "file or

record" verbs found in the subsections, but on the documents that are covered by

the statute. See id.; Tex. Penal Code § 32.46. Here, Appellees filed fraudulent

liens, and this action is the precise action that section 32.46(a)(l) was intended to

criminalize. See Wiesman, 269 S.W.3d at 776; Tex. Penal Code § 32.46.

The Second District Court Of Appeals' holding that under the plain meaning of
the words in section 32.46(a)(l), this case does not fall under
section 32.46(a)(l), leads to the absurd result that Appellees' fraudulent use of
liens was not a crime.

      Under the Second District Court of Appeals' reasoning, Appellees' actions

of filing false liens were not crimes because if this case is not a crime under

section 32.46( a)( 1), there is not another section under which this specific crime

would fall. The objectives of the Texas Penal Code are "to establish a system of

prohibitions, penalties, and correctional measures to deal with conduct that

unjustifiably and inexcusably causes or threatens harm to those individual or public

interests for which state protection is appropriate." Tex. Penal Code Ann. § 1.02

                                                                                   15
(Vernon 2011 ). The Code is not to be strictly construed, but "shall be construed

according to the fair import of their terms, to promote justice and effect the

objectives of the code." Tex. Penal Code Ann. § 1.05 (Vernon 2011). To deal

with Appellees' conduct that harmed Ms. Hall, section 32.46 must be construed

according to the fair meaning of its language to promote justice for Ms. Hall. See

Tex. Penal Code §§ 1.02, 1.05.

       This case would not fit under section 32.46(a)(2), as the sworn affidavits

filed by Appellees were not documents purported to be from a false court. See

Tex.   Penal   Code     § 32.46. 6      This    case   also   would not      fall   under

section 32.49, refusal to execute release of a fraudulent lien or claim, as there was

no evidence that the victim followed the necessary steps under section 32.49(a)(2)

by sending notice that she requested Appellees to release the liens. See Tex. Penal

Code Ann. § 32.49 (Vernon 2011 ).            While if the victim had followed the

procedures necessary in section 32.49 and there may have been a case against

Appellees if they had not released the liens, Appellees were the ones who filed the



6
        Subsection (a)(2) was added to Section 32.46 in 1997 in an effort to criminalize
the filing of fraudulent judgments and other documents purporting to create invalid liens
against public officials and private citizens (Appendix F). The new subsection added the
more specific crime of filing sovereign citizen documents but also discussed the ongoing
problem of people filing false liens with the county clerks in the state (Appendix F).
Despite subsection (a)(l) already being in existence before the 1997 amendment, the
Legislature intended to criminalize Appellees' actions, as evidenced by the bill analysis,
and this case falls under the portion of the statute that was in existence before the 1997
amendment (see Appendix F). See Tex. Penal Code§ 32.46.

                                                                                       16
fraudulent liens regardless of whether the victim asked for a release per the statute,

and Appellees should still be criminally responsible for their actions. See Tex.

Penal Code §§ 32.46, 32.49. Holding otherwise would place a further burden on

the victim, in addition to already having the false lien filed against her property.

See Tex. Penal Code §§ 32.46, 32.49. In addition, that section of the Code is

criminalizing the refusal to execute a release of the fraudulent lien, and section

32.46 criminalizes acts that put fraudulent liens into effect in an effort to protect

documentary integrity. See Tex. Penal Code § 32.46, 32.49; Wiesman, 269 S.W.3d

at 776. Appellees' actions would also not fall under Texas Penal Code section

32.21, forgery, as Appellees did not make the false liens purporting to be the act of

another, to have been executed at a time or place or in a numbered sequence other

than was in fact the case, or that the liens were copies of an original that did not

exist. See Tex. Penal Code Ann. § 32.21 (Vernon 2011 ).

      Even if this Court finds that Appellees' actions could have fallen under

another statute in the Texas Penal Code, this Court should try to harmonize the two

statutes, but the more specific statute shall govern any more general statute.

Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988); see Avery v. State,

359 S.W.3d 230, 236-237 (Tex. Crim. App. 2012) (overlapping statutory

provisions should not be held mutually exclusive).        Thus, here, where section

32.46(a)(l) specifically deals with someone having another execute a document by



                                                                                    17
deception, Appellees' actions should fall under 32.46(a)(l). See Tex. Penal Code§

32.46(a)(l); Cheney, 755 S.W.2d at 126.

      "When a statute is unambiguous, we must give effect to the plain meaning of

the words unless doing so would lead to absurd results."            Uribe v. State,

7 S.W.3d 294, 296 (Tex. App.-Austin 1999, pet. refd) (court found that in an

"indecency with a child by exposure" case, it did not matter whether the child saw

the appellant's genitals; the accused's intent was controlling); see Boykin v. State,

818 S.W.2d 782, 785 (Tex. Crim. App. 1991). If a statute is ambiguous or leads to

absurd results, a court may consider legislative history. Boykin, 818 S.W.2d at

785-86.    When the Legislature added subsection (a)(2) to section 32.46, it

discussed the problem of individuals filing fraudulent documents purporting to

create liens on real property with county clerks throughout the state (Appendix F).

These types of filings would not clearly fit under section 32.46(a)(2) if they were

not from a purported court or judicial officer, but the Legislature wanted these acts

to be criminal (Appendix F). See Tex. Penal Code Ann. § 32.46(a)(2) (Vernon

Supp. 2014).    Therefore, the county clerk executed Appellees' statutory liens;

another reading of section 32.46 would lead to the absurd result of Appellees not

committing a crime by filing the fraudulent liens (3 R.R. at 32-34, 52, 54-63, 109-

10, 114, 121-22, 128-29, 131, 133-34, 151-52, 154, 158; State's Exhibits 1-3). See

Uribe, 7 S.W.3d at 296; Tex. Penal Code Ann. § 32.46 (Vernon Supp. 2014).



                                                                                   18
Under the Second District Court of Appeal's opinion, the fraudulent conduct by

Appellees, conduct that compromises the documentary integrity of liens, is not a

cnme.

The bill analysis from the 1997 amendment to section 32.46 shows the
Legislature's concerns with fraudulent documents, including liens, and
documentary integrity.

        The bill analysis to the 1997 amendment to section 32.46 began by

discussing problematic fraudulent filings (Appendix F). The analysis cited both

filings that were invalid judgments from unrecognized courts, and liens, like the

fraudulent filing here (Appendix F). The analysis explained that both public and

private officials have been harmed and that these fraudulent documents are

"clogging the channels of commerce" (Appendix F). The analysis then went on to

discuss each of the bill's statutes and amendments to statutes to try to combat the

fraudulent document problem, including statutes regarding documents stimulating

the legal process, failure to release liens, perjury, tampering with government

records, impersonating public officers, fraudulent financial statements, fraudulent

judgment liens, and civil remedies available for persons harmed by fraudulent

documents, liens, and/or claims (Appendix F).          All of these statutes and

amendments illustrate the Legislature's concern with fraudulent documents

(Appendix F).




                                                                                 19
       Sections 13, 14, and 19 further highlight this intention, specifically in the

context of the Legislature's concern over fraudulent liens (Appendix F). Section

13 and 19 requires district and county clerks to complete one hour of continuing

education regarding fraudulent court documents and fraudulent document filings.

Id.   Section 14 added a subsection to the Government Code section governing

clerks of courts that included steps for clerks to take when they have a reasonable

basis to believe that a lien filed was fraudulent, including giving the owner of the

subject property notice of the fraudulent lien. Id.; see Gov't Code Ann. § 51.901

(Vernon 2013).

       This bill analysis clearly shows the Legislature's concern with fraudulent

documents being filed with clerks, including liens (see Appendix F). The 1997

legislature added and amended many statutes in order to prevent, criminalize, and

give relief to the victims of fraudulent liens (see Appendix F).         Given the

Legislature's concern with fraudulent liens, the Legislature would have certainly

wanted Appellees' actions to be criminal, and would not want to limit section

32.46(a)(l) so that individuals who present fraudulent liens to clerks do not fall

under section 32.46(a)(l) (see Appendix F). Tex. Penal Code§ 32.46.

The Legislature intended to criminalize the act of causing a court clerk to file
and record a fraudulent lien under Texas Penal Code section 32.46(a)(l).

       The Legislature included "execute" in section 32.46(a)(l) for a reason, and

"execute" should be given effect. The verbs "file or record" and "sign or execute"

                                                                                  20
may overlap and should not be the focus of section 32.46 over the deception and

the documents involved in the deception. The Legislature intended to criminalize

Appellees' actions as evidenced above, and finding that their actions were not

criminal is an absurd result. Therefore, the evidence was sufficient in this case to

convict Appellees of securing of execution of a document by deception because the

clerk's actions amounted to the clerk executing the fraudulent liens under section

32.46(a)(l ).

                THE STATE'S SECOND ISSUE PRESENTED

       A clerk's actions of filing and recording a lien equate to "signing
       or executing" under Texas Penal Code section 32.46(a)(l).

Appellees' statutory liens were only legally effective after Appellees filed the liens
with the county clerk; therefore, the liens were only executed once the clerk filed
and recorded the liens.

       Although a constitutional lien is self-executing in Texas, a statutory lien

exists through compliance with applicable statutes. Trinity Drywall Sys. v. TOKA

Gen. Contrs., Ltd., 416 S.W.3d 201, 207-09 (Tex. App.-El Paso 2013,

pet. denied); Tex. Const. art. XVI, § 37; Tex. Prop. Code Ann. § 53.001

(Vernon 2007). There are no notice or filing requirements for a constitutional lien

to attach to property, but the constitutional lien is not self-enforcing and statutes

provide for the enforcement of a lien.     CVN Grp. v. Delgado, 95 S.W.3d 234,

246-47 (Tex. 2002). "[T]he statutory lien has become the primary vehicle for

contract or protection."    Id. at 247; Tex. Prop. Code Ann. §§ 53.001-53.260

                                                                                   21
(Vernon 2007, Vernon Supp. 2014). Chapter 53 of the Texas Property Code sets

forth such a lien, and under that chapter a lienholder must meet specific

requirements for perfecting and enforcing the lien, including specific filing and

notice requirements. Delgado, 95 S.W.3d at 247; see Tex. Prop. Code Ann. §§

53.021, 53.057 (Vernon Supp. 2014); Tex. Prop. Code Ann. §§ 53.022-53.056,

53.251-53.260 (Vernon 2007). Under section 53.052, a person claiming the lien

must file an affidavit with the county clerk to perfect the lien. Tex. Prop. Code

Ann. § 53.052 (Vernon 2007).

         Here, in order for Appellees to enforce their purported statutory liens, they

had to perfect them; that is, they had to file the liens with the county clerk in order

to have the ability to enforce the liens under the Property Code. See Delgado, 95

S.W.3d at 246-47; Tex. Prop. Code§ 53.052. "Execute" is defined as "to carry out

fully:    put    completely    into    effect"   or "to   perform   what   is    required

to give validity to."        "execute." Merriam-Webster Online Dictionary.         2014.

http://www.merriam-webster.com/dictionary/execute (21 Oct. 2014).               When the

county clerk filed the liens, she was performing what was necessary to give

validity to Appellees' statutory liens and put those statutory liens into effect

towards subsequent purchasers. See id.; Tex. Prop. Code§ 53.052. By filing and

recording Appellees' liens, the county clerk "executed" the lien affidavits under

the      Texas    Property     Code.         See   Tex.    Prop.    Code   §      53.052;



                                                                                       22
"execute." Merriam-Webster Online Dictionary. 2014. http://www.merriam-

webster.com/dictionary/execute (21 Oct. 2014). While it is true that Appellees

would have had self-executing liens against the victim in this case if they had filled

out affidavits and kept them in a drawer, they only had valid statutory liens once

the affidavits were filed and recorded; thus, those statutory liens were executed

once the clerk filed and recorded the affidavits. See Tex. Prop. Code § 53 .052;

Delgado, 95 S.W.3d at 246-47; Trinity Drywall Sys., 416 S.W.3d at 207-09.

A clerk's actions offiling and recording a lien equate to "signing or executing"
under Texas Penal Code section 32.46(a)(l).

      A statutory lien is only valid and executed once it is filed and recorded; thus,

when a clerk files        and records a lien, that lien is executed under

section 32.46(a)(l). See Tex. Penal Code§ 32.46(a)(l); Tex. Prop. Code§ 53.052.




                                                                                    23
                                    PRAYER

      WHEREFORE, the State of Texas prays that the Court reverse the judgment

of the Second District Court of Appeals, find that the evidence is sufficient to

uphold Appellees' convictions, and affirm the judgment of the trial court.



                                             Respectfully submitted,

                                             PAUL JOHNSON
                                             Criminal District Attorney
                                             Denton County, Texas

                                             CATHERINE LUFT
                                             Assistant Criminal District Attorney
                                             Chief, Appella Division




                                                 1stant Cri · · al District Attorney
                                             1450 East McKinney, #3100
                                             Denton, Texas 76209
                                             State Bar No. 24075169
                                             (940) 349-2600
                                             FAX (940) 349-2751




                                                                                       24
                     CERTIFICATE OF COMPLIANCE

      The State certifies that the State's Brief on the Merits in the instant cause
contains a word count of 5284, said count being generated by the computer
program Microsoft Word that was used to prepare the document.




                         CERTIFICATE OF SERVICE

      A true copy of the State's brief has been sent by United States Mail, postage
prepaid, to counsel for Appellee, Matthew J. Kita, P. 0. Box 5119, Dallas, Texas,
75208, and to Matthew Paul, State Prosecuting Attorney, P.O. Box 12405, Austin,
Texas, 78711-2405, on this, the 11th day of March 2015.




                                                                  istrict Attorney




                                                                                     25
               APPENDIX A

[Orders Denying "State's Motion For Rehearing"]
                                                                          FILE COPY




                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00177-CR


AARON LIVERMAN                                                       APPELLANT

                                        v.
THE STATE OF TEXAS                                                         STATE




         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2012-0137-D



                                    ORDER



      We have considered the "State's Motion For Rehearing."

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of October 9, 2014 stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record .

      SIGNED November 20, 2014.
                                                     FILE COPY




                                    Isl Bill Meier

                                    BILL MEIER
                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ .




                                2
                                                                         FILE COPY




                         COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-13-00176-CR


ROGER LIVERMAN                                                       APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE




         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2012-0136-D



                                    ORDER



      We have considered the "State's Motion For Rehearing."

      It is the opinion of the court that the motion for rehearing should be and is

hereby denied and that the opinion and judgment of October 9, 2014 stand

unchanged.

      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.

      SIGNED November 20, 2014.
                                                     FILE COPY




                                    Isl Bill Meier

                                    BILL MEIER
                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.




                                2
                   APPENDIXB

[ Orders Granting "State's Amended Motion For The Change
          In Notation Of Opinion To 'Publish"']
                                                                       r'ILE COPY




                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00177-CR


AARON LIVERMAN                                                     APPELLANT

                                         V.


THE STATE OF TEXAS                                                      STATE



         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2012-0137-D



                                      ORDER



      We have considered the "State's Amended Motion For The Change In

Notion Of Opinion To "Publish"."

      The motion is GRANTED. It is ordered that the court's opinion of October

9, 2014 shall be published.

      The clerk of this court is directed to transmit a copy of the order to the

attorneys of record and all interested parties.

      SIGNED November 20, 2014.
                                                    FILE COPY




                                   Isl Bill Meier

                                   BILL MEIER
                                   JUSTICE


PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.




                               2
                                                                       FILE COPY




                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00176-CR


ROGER LIVERMAN                                                     APPELLANT

                                         v.

THE STATE OF TEXAS                                                      STATE



         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2012-0136-D



                                      ORDER



      We have considered the "State's Amended Motion For The Change In

Notion Of Opinion To "Publish"."

      The motion is GRANTED. It is ordered that the court's opinion of October

9, 2014 shall be published.

      The clerk of this court is directed to transmit a copy of the order to the

attorneys of record and all interested parties.

      SIGNED November 20, 2014.
                                                    FILE COPY




                                   Isl Bill Meier

                                   BILL MEIER
                                   JUSTICE


PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.




                               2
               APPENDIX C

[ Excerpt from Penal Code in Effect Before 1973 ]
        VERNON'S ANN OT A TED

    PENAL CODE
                     OF THE


        ST A TE OF TEXAS
    •

                 Volume 2A

               Penal Code
             Articles 979 -1268

         TRADE AND COMMERCE
    OFFENSES AGAINST THE PERSON




                :ICANBAS CITY• MO.

           VERNON LAW BOOK COMPANY




'
                                               :::;   ---       r
                                                                l




                                                            •

                          Copyright, l %1
                                 by
                    VERNON LAW BOOK COMPAr~Y




2A Tex.Peno.I St.
Art. 1000                               TRADE AND COMMERCE                                                    Tit. H

Art. 1000.                            [941] [546] [447] Falsely reading inst.n1ment
    Whoever with intent to defraud shall, either by fa ls ly r e ~1di ngr
or falsely interpreting, any pecuniary obligation or in;.:.;trum cnt in
writing, which would in any manner affect property, or by m is r ~ p1·e-
senting its contents, induce any one to sign such instrument ns his ad,
or give assent to it in such manner as would make it his Get. if nc t done
under mistake, shall be confined in the penitentiary n ot le::::s l h ; n two
nor more than five years. O.C. <147.
                                                Notes of Decisions
 E'.'ll fdence 3                                              2.    Offense
 Offe" ~e 2
                                                                Th~ rn~rc fact thr.t n             ~ ,1 :!1501 lV'           on
 Va0d1 ty 1
                                                              Hs. frt.(f~ tna;r }~'.\Yf!. b~·.:: 11 h i t r•;idO cl ~1 i-;    n
                                                              n1ortg,1pJ \Yill n r.-' ~ prr.11•!ud1;.· :\ pr<J:-- \~\.1 ti c.n
                                                              Uh~ler Lhis an k- ! .:..     ~ o r ·. '·:i t1ld ' iH ; faot
 Library retere11tes                                          that a d•1Nl to a. h ll1'Y: .' t,.·: Hl a hsc•l ute in
                                                              form may b.; ~hown by r :trol to h<: i 11 -
   flra'll ~8-                                                tcnded   a;i se~uritv for a 10.1 n , • "'' VY nn
        .J.S. l!' ro.ud   t   l'f>l
                                                              title, change the fact t hat ti1-:) iru :tnin1 i' n L
    li'onn, 1ndl 1ment. Wiii 011'• T~iu Crim-                 was legitirn<ltc s11l;j\<\! t for pr<•»(l" u lio n un -
  inal F rtns, 6Tu iEd., ' ll58i                               dtr this iirlicle. L.'wi:~ v.           ·11tl'C   (l'.1 tJ5) 48
  1.    V~lld l ty                                             Cr.R. HQ, St s.w. w~s.

     This aTU~& JJl'OS rlblng mlirepr0$~ntollon                3.    Evidence
  ''Inducing" lgm\ture or went 10 IMtru.
  numt aft eth11; 11rope t:y, ~u noJ un~n ­                         In NOsecution for misre1>re .. ('n\ilih' a writ-
  llUluU nallr       lnWinnrle.        notwltlut&l!ding WI&    ten instrument aft'ectin~ propeny, e\'i rk!l •'<:l
  of quoted word. toLarcy v. Slate (19.67)                     or senral  extraneous offe1rnr:.'; of lt:fend:•nt
  1~5 er.a H, ali2 s. w.~ -120.                                was a<lnilssibJe on issue oi rnotin~ aml in-
                                                               tent to commit offen~e r·ha n: c d. Brn!' t P r- v ·
                                                               State 0~5S) 165 Cr.R. 422, 308 f5. \.Y, ,~d :U.



   Art. lOOl.           [9-12] [M7] [448] Substituting one instrumont
                           for another
          Whoever :\Vit a intent t def
    in writing for anotheIT, ando b r~ud shall ~ubstitute one instrum~nt
    an instrume_nt materially Cliff Ytlus means mduce any person to sign
    shall be confined in th       .erentftom that which he intended to sign,
   ·:five yea:rs. 0.(l 44S. e Penitentially not less than two nor more than
        Library refer~'1ces: Fro.ud ~'GS 0
                                            1
        J='orm1 lndlctmt:r1t. WllllOl:l'i T   .J,s. IJ'tiud 116!.
                                                  eJUl8 Crbnin&l i'oroa, 6th E11., t 1259.


       Art. 1002. ~943]           Al&?lng or ln •
            If any person without                Jtning _public records
       liciously change, ~ter, m\ltlla:hol'ity of law, shall wilfullf and roa-
       pape.r, .record r a~ otl\er : ' de$b-oy, deface or injure any book,
       ~o be kBJ>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<n&l899, p. ao1.
Ch. l                                                    FORGERY                                       Art. 1003

                                                 Notes of Decisions

Evidence 4                                                          3.      Indictment
Indictment 3                                                            In an indictment for violation or this ar-
lnst.-uctlons 5                                                     ticle, the commissiot1 of the oft<~nsc IJY al·
Offense 1, 2                                                        tcrh1h", chnng-lng, n1ulilatlng, dest royint;.
     "Public record''          2                                    nnd injuring- the do(•u1nento> may lJe alleged
                                                                    conjunctiY<..,h'. though they are incon3istent
                                                                    with each other. \Vhere the prosecution
                                                                    rel1ed on Uw dcstniction of doeumr.nts in
Library references                                                  tho keepini; of 11 E>tn.te o/llccr for COlll'iC·
   li'Ol';; Ny <3=;>15.                                             lion, lt wus not nuce;,ol'a.l'y to allcl;'e the
   C.J.i-1. F11n;<)ry § 28.                                         m:u111cr of destruclion, and allegations or
   Fo1·m, i11()ktnic11t "'illi'on's T»xa• Crim-                      at leration were surplusage, so that the fn -
i110.! Forms, Gth Ed. , § l'.!GO.                                   rl!ctmen L was not invnlld for failure lo
                                                                    :; la.Lo the manner o! alteration. Smith v.
1.    Off ens~                                                      s ta.to (1920) 87 Cr.R. 219, 220 S. W. 552.
     Tht1 wril.len answers           of nrplic:i.nt~ for
tf~>.l.t: h(·rn' cerl i fkn.t•"~ to <J.1.Hostion,; a >; l<"d on     4.      Evidence
Ox<uniua1.im1. '"''hi,..h 111u"t l»:!. fonvn1·t11:d to                Tn prosecution of county judge who had
1h~ ~ f :tt c !n1perir1t~::nd~11: t of education and                had controversy with members of ('Otn·
k~.~1~: l>y hhn unUl dt"': li\'nr~'·d to the !~tat(!                111!,,sioncri;' court concerning purchase of
hoari..l t1f exan1I!11 ~ rs fnr Rf'aclit1g-, tu·..; pn~             road machirwry o.nd lrnd erased from
PH'i< l'1' q11ir<':.l by la.w to he kept hy ·~ !ilalo               rnir1utes of meeting recital that he h11d re·
oJU c;t: r·. ~o 1h:tt Oi~iJ· n1aliciou.s d(1 ~l t 1 ucti 1 'Jl      tired from courtroom and rC>fu~e•l 10 net
h; :1.. f,•louy.      Aftc·r th~ :ln .~ \\·0rs of uppli--           i.1~ chn,irman, and other recital~ ::>howing
cn.nt~ for u:~ar-hcrs" <''~rl ith·n.tP~ t.o the ax~                 ek<'lion of ano ther chairma.n, evi•.lenc~
aml11 1t tio n que.~tion;; lmu bcu1 <leii\'<;rul to                 was insufficfont to sustain conviction for
an ''mploy.~ of the ~tat(l m1pc·rint('1Hl~nt,                       wi!lf111ly nnd maliciously allerlng a 1,>ublic
tlHlY worn th(·r<'urtcr in hi~ kei.>ping, so thnt                   reenrtl. Garlington '" St.ate (1937) 133 Cr.
O•H' who proc1.H't:•1 thrnn from th(' expn''"'                          R   213,   JO~   S.W.2d 752.
!"Olli()ttny,hy which iJwy were d1ipp,~d 10
tho :StUle S1lJl<'rin tP l\t] (>Jl t, 'll~il clo ~ tl'Oy••d         5.      Instructions
t\\('l\l, Was g'Ui\t~· o( clr s troyilll~ •.1oc\l!TI~' lilS
                                                                          In pros0c11tion of county JudgH for al-
in th!' kC>C'pini;:- of rl 1iul,\i<' ofn.;,'r.         Smith
                                                                        tr<ing & public rc:cor<l hy erasincr from
v . NLato lln2ii) 87 Cr H 2\'J '·"'D f';            w-    C,'·'
     Fal~;~entry in new • <:~:<hl;,;ok-in~~nd~· rl ";~
                                                                        m\rrntcs of meeiing of con11nls.•ioner:;;'
                                                                        court recital th:.H he hau rcUred from
bD     Part of county \Jt>olrn or n•:<·oun t wa..~
not "1nutil11Uon, de5trudion, defa ci ng-, or                           cot1rtroom and refused to a.ct as chairman
nltcril'll; of Ptihlic record" within th l~ nrti-                       a.nd other recitals showing eJecUon or an·
                                                                        olher chafrma.n, Ju<lge'3 charge for nc-
cl'"· ?>.: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><l C"ondl lions morn burdensome t<>
hnd b<>en recorded therein bv .! •OIJt;~ on~                            jwlg-0 thnn evi.J<'nce wnrranted. Ga.rllni;--
authorize<! to do !'O. ;>;ogueira ·,., Slate                            to!l v. Sta.to (1937) 133 Cr.R. 21S, 109 !'i."'·
 Cln3) 123 Cr.R. HO, 59 S. W 2d 831.                                    2d 752.




 Art. 1003.                        [944] [548] [449]                         Falsely pcrsonating another
    If one shall falsely pcrsonate another, whether bearing the same
 name o · not, and, in such assumed character, shall give authority to
 any pe1'son to sign such assumed name to any instrum ~nt in writing
 which, if genuine, would create, increase, climi.n ish 01· discharge any
 Pecuniary obligation, or would transfer, or in any way affect any
 P 'o}lerty, he shall be confined in the penitentiary not less than two nor
 rnere than seven years. O.C. 449.
      Library ro1'erenc11a: '.False Personatlon e=>l, 2; C.J.S. False Personallon H 1-3.
      Form: fn lottnent. Wlllson's Texas Crlmlne.t Forms, 6th Ed., § 1261.

                                                                  IS9
                   APPENDIXD

[Excerpt from Penal Code in Effect in 1925 from the Texas
              State Law Library Website ]
    PENAL CODE .
                   OF THE




STA TE OF TEXAS

ADOPTED AT THE REGULAR SESSION OF THE
       THIRTY-NINTH LEGISLATURE
                      1925




PUBLISHED BY AUTHORITY OF THE STATE OF TEXAS




                 l. C. IALOWlft I S'lHI
                    ITATI P•INTlH
                        AUtTIN
                      A BILL
                  TO BE ENTITLED
"AN ACT to Adopt and Establish a 'PENAL ConE' and a
'CODE OF CRIMINAL PROCEDURE' for the State of Texas."

Be It ·'Enacted by the Legislature of the State of Te~as:
   SECTION 1. The following Titles, Chapters and Ar-
ticles are hereby adopted and shall hereafter constitute
and be known as the PENAL Coo·E of the State of Texas:
              OFFENSES AFFECTING WRITTEN INSTRUMENTS.                                                  235

                                          TITLE 14
                              TRADE AND COMMERCE.
                                   Chapter                                                    Chapter
Offenses Affecting Written In-                          Blue Sky Law.. . . . . . . . . . . .         8
  struments . . . . . . . . . . . . . .  1              Agricultural     an•d Livestock
Forgery of Land Titles, Etc. .           2                Pools . . . . . . . . . . . . . . . . . .  9
Counterfeiting . . . . . . . . . . . .   3              Protecting Movement of Com-
Warehouses and Cotton. . . . .           4                merce . . . . . . . . . . . . . . . . .   10
Weights and Measures. . . . . .          5              Gasoline and Petroleum Pro-
Labels, Trade Marks, Etc... ,            li               ducts . . . . . . . . . . . . . . . . . . 11
Assumed Nanie . . . . . . . . . . . .    7              Miscellaneous Offenses . . . . . . 12
                                       CHAPTER ONE.
    OFFENSES AFFECTING WRITTEN INSTRUMENTS.
                                            Article                                                  'Article
"l<"orgery" . . . ........ , . . . . . . . • . . 979    Flllln~ up over signa.ture ........ 992
Forgery of will .................. 980                  P e r.::;on not guilty, wh en. . . . . . . . . ~93
Forgery of obligation of foreign                        Altering teacher's ci!rtific<1-te ...... 994
   government . . . . . . . . . . . . . . . . . . 981   Penn.ltv f r forP.'ery . . . . . . . . . . . . . . 995
Passing obligation of foreign gov-                      Passing forged Instrument ........ 996
   ernment ...................... 982                   Preparing· implements for forg-ery. 997
Possession' of obligation of foreign                    Possession with Intent to pass ... 998
   government ...........• , . , . . . . 983            Evidence In case of bank h!lJs .... 999
Alteration also forgery.. . . . . . . . . . 98 4        Falsely reading instrument ....... 1000
Intent necessary . . ............. !lilo                Substituting one instrument for
"Instrument in writing", ••..••••• 986                     another . . .................... l 001
"Alter" . . ... ·...........•....... 987                Altering or Injuring public rec-
"Another" ..•..........•....... , 988                      ord.!! ...•.•..•..•......•••••••• 1002
"Pecuniary obli~ation". . . . . . . . . . . 989         Falsely persr•nntlng anotl-ier ...... 1003
"Transferred or in any manner                           False personaUon In acknowledg-
   have affected" ...· .........•..... 990                 ments ........................ 1004
All participants guilty ........... 991                 Procedure . . ....... . ............ 1005

  Art. 979. [924] [530] [431] "Forgery".-He is guilty of
forgery who without lawful authority, and with intent to injure
or defraud, shall make a false instrument in writing purporting
to be the act of another, in such manner that the false instru-
ment so made would (if the same were true) have created,
increased, diminished, discharged or defeated any pecuniary
obligation, or would have transferred, or in any manner have
affected any property whatever. [O. C. 431.]
   Art. 980. Forgery of will.-Any person who executes what
purports to be the last will and testament of another, without the
consent of such other person, is also guilty of forgery. Prose-
cution under this article may be begun at any time after such
forgery is committed and within five years after the death of
the purported testator, but not thereafter. [Acts 1919, p. 119.]
   Art. 981. Forgery of obligation of foreign government.-He
is guilty of forgery who without lawful authority and with in-
tent to injure or defraud shall falsely make, alter forge or
counterfeit any bond, certificate, obligation, or instrument in
writing having a value or purporting fo be of value issued by
or purporting to be issued by or under the authority or direc-
tion of any foreign government or de facto foreign government,
or any officer or agent of any foreign· government or de facto
foreign government, or any person or persons claiming to act
by or under the authority of any foreign government or de facto
foreign government or claiming by right of any office, military
.23.6                TRADE AND COMMERCE .
 or civil, to have a right in any foreign country to issue money,
 bills of exchange, notes, or any papers circulating as money or
 mediums of exchange in any foreign country or portion thereof,
 or purporting to be redeemable in money or other thing of value,
 and any person violating any of the provisions of this ~rticle
 shall be punis'1ed as provided in article 995. [Act Sept. 16,
 1914.]
     Art. 982. Passing obligation of foreign: government.-If any
  person shall knowingly pass as true or attempt to pass as true
  any such forged instrument in writing as is mentioned and
  defined in article 981 he shall be punished as provided by article
  996. [Act Sept. 16, 1914.]
     Art. 983. Possessing of obligation of foreign government.-
  If any person shall knowingly have in his possession any instru~
  ment of writing, the making of which is by law an offense under
  the provisions of article 981 hereof, with intent to use or pass
  the same as true, he shall be punished as is provided in article
  998. [Act Sept. 16, 1914.]
     Art. 984. [925] [531] [ 432] Alteration also forgery.-He
  is also guilty of forgery who, without lawful authority, and with
  intent to injure or defraud, shall alter an instrument in writing
' then already in existence, by whomsoever made, in such manner
  that the alteration would (if it had been legally made) have
  created, increased, diminished, discharged or defeated any pecu-
  niary obligation, or would have transferred, or in any manner
  have affected any property whatever. [O. C. 432.]
     Art. 985. [926] [532] [433] Intent necessary.-The false
  making or alteration, to constitute forgery, must be done with
  intent to injure or defraud, and the injury must be such as
  affects one pecuniarily, or in relation to his property. [O. C.
  442.]        .
     Art.· 986. [927] [533] [ 434] "Instrument in writing".-
  The words "Instrument in writing," as used in this chapter, in-
  clude every writing purporting to make known or declare the
  will or intention of the party whose act it purports to be,
  whether the same be of record or under seal or private signa-
  ture, or whatever other forni it may have. It must be upon
  paper or parchment, or some substance, made to resemble either
  of them. The words may be written, printed, stamped or made
  in any other way, or by any other device. And the words "in
  writing," "write," "written," include all these modes of mak~
  ing. An instrument, partly printed or stamped, and partly
  written, is an instrument in writing. In order to come within
  the definition of forgery, the signature, when made otherwise
  than by writing, must be made to resemble manuscript. [O. C.
  434.]
     Art. 987. [928] [534] [ 435] "Alter"-The word "alter,"
  in the definition of forgery, means to erase or obliterate any
  wol'd, letter or figure, to extract the writing altogether, or to
  substitute other words, letters or figures for those erased, oblit-
  erated or extracted, to add any other word, letter or figure to
        OFFENSES AFFECTING WRITTEN INSTRUMENTS.                · 237

the original instrument, or to make any other change whatever
which shall have the effect to create, increase, diminish, dis-
charge or defeat a pecuniary obligation, or to transfer, or in
any other way affect any property whatever. [0. C. 438.]
     Art. 988. [929] [535] [ 436] "Another'' .-The instrument
must purport to be the act of "another," and within the mea~­
ing of this word, as used in defining forgery, are included this
State, the-United States, or either of the States or Territories
of the Union; all the several branches of the government or
either of them; all public or private bodies, politic and corpo-
rate; all courts; all officers, public or private, in their official
 capacity; all partnerships in professions or trades; and all other
 persons, whether real or fictitious, except the person engaged in
 the forgery. [0. C. 439.]
     Art. 989. [930] [536] [ 437] ''Pecuniary obligation". -
 "Pecuniary obligation" means every instrument having money
 for its object, and every obligation for the breach of which a
 civil action .for damages may be lawfully brought. [0. C. 440.J
     Art. 990. [931] [537] [ 438] "Transferred or in any man-
 ner have affected".-By an instrument which would "have trans-
 ferred or in any manner have affected" property, is meant every
 species of conveyance, or undertaking in writing, which sup ..
 poses a ri~ht in the person purporting to execute it, to disppse
 of or change the character of property of every kind, and which
 can have such effect when genuine. [0. C. 441.]
     Art. 991. [932] [538] [ 439] All participants guilty.-One
 is guilty of making or altering, who, knowing the illegal purpose
  intended, shall write, or cause to be written, the signature, or
  the whole or any part of a forged instrument. All persons en-
  gaged in the illegal act are deemed guilty of forgery. [0. C.
  435.]
      Art. 992. [933] [539] [ 440] Filling up over signature.-
  It is a forgery to make, with intent to defraud or injure, a writ-
  ten instrument, by filling up over a genuine signature, or by
  writing on the opposite side of a paper so as to make the signa-
  ture appear as an indorsement. [0. C. 436.]
      Art. 993. [934] [540] [ 441] Person not guilty, when.-
  When the person making or altering an instrument in writing
  acts under an authority which he has good reason to believe, and
  actually does believe, to be sufficient, he is not guilty of forgery,
  though the authority be in fact insufficient and void. [O. C.
   437.]
      Art. 994. [935] Altering teacher's certificate.-Whoever
   shall wilfully raise, change, or alter any teacher's certificate or
   diploma, or other instrument having the force of a teacher's cer-
   tificate, shall be deemed guilty of forgery. [Acts 1893, p. 205.]
      Art. 995. [936] [541] [442] Penalty for forgery.-Any
   person guilty of forgery shall be confined in the penitentiary
   not less than two nor more than seven years. [O. C. 433.]
      Art. 996. [937] [542] [ 443] Passing forged instrument.-
   If any person shall knowingly pass as true, or attempt to pass
   as true, any such forged instrument in writing as is mentioned
238.                TRADE AND COMMERCE.

and defined in the preceding articles of this chapter, he shall be
confined in the penitentiary not less than two nor more than five
years. [0. C. 443.]
   Art. 997. [938] [534] [ 444] Preparing implements for
forgery.-Whoever shall prepare in this State any implements
or materials, or engrave any plate for the purpose of being used
in forging the notes of any bank, whether within this State or
out of it, and whether the same be incorporated or not, or who
shall have in his possession in this State any such implements,
materials or engraved plate, with intent to be used for the pur-
pose above mentioned, shall be confined in the penitentiary not
less than two nor more than five years. [O. C. 444.]
   Art. 998. [939] [544] [ 445] Possession with intent to
pass.-If any person shall knowingly have in his possession
any instrument of writing, the making of which is by law an
offense, with intent to use or pass the same as true, he shall be
confined in the penitentiary not less than two nor more than
five years. [O. C. 445, Acts .1858, p. 169.]          ·
   Art. 999. [940] [545] [ 446] Evidence in case of bank bills.
-Upon a trial for forgery of any bank bill, or for passing or
attempting to pass any such bill as true, or for knowingly hav-
ing in possession any such forged bank bill, evidence that bills
or notes purporting to be issued by any bank are commonly re-
ceived as currency, or proof of the existence of such bank by
parol testimony, shall be deemed sufficient to show its legal es-
tablishment and existence. [0. C. 446.]
   Art. 1000. [941] [546] [ 447] Falsely reading instrument.
-Whoever with intent to defraud shall, either by falsely read-
ing, or falsely interpreting, any pecuniary obligation or instru-
ment in writing, which would in any manner affect property,
or by misrepresenting its contents, induce any one to sign such
instrument as his act, or give assent to it in such manner as
would make it his act, if not done under mistake, shall be con-
fined in the penitentiary not less than two nor more than five
years. [O. C. 447.]
   Art. 1001. [942] [547] [ 448] Substituting one instrument
for another.-Whoever with intent to defraud shall substitute
one instrument in writing for another, and by this means induce
 any person to sign an instrument materially different from that
which he intended to sign, shall be confined in the penitentiary
not less than two nor more than five years. [O. C. 448.]
   Art. 1002. [943] Altering or injuring pubJic records.-If
any person, without authority of law, shall wilfully and mali-
ciously change, alter, mutilate, destroy, deface or injure any
 book, paper, record or any other document, required or per-
mitted by law to be kept by any officer within this State, he shall
 be fined not exceeding five thousand dollars, or imprisoned in the
 penitentiary not less than one nor more than five years. [Acts
1899, p. 301.]
    Art. 1003. [944] [548] [ 449] Falsely personating another.
 - I f one shall falsely personate another, whether bearing the
          OFFENSES AFFECTING WRITTEN INSTRUMENTS.                              239
same name or not, and, in such assumed character, shall give
authority to any person to sign such assumed name to any in-
strument in writing which, if genuine, would create, increase,
diminish or discharge any pecuniary obligation, or would trans-
fer, or in any way affect any property, he shall be confined in the
penitentiary not less than two nor more than seven years. [O.
c. 449.]
   Art. 1004. [945] [549] [ 450] False personation in ac-
knowledgments.-If any person shall falsely personate another
whether bearing the same name or not, and in such assumed
character shall, before any officer authorized by law to authen-
ticate instruments of .writing for registration, acknowledge the
execution of an instrument of writing purporting to convey,
or in any manner affect, an interest in property, such instru-
ment purporting to be the act of the person whose name is
so assumed, and the acknowledgment thereof being such as
would entitle the instrument to be registered, he shall be con-
fined in the penitentiary not less than two nor more than ten
years. . [O. C. 450.]
   Art. 1005. [946] .[549a] [ 450a] Procedure.-A conviction
for any offense mentioned in articles 979, 996 and 998 shall be a
bar to any other prosecution under said articles based upon the
same transaction or same forged instrument of writing. One
or more of said several offenses may be charged in separate
counts in the same indictment, and prosecuted together to final
judgment without election by the State as to which it relies upon
for a cdnviction. A judgment of conviction shall specify which
offense or under which count the defendant is found guilty, and
shall assess but one penalty not exceeding the greatest punish-
ment fixed by law to the highest grade of offense of which de-
fendant is convicted. It is unlawful for any county or district
attorney, or any person acting as such, to wilfully or knowingly
 demand or receive fees for more tl'l.an one prosecution that could
 have been combined or prosecuted in one indictment, subject to
 the penalties prescribed by law for the punishment of extortion
 of illegal fees. [Acts 1895, p. 106.]

                       CHAPTER TWO.
                FORGERY OF LAND TITLES, ETC.
                                 Article                                     Article
"Forgery of patents, etc ......... 1001.i   Non-residents ma:v commit ....... 1009
False certiftcate by officers ...... 1007   Proof and aUegations ........ . .... 1010
Knowin'gly uttering forged Instru-          Rules in forgery appllcat>le ...... 1011
  ments ........................ 1008
   Art. 1006. [947] [550] [ 451] "Forgery of patents," etc.
-Every person who falsely makes, alters, forges, or counter-
feits, or causes or procures to be falsely made, altered, forged,
or counterfeited, or in any way aids, assists, advises, or encour-
ages the false making, altering, forging, or counterfeiting of any .
certificate, field notes, returns, survey, map, plat, report, order,
decree, record, patent, deed, power of attorney, transfer, assign-
ment, release, conveyance, or title paper, or acknowledgement,
              APPENDIXE

[ Excerpt from 1974 Vernon's Code Annotated ]
      Vernon~
TEXAS CODES
 ANNOTATED


    PENAL CODE
  Sections 28.01 to 35




        Ii T, PA 1J L, JllJlll'lf·
   WEST PUB LIS 111 NG 0 0.
                                         COPYRIGHT @ 1974
                                                By
                                        WEST PUBLISHING CO.




                                                              \
                            f       •




                        I       •

J V.T.C.A.Pet111 Code
3"1~1P87
    Ch. 32                                     FRAUD                                    §   32.46

                                           Cross Reterences
                                                         § 32.03.




 " wner" defined,
 "P r. on'' (lefln d, •
 "Property'' defined,

                                              § 12.33.




                                         ;Libraq References
    •.mb zzlem nt   ~I el   s q .. 52.                   .J, . Emtiez.zlement §§ J et se .. 48.


§    32.46.    'ecuring Execution of Do ument by D ception
   (a)    person commits an offense if, with intent to defraud or
ha1·m any person, he, by deception, causes another to sjgn or execute
any document affecting p1·operty 01· service or the pecuniary interest
of any person.
   (b) An offense under his section is a felony of the thi1·d degl·ee.
                              PRACTI E COMME TARY
                    By Seth. S. Searcy 111 and Janies R. Patterson
                                  of tke Austi21 Bar
       This section is lightly broader than Pen_nl ode arts. 1000 and
     1001 (falsely reading or subs ituting instrum~L), since it co ers
     any form of decep ion while those ai·ticJes reci ed specifi kinds of
      deception.
        The offense con ists of two principal elements- intent to defraud
     or harm and a deception that cau es another to sign or execute a
     document affecting property, service, or pecuniary interest. 'De-
     ception' is not defined for this chapter and the kinds of collduct in~
     eluded must be d termined by the cou1-ts. lt is de.fined for Chapter
     31 (theft), however, and that definition may pl'ovide some guidance,
    see Section 31.0L
       This offens is omplete even though the acto~ does not intend
    to benefit him elf or other , and by virtue of the definition of
    "harm," see Section 1.07, it is not necessary th t the injury in-
    tended be financial.



                                             671
                                                                                             Title 7
§ 32.46                   OFFENSES AGAINST PROPERTY


                                         llistorical 'N'ote
  Prior Law: Vernon's Ann.P.C. arts. 1000,             Comparative Laws:
1001. 1003.                                             ~Iodel Pena\ Code 11962). § 224.l·L


                                         Crosa Referen.cea
Causation, see § 6.04.
"Harm" defined, see§ l.07(a)(16).
"Person" defined, see§ 1.07(a)(27).
"Property" defined, sec § 32.01!2).
"Service" defined, sec § 32.01(3).
Thlrd-degn~e felo11y punishment, see § 12~34.


                                        Library References
   Fraud e=>68, 69.                                      C.J.S. Fraud H 154. 155 et se11.



                                         Notes of Deolliona
 In general 2                                           lniitrum nt was t gl,lima e . u j c t fo r pro •
 Evidence 3                                             ecuUon under 11.a.Jd artlcl . Lew is v. S tnl
 valldlty of prior Jaw1 1                               (1905)     r.R . 149. 6 . ' , W . 102 .
                                                           l!'h n vldence showed violation o(           r-
                                                        non•ii Ann.P • . r ·peal a ar s. UJll , 1001 , re-
 1.   va11dlty of prior law•                            garding UJ'11u·w(u1 su stl utl on of lns tr11-
    Vernon's Ann .P.C. url• 1000 (repealed) .           tnonls and fnlll lntorpr :tatlon or wrltt n
                                                        lnstrumen~. ta.ta hall rlgbl to I el oH 11 9
 p,-oscTlblng m.l.'Jte¥>resentatlon "'Inducing''
  lr;nature. or nasenl to In. lrument at(ectlng         for wl'ilah ' woul pros ut .             ton v.
 property, wu not un const! utlonally lnde!i-           State c1u6n 171 cr.R. 201, MG 5 ,"1J .2a 323 .
 n.l~e. notwl'lhsta.ndlng use ot qu ted wor_d.
                                                        3.    Evidence
 McLa.rty v. SI.Alo (1967)      16~   Cr.R. 64. 302.
 s .W .2d 420.                                               rnpl'o11ecul\on (or ml r pres n tlng 11.
                                                        wrl lten Instrument n.!t cling r>rop rl>'• evJ-
 2.   In gene rat                                       denee of several extrnnnou off ni'I      of de -
    TJ{e m ere tac t ~hat a ·deed ab11oly~e on l tll    rend.o.nl WIUI ndmlti.s lble on IJ>Su of m tlve
  face mo.y hav been Int nd           B.ll a. mort.·    a n lment to commll otc r1< e ch rg d .
  ga~ ty"ould not pr-eclllde n pros.e cul1on \JD"'      Em11ter ,., Sta: e (1958) j 5 Or.R. 422, 30
                                                        S. V.2d    3~,
  der Vernon's Ann,F.C, art. 1000 (repealed r
  nor would lhe tact bM I\ dee\1 lo o. h1>me -               E\'ldence llU!l\n.tned con I Ion of !al e In·
  stead ab11ol\ll In torm may be shown by
  ;parol ro be Intended n.s secu1'lty C6r · IOJUl,
                                                         le11J1reto.Uon  or"'Tl ett lnet.ruft'lent .  to11
                                                         v. St.a.to !1061) 1.'11 Cr.R. 201, 848 S.W.2d
  conveying no Utle. change tl\'e ract Chat the          323.


  § 32.47.              Fraudulent Destruction, Bemoval, or Concealment of
                           Wrltin~

     (a) A person commits an offense if, with intent to defraud or
  harm anothel', he destr ys, l!emo~es, oonceals, altet\S, substitutes, or
  otherwise impairs the verity, Je-gib11ity, or avai1ability of a writing,
  oth~r than a governmental record.
     (b) F<>r purllose;s of this se~tion, "mitingt' includes:
          (1) pl'inting or any ot}fer method of r.ecording information;
          (2) money, coins, tokens, stamps, seals,, credit cards, badgea,
       trademarks;
                                                   672
                  APPENDIXF

[House Comm. On Criminal Jurisprudence, Bill Analysis,
       Tex. H.B. 1185, 75th Leg., R.S. (1997)]
                                        BILL ANALYSIS


CRIMINAL JURISPRUDENCE
C.S.H.B. 1185
By: Hightower
3-3-97
Committee Report (Substituted)


BACKGROUND

During the last two years, individuals and organizations have begun to take action based on their
refusal to recognize the authority and sovereignty of the government of the State of Texas.
These individuals have filed fraudulent judgment liens issued by so-called "common law courts"
and fraudulent documents purporting to create liens or claims on personal and real property with
the Secretary of State and many county and district clerks throughout the state. Many of the
filings have been against the State of Texas and public officers and employees, as well as private
individuals. At a minimum, the fraudulent filings have clogged the channels of commerce, an
intended and espoused consequence advocated by so-called anti-government groups. Often
these filings have amounted to harassment and intimidation of both public officials and ordinary
citizens.

PURPOSE

CSHB 1185, if enacted, would provide civil remedies for those against whom such fraudulent
filings have been made. In addition, it would provide for criminal sanctions to be levied against
those who seek to file such fraudulent documents. The bill would amend the Penal Code by
making it an offense to file a fraudulent court document or record, to exercise a function of a
public office that has no lawful existence, to cause or induce a public servant to record a
fraudulent court document, to deliver or cause to be delivered a document that simulates legal
process, and to refuse to execute a release of a fraudulent instrument purporting to create a lien
or claim. Additionally, the bill would make it a violation of the organized crime provisions of the
Penal Code to exercise a function of a public office that has no lawful existence. The bill would
create an expedited judicial process that permits someone aggrieved by a fraudulent filing to
obtain a court order declaring the filing to be fraudulent. The bill would also create a private
cause of action against a person who files fraudulent judgment liens or fraudulent documents
purporting to create a lien or claim against real or personal property in favor of a person aggrieved
by the filing or an attorney representing the state, county, or municipality.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking
authority to a state officer, department, agency or institution.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Sections 32.21 (e) and (t), Penal Code, by deleting "37.0l(l)(C)" and
adding "37.01(2)(C)" in subsections (e) and (t). SECTION 5 of this bill amends 37.01, by adding
a new subdivision. This change is necessary in order to properly cite the subdivision of 37.01
dealing with governmental records.

SECTION 2. Amends Section 32.46 of the Penal Code, by creating an offense for causing or
inducing a public servant to record a fraudulent court document and expands the scope of the
section to include as a penal offense causing or inducing a public servant to file or record any
judicial process of a legal court, judicial entity or judicial officer created under the laws of this
state or of the United States. An offense under the amendment is a state jail felony. The




AEZ C.S.H.B . 1185 75(R)
definition of "deception" in this section has the meaning assigned by Section 31.01 of the Penal
Code.

SECTION 3. Chapter 32, Penal Code, which governs the offense of fraud, is amended by adding
Section 32.48, which expands the offense of "fraud" to include "simulating legal process." The
proposed section provides that a person commits an offense if the person recklessly causes to be
delivered to another any document which simulates a summons, complaint, judgment, or other
court process. The intent of the document must include: inducing payment of a claim from
another person or causing another to submit to the putative authority of the document or causing
another to take any action or refrain from taking any action in response to the claim. The fact
that the "simulating document" contains a statement that it is not legal process or that it
purports to have been issued or authorized by a person who had no lawful authority to issue it is
not a defense to the offense. Ifit is proven that the simulating document is filed with, presented
to, or delivered to a clerk or any employee of a clerk of a court created by or established under the
constitution or laws of this state or of the United States, there shall be a rebuttable presumption
that the simulating document is filed with the intent of violating this section. The first violation
of this section is a Class A misdemeanor; a subsequent violation is a state jail felony.

SECTION 4. Amends Chapter 32, Penal Code, by adding Section 32.49. Section 32.49 makes it
an offense if a person, with intent to defraud or harm another person, is the owner, holder, or
beneficiary of a purported lien or claim asserted against real or personal property that is
fraudulent, as defined by Section 51.90l(c), Government Code and the owner of the lien refuses
to execute a release within 21 days after receiving actual notice or written notice sent by either
certified mail, return receipt requested, or by telephonic document transfer to the recipient's
current telecopier requesting the execution of a release of the fraudulent lien or claim upon
request of the obligor, debtor, or any person who owns the real or personal property or an interest
in the real or personal property described in the document or instrument. Subsection (b) is
added to provide presumption of intent to defraud or harm another if the person refused to
execute a release of lien within 21 days after receipt of actual notice or written notice as provided.
An offense under this section is a Class A misdemeanor.

SECTION 5. Amends 37.01, Penal Code, which governs perjury and other falsification of
governmental records or statements. Subdivision (1) is added which defines "court record".
Subsequent subdivisions are renumbered accordingly. Under the amendment, a "court record"
for purposes of Chapter 37 of the Penal Code is a decree, judgment, order, subpoena, minutes, or
warrant. "Court record" also includes other documents issued by: a court of this state; another
state; the United States; a foreign country recognized by an act of Congress or a treaty or other
international convention to which the United States is a party; an Indian tribe recognized by the
United States; or any other jurisdiction, territory, or protectorate entitled to the full faith and
credit in this state under the United States Constitution. The definition of "governmental
record" is expanded to include letter of patent. By adding a definition of "court record" to
Section 37.01 of this section, and in conjunction with SECTION 6, the filing of fraudulent court
records is an offense under Section 37.10 of the Penal Code, which governs tampering with a
governmental record.

SECTION 6. Amends Section 37.10, Penal Code, which governs the offense of tampering with a
governmental record. Subsection (d) is amended to include "letter of patent" to the list of
governmental records that tampering with constitutes an offense. Subsection (h) is added and
provides that an offense under this section also constitutes an offense under Section 32.48 or
Section 37.13 and that a person may be prosecuted under any one of these sections.

SECTION 7. Amends Section 37.11, Penal Code, by adding Subdivision (2) to Subsection (a)
and by amending Subsection (b). Currently, Section 37.11 of the code makes it an offense to
impersonate a public servant with the intent to induce another to submit to his pretended official
authority or to rely on his pretended official acts. The proposed addition of Subdivision (a)(2)
would expand the offense of impersonating a public servant to include public officers. The
expansion of the offense includes exercising by a person of any function of a public officer or




AEZ C.S.H.B. 1185 75(R)                           2
public employee, including judges and courts, if that person does so knowingly and the office of
position through which he purports to exercise a governmental function has no lawful existence
under the Constitution or laws of the State ofTexas or of the United States.

Subsection (b) currently provides that an offense under Section 37.11, Penal Code, is a Class A
misdemeanor unless the person impersonated a peace officer, in which event the offense is a
third degree felony. The proposed amendment to Subsection (b) makes an offense under this
section a felony of the third degree in all instances.

SECTION 8. Amends Chapter 37, Penal Code, by adding Section 37.13. Section 37.13 makes it
an offense if a person makes, presents, or uses any document or other record with the knowledge
that the document or other record is not a record of a court created under or established by the
constitution or laws of this state or of the United States and the person intends that the record be
given the same legal effect as a lawfully constituted court. An offense under this section is a Class
A misdemeanor unless convicted under this section on two or more occasions then it is a felony
of the third degree. An offense under this section also constitutes an offense under Sections
32.48 or 37.10 which allows an election of prosecutors to choose for prosecution of strongest
cases.

SECTION 9. Amends Section 71.02(a), Penal Code, by amending Subdivisions (9) and (10) and
by adding Subdivision (11). Chapter 71 of the Penal Code governs organized crime, making it an
offense to engage in "organized criminal activity," as defined by the chapter. Section 71.02(a) of
the Penal Code currently defines what constitutes engaging in organized criminal activity. The
proposed amendment would expand the definition to include any offense under Sections 37.ll(a)
of the Penal Code, which makes it an offense to impersonate a public servant with intent to
induce another to submit to his pretended official authority or to rely on his pretended official
acts. Thus, a combination of three or more persons impersonating a public servant in violation of
Section 37.11, Penal Code, constitutes "organized criminal activity" in violation of Section 71.02
of the code.

SECTION 10. Amends chapter 37 of the Penal Code by adding Section 37.101, which makes it
an offense to file a fraudulent financing statement. During the 74th Legislature, Section 9.412 of
the Business and Commerce Code was amended by adding Subsection (c), which makes it a
criminal offense to file a false financing statement that is forged, that contains a material
statement that is false, or that is groundless; the provision also created a private cause of action
by behalf of anyone aggrieved by the fraudulent filing. This addition to the Penal Code merely
codifies in that code that part of Section 9.412 that creates a criminal offense. The offense for
filing a fraudulent financing statement that is forged is a third degree felony, unless the defendant
has been convicted two or more occasions, in which event the offense is a second degree felony.
The offense for filing a fraudulent financing statement that contains a material statement that is
false or that is groundless is a Class A misdemeanor, unless the document is filed with the intent
to defraud or harm another, in which event the offense is state jail felony.

SECTION 11. Amends Chapter 1, Code of Criminal Procedure, by adding Article 1.052, which
governs signed pleadings by a defendant. Subsection (a) provides that every pleading, motion, or
other paper filed by an accused person represented by an attorney must be signed by at least one
attorney of record in the attorney's individual name and stating the attorney's address.
Subsection (a) further provides that, if an accused person is not represented by an attorney, that
accused person must sign any pleading, motion, or other paper filed for or on behalf of the
accused person and state the accused person's address.

Subsection (b) provides that the signatures of attorneys or of accused persons and defendants
constitute a certificate by the signatories that they have read the pleadings and that, to the best of
their knowledge, the instrument is not groundless or brought in bad faith or for harassment on
unnecessary delay.




AEZ C.S.H.B. 1185 75(R)                           3
Subsection (c) provides that ifthe pleading is not signed, the court shall strike it from the record,
unless it is promptly signed after the omission is brought to the attention of the person filing the
pleading.

Subsection (d) provides that attorneys, accused persons, or defendants who file fictitious
pleadings or make statements in pleadings that they know to be groundless or false for purposes
of delay or harassment shall be held guilty'of contempt.

Subsection (e) provides that if a pleading, motion, or other document is signed in violation of this
article, the court shall impose appropriate sanctions on motion or on its own initiative, after
notice and hearing. The sanctions may include an order to pay to the other party or parties to the
prosecution or to the general revenue fund of the county in which the document was filed the
amount of reasonable expenses incurred because of the filing, including reasonable attorney's
fees.

Subsection (f) provides that courts shall presume that pleadings, motions, and other documents
filed are filed in good faith; no sanctions may be imposed except for good cause state in the
sanction order.

Subsection (g) provides that a plea of "not guilty" or "no contest" or "nolo contendere" does
not constitute a violation of this article.

Subsection (h) defines "groundless" for purposes of this article to mean without basis in law or
fact and not warranted by a good faith argument for the extension, modification, or reversal of
existing law.

SECTION 12. Amends Chapter 13, Code of Criminal Procedure, by adding Article 13.26,
creating an offense under Sections 32.48, 32.46, 32.49, and 37.13 of the Penal Code, which makes
it an offense to simulate legal process and may be prosecuted either in the county from which the
material document was sent or in the county in which it was delivered.

SECTION 13. Amends Section 51.605(c), Government Code, to include a requirement that
clerks, district clerks, county clerks, and district and county clerks, who already are required to
complete 20 hours of continuing education courses in the performance of their duties, must
include at least one hour of continuing education regarding fraudulent court documents and
fraudulent document filings.

SECTION 14. Amends Chapter 51, Government Code, by adding Subchapter J. Currently, the
clerks of courts are required to accept for filing whatever documents are presented to them; they
have no discretion to reject a filing. Section 51.90l(a) provides that if the Clerk of the Supreme
Court, Clerk of the Court of Criminal Appeals, a Clerk of a Court of Appeals, a district clerk, a
county clerk, district and county clerk or a municipal clerk has a reasonable basis to believe in
good faith that a document or instrument previously filed or submitted for filing or for filing and
recordation is fraudulent, as defined in the section, the clerk shall provide written notice of the
filing or submitted filing to the stated or last known address of the person against whom a lien is
filed. If the suspected document is a judgment lien, the person against whom the lien is filed shall
be notified. If the suspected document is a lien or claim on real or personal property, or an
interest therein the person who is the obligor or debtor or who owns the real or personal property
or any interest in real or personal property or interest therein that is the subject of a purported
lien or claim shall be notified in writing by the clerk.

Subsection 51.90l(b) states that the notice required by subsection (a) must be provided within
two business days after the date that the document or instrument is submitted for filing or
recording. If the document or instrument has been previously filed or recorded, notice must be
given not later than the second business day after the date that the clerk becomes aware that the
document or instrument may be fraudulent.




AEZ C.S.H.B. 1185 75(R)                           4
Subsection (c) of Section 51.901 defines a fraudulent judgment lien as one judgment that is
issued by a purported court or judicial officer that is not created or established by the constitution
or laws of this state or of the United States. The subsection further defines a fraudulent lien or
claim as one that: (1) is asserted against real or personal property or an interest in real or personal
property; (2) is not provided for by specific state or federal statute or constitutional provision;
(3) is not created by implied or express consent or agreement of the obligor, debtor, or the owner
of the real or personal property or an interest in the real or personal property or by the implied or
express agreement consent, fiduciary, or other representative of that person; (4) is not an
equitable, constructive, or other lien imposed by a lawful court with jurisdiction.

Section 51.902 is added which permits the filing of an action on fraudulent judgment liens and
sets forth model forms that may be used, both by the plaintiff seeking an order and by a judge
issuing an order. Subsection (a) sets forth the suggested form of the verified motion to be filed
with the district clerk by a person against whom a purported judgment was rendered. Subsection
(b) is added which provides an affidavit to be signed and notarized, swearing to the truth of the
allegations. Subsection (c) permits a district judge having jurisdiction over real property matters
in the county in which the subject document was filed to review solely the documents in
contention in an ex parte proceeding without notice to any party and without hearing evidence.
The court's ruling is unappealable ifit is substantially similar to the form suggested in Subsection
(g). Subsection (d) prohibits a district clerk from collecting a fee for filing the motion.
Subsection (e) provides that the ruling must be filed and indexed in the same class of records in
which the subject document was originally indexed. Subsection (t) prohibits a county clerk from
collecting a fee for filing the judge's finding of fact and conclusion of law under this section.
Subsection (g) sets forth a suggested model form of the findings of fact and conclusion of law to
be issued by the judge.

Section 51.903 permits a person who is the purported debtor or obligor or who owns real or
personal property or an interest in real or personal property and who has reason to believe that
the document purporting to create a non-judicial lien or a claim against the real or personal
property is fraudulent to file a motion seeking judicial review of the document in a judicial review
process substantially similar to that set out in Section 51.902. Like Section 51.902, Section 51.903
sets forth suggested model forms for the motion to be filed by a plaintiff and the ruling to be
issued by a judge having proper jurisdiction, verified and reviewing only the documents in
contention and without hearing evidence. Any appeal under this section shall be expedited by the
appellate courts.

Section 51. 904 provides that a clerk shall post a sign, in letters at least one inch in height, in or
near the clerk's office stating that it is a crime to knowingly and intentionally file a fraudulent
court record or instrument with the clerk.

Section 51.905(a) authorizes a person to file certified copies a judicial finding of fact and
conclusion of law authorized by this section with the secretary of state to be filed in the records of
the same class. Subsection (b) authorizes the secretary of state to charge a filing fee of $15 for
filing such a document.

SECTION 15. Amends Section 12.013, Property Code, which currently provides that a judgment
or an abstract of judgment may be recorded if the judgment is attested under the signature and
seal of the clerk of the court that rendered the judgment. Under the proposed amendment, the
phrase "judgment of a court of this state" is qualified by the phrase "expressly created or
established under the Constitution or the laws of this State or of the United States", courts of a
foreign country recognized by congressional act, treaty, or international agreement of the United
States, or other jurisdiction entitled to the full faith and credit of the United States, thereby
ensuring that only judgments and abstracts of judgments of authentic courts may be filed.

SECTION 16. Amends Subtitle A, Title 2, Civil Practice and Remedies Code, by adding Chapter
11, which permits the filing of an injunction and creates a private cause of action against a person
who files a fraudulent court document or fraudulent lien or claim. An action under this chapter




AEZ C.S.H.8. 1185 75(R)                            5
may be brought by an attorney representing the state or municipality a person who is the debtor
or obligor or who owns the real or personal property or the interest in real or personal property
that is encumbered by the fraudulent lien or claim. Liability attaches to individuals who file liens
knowing that they are fraudulent with intent to give the same effect as a recognized valid lien with
intent to cause physical injury, financial injury and injury or mental anguish or emotional distress.
An action under this section may be brought in any district court in the county where the
recorded document was filed or is where the real property is located.

A filing fee for an action brought is $15 to be paid to the Clerk of the Court. No other additional
fees or costs may be charged except for service of notice for which a $20 fee for personal service
shall be levied and the cost of postage if by registered or certified mail. If unable to pay the fee,
the plaintiff can file a pauper's oath under TRCP. If the plaintiff prevails and the fees imposed
are less than similar filings, the court may order the defendant to pay the difference. In addition,
the chapter provides for criminal remedies. Liability is limited to the greater of $10,000 or the
actual damages caused by the violation, in addition to court costs and reasonable attorney's fees.
Additionally, a court may impose punitive damages.

SECTION 17. Repeals Section 9.412(c) of the Business and Commerce Code.

SECTION 18. Provides that an action for an order brought under Subchapter J, Chapter 51,
Government Code, may be brought without regard to whether the document was filed before,
on, or after the effective date of this Act.

SECTION 19. Requires clerks to complete one hour of continuing education regarding
fraudulent court documents before September 1, 1998.

SECTION 20. Provides that the change in law made by Section 16 of this Act applies only to a
cause of action that accrues on or after the effective date of this Act.

SECTION 21. Provides that the effective date with regard to criminal opposes applies may after
the effective date of this Act. By offense or element of offense accruing before the effective date
of this Act is covered by former law.

SECTION 22. EMERGENCY CLAUSE.


COMPARISON OF ORIGINAL TO SUBSTITUTE

Except for the following sections in which substantive differences occur, the substitute 1s
substantively identical to the original:

(1) SECTION 1 amends Penal Code, Section 32.21 (e) and (f), by deleting "37.0l(l)(C)" and
replacing with "37.01(2)(C)". This is a new provision and all subsequent sections are
renumbered throughout the bill.

(2) SECTION 3 amends Chapter 32, Penal Code by adding Section 32.48 and adds language in
subsection (a)"causes to be delivered" in the explanation of simulating legal process.
Subsection (a)(l) is changed by adding "from another person".

(3) SECTION 4 is changed by amending the title of the section to "Refusal to Execute Release of
Fraudulent Lien or Claim". Section 4 also includes new language creating a process whereby a
person against whom a fraudulent lien or claim has been filed and ruled invalid may request that
the lien holder execute a release of said lien. Should the lien holder fail to execute a release of
the purported lien or claim within twenty-one days after receipt of actual or written notice, intent
to harm or defraud another is presumed. An offense under this newly created section of the
Penal Code is a Class A misdemeanor.

(4) SECTION 5 includes the tenn "minutes" in the definition of "court record".




AEZ C.S.H.B. I J85 7S(R)                          6
(5) SECTION 7 amends Section 37.11, Penal Code and the language "knowingly purports to
exercise" is added in subsection (a)(2) .

(6) SECTION 8 adds section 37.13 to the Penal Code. The title of this section has been changed
from "FRAUDULENT COURT RECORDS" to "RECORD OF A FRAUDULENT COURT'' to
better reflect the changes therein. Additionally, the phrase "genuine court record" has been
deleted and the phrase "record of a court created under or established by the constitution or laws
of this state or of the United States" has been added. The penalty for violation of this section has
also increased from a Class B to a Class A misdemeanor and a third degree felony for subsequent
offenses.

(7) SECTION 14 includes new language in Section 51.901, Subsection (a), by adding "has a
reasonable basis to believe in good faith" to the provision regarding the clerks' suspicion of
fraudulent documents or instruments.

Subsection (a)(2) is changed by adding "personal" property along with real property which was
contained in the original version.

Subsection (b)(2) is changed by deleting "is" and adding "may be" to clarify language.

Subsection (2)(B) is changed by adding "or agreement" to provision regarding whether a
document or instrument purports to create a lien or claim. Also, Subsection (2)(B) is amended
by deleting "by the originally signed and attested or acknowledged signature".

Affidavit forms are also added to Section 51 .902 and Section 51.903 which provides for a sworn
statement.

Section 51.903, Subsection (c) is amended by adding "An appellate court shall expedite review
of a court's finding under this section."

Section 51.902 is changed by adding paragraph IV as follows :
                                                1Y:_
Movant further attests that the assertions contained herein are true and correct.

Section 51.902 is also changed by adding paragraphs IV and V as follows:
                                                 IV.
Movant attests that assertions herein are true and correct.
                                                 V.
Movant does not req uest the court to make n findin g as to any under.lyi ng c laim o f the pa rties
i11vo lved and ack now'led es that this motion does not seek to invalidate a le itim utc lien.
Moyant further ac knowledges that rn ovant may be ubject to sanctions, as provided by Chapter
J.Q, ivil Practice and Remedies ode, if this motion is determined to be frivolous.

(8) SECTION 19 is changed by adding a requirement for clerks to complete one hour of
continuing education regarding fraudulent court documents before September 1, 1998.




AEZ C.S.H .B. 1185 75(R)                         7
