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



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

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

Appellee            THE STATE OF TEXAS

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


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

                    TRIAL COLINSEL
                            TABLE OF CONTENTS


IDE,NTITY OF PARTIES & COUNSEL                                                    I


INDEX OF AUTHORITIES                                                         iv-vii

STATEMENT OF TFIE CASE                                                            I

SUMMARY OF THE STATE'S ARGUMENTS                                                 2


ARGI.II\4ENT                                                                      J


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


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


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


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


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


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


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




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

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


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

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


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

PRAYER                                                                             .... 15


CERTIFICATE OF     COMPLIANCE                                                   ....... 16

CERTIFICATE OF SERVICE,                                                                 16




                                                                                          lll
                          INDEX OF A          ORITIES



Statutes, Codes, and Rules

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

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

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


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

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


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


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

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




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


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

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



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


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

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

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


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


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

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

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


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


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


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


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


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


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


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


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


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


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


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




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

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


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


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

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

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


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

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


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

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

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


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

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


Cases

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


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


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




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

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

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




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


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

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




                                                                                vll
                             IN THE COURT OF
                            CRIMINAL APPEALS
                                 OF TEXAS

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




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



TO TI{E COURT OF CRIMINAL APPEALS:

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

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

Second District Court of Appeals be affirmed.


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

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

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

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



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


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

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

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

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

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

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

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

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

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

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

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

                 SIIMMAR YO F'THE              ATE rs ARG IIME,NTSI

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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

deceiving the clerks into filing the fraudulent lien.

                                     ARGUMENT

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

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

       Individuals involved in different businesses or industries can be criminally

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




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

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

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

liens and inadequate to deter that behavior.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the State's brief and oral argument.

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

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

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

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

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

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




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

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

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

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

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


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


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

agreement underlying the fraudulent liens and these actions are criminalized under

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

Code ç 32.46.

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

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

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

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

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

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

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

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

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

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

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

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

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

         The Texas Construction Association argues there are reasonable ways to

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

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

civil   causes of action, some include:



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




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

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



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

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


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

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

      The brief for amícus curiae argues that Appellants' actions         should

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


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

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




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

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

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

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

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

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

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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


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

        The Texas Construction Association argues that the lien can be bonded

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

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

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

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

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

Ann. $ 53.173-53.174 (West 2014).

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

52; State' s Exhibit 3).

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

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

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

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

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

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

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

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



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

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

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

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

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


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


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

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

by deception. See id.

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

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

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

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

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

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

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

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

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

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


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

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

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

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


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


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

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




                                                                                    l4
                                       PRAYER

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

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

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

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

judgment of the Court of Appeals

                                                Respectfully submitted,


                                                PAUL JOHNSON
                                                Criminal District Attorney
                                                Denton County, Texas

                                                CATHERINE LUFT
                                                Assistant Criminal District Attorney
                                                Chief, Appe     Division




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




                                                                                       15
                       CERTIFICATE OF COMPLIANCE

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

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

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

was used to prepare the document.




                                                   TO



                          CERTIFICA          OF'SERVICE

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

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

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

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

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

Attomey, Lisa C. McMinn, information@spa.



                                                               District Attorney




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