                                                                                       PD-1596-14
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
August 18, 2015                                                      Transmitted 8/17/2015 3:14:04 PM
                                                                       Accepted 8/18/2015 9:45:57 AM
                                                                                       ABEL ACOSTA
                         NOS. PD-1595-14 and PD-1596-14                                        CLERK



                                 IN THE
                   COURT OF CRIMINAL APPEALS OF TEXAS


                   ROGER LIVERMAN and AARON LIVERMAN,
                                    Appellants-Respondents,

                                          v.

                              THE STATE OF TEXAS,
                                         Appellee-Petitioner.


                     On State’s Petition for Discretionary Review

                      Court of Appeals of Texas, Second District
                              Case No. 02-13-00176-CR

                        362nd District Court, Denton County
                    Cause No. F-2012-0136-D and F-2012-0137-D


                  AMENDED BRIEF OF AMICUS CURIAE OF THE
                    TEXAS CONSTRUCTION ASSOCIATION


                                               John S. Polzer
                                               State Bar No. 24042609
                                               jpolzer@canteyhanger.com
                                               Christopher A. Brown
                                               State Bar No. 24086265
                                               cbrown@canteyhanger.com
                                               CANTEY HANGER LLP
                                               600 West 6th Street. Suite 300
                                               Fort Worth, Texas 76102
                                               Telephone: (817) 877-2800
                                               Facsimile: (817) 817-2807
                 IDENTITY OF PARTIES AND COUNSEL


Appellants/Respondents:   Roger Liverman and Aaron Liverman

Appellate Counsel:        Matthew J. Kita
                          P.O. Box 5119
                          Dallas, Texas 75208

Trial Counsel:            Lea Ann Breading
                          121 West Hickory Street, Suite
                          133 Denton, Texas 76209

                          Jerry Cobb
                          P.O. Box 1399
                          Denton, Texas 76202


Appellee/Petitioner:      The State of Texas

Appellate Counsel:        Lara Tomlin
                          Denton County District Attorney's
                          Office 1450 East McKinney Avenue
                          Denton, Texas 76209

Trial Counsel:            Rick Daniel
                          Lindsey Sheguit
                          Denton County District Attorney's
                          Office 1450 East McKinney Avenue
                          Denton, Texas 76209




                                    ii
      Amicus states that no party or parties’ counsel authored any part of this brief

or paid any costs associated with its preparation, and amicus curiae, its members,

or its counsel, did not contribute money that was intended to fund preparing or

submitting the brief.



                                               Respectfully submitted,


                                               /s/ John S. Polzer
                                               John S. Polzer




                                         iii
                                          TABLE OF CONTENTS


Identity of Interested Parties .................................................................................... ii

Table of Contents .................................................................................................... iv

Table of Authorities .................................................................................................vi

Interest of Amicus Curiae ...................................................................................... viii

Issue Presented ..........................................................................................................ix

Statement of Facts ...................................................................................................... 1

Summary of The Argument ....................................................................................... 2

Argument.................................................................................................................... 3

         A.        The Purpose of Filing a Lien Affidavit is to Secure
                   Payment, Not to be an Avenue for Punishment. ................................... 3

         B.        County Clerks Have No Discretion When Given
                   Lien Affidavit to File............................................................................. 5

         C.        There Are Reasonable Ways to Remove a Lien
                   Without Bringing Criminal Charges ..................................................... 6

                   i. There is a Sufficient Civil Penalty for Filing an
                      Invalid Lien Under Texas Civil Practice and
                      Remedies Code 12.002..................................................................... 7

                   ii. An Invalid or Unenforceable Lien Can Be
                       Removed Under Texas Property Code 53.160 ................................ 8

                   iii. A Lien Can Be Bonded Around Under Texas
                        Property Code Section 53.171 ......................................................... 9

                   iv. A Lien Can Be Discharged Under Property
                       Code 53.157 ................................................................................... 10

                   v. There Are Limitations on Liens That Prevent
                      Claimant From Improper Payment ................................................ 11


                                                             iv
                   vi. A Lien Filed with An Error Can Be Amended .............................. 11

Conclusion ............................................................................................................... 12

Prayer ...................................................................................................................... 12

Certificate of Compliance ....................................................................................... 13

Certificate of Service .............................................................................................. 14




                                                               v
                                      TABLE OF AUTHORITIES

Cases                                                                                                            Pages
Big Three Welding Equip. Co. v. Crutcher, Rolfs, Cummings, Inc.,
      229 S.W.2d 600 (Tex. 1950) ........................................................................... 4
CVN Grp. v. Delgado, 95 S.W.3d 234 (Tex. 2002) ................................................... 3
First Nat’l. Bank v. WhirlPool Corp., 517 S.W.2d 262 (Tex. 1974) ........................ 4
Liverman v. State, 448 S.W.3d 155 (Tex. App.—Fort Worth 2014,
      pet. granted) ................................................................................................. 1, 2
Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221
     (Tex. App.—Houston [14th Dist.] 2013, pet. denied) ................................... 11
Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773
     S.W.2d 687 (Tex. App.—San Antonio 1989, no writ) .................................... 4
Ready Cable, Inc. v. RJP S. Comfort Co., 295 S.W.3d 763 (Tex.
     App.—Austin 2009, no pet.) ........................................................................... 5
Rules
TEX. CIVIL PRAC. & REM. CODE 12.002 ................................................................. 7, 8
TEX. PENAL CODE § 32.46(a)(1) ...................................................... viii, 1, 2, 3, 5, 12
TEX. PENAL CODE § 37.01.......................................................................................... 7
TEX. PROP. CODE §§ 53.021-.023............................................................................... 3
TEX. PROP. CODE § 53.024 ....................................................................................... 11
TEX. PROP. CODE § 53.052 ...........................................................................5, 6, 7, 10
TEX. PROP. CODE § 53.152 ....................................................................................... 10
TEX. PROP. CODE § 53.157 ....................................................................................... 10
TEX. PROP. CODE § 53.158 ....................................................................................... 10
TEX. PROP. CODE § 53.160 ...............................................................................8, 9, 10
TEX. PROP. CODE § 53.161 ....................................................................................... 10
TEX. PROP. CODE § 53.171 ...................................................................................9, 10
TEX. PROP. CODE § 53.172 ......................................................................................... 9
TEX. PROP. CODE § 53.173 ....................................................................................... 10
TEX. PROP. CODE § 53.174 ....................................................................................... 10


                                                           vi
TEX. PROP. CODE § 53.175 ....................................................................................... 10
TEX. PROP. CODE § 53.208 ....................................................................................... 10




                                                       vii
                        INTEREST OF AMICUS CURIAE

       The    Texas    Construction    Association    represents    the   interests   of

subcontractors and suppliers. The Texas Construction Association has an interest

in not only legislation that affects its industry, but also the application of laws that

affect its industry.




                                          viii
                             ISSUE PRESENTED

      Should the filing of an invalid lien affidavit be a crime under Texas Penal

Code Section 32.46(a)(1)?




                                       ix
                                  STATEMENT OF FACTS

        This case arises from the filing of a lien affidavit by Roger Liverman with

the Denton County Clerk. Liverman v. State, 448 S.W.3d 155 (Tex. App.—Fort

Worth 2014, pet. granted).

        On July 22, 2008, Roger Liverman (“Liverman”) filed a mechanic’s lien

affidavit in the Denton County Clerk’s Office asserting he had performed $45,000

worth of “labor and/or materials” on a home owned by Katheryn Payne (“Payne”).

Id. at 156. The County Clerk filed and recorded the affidavit. See id. at 157.

        Liverman assisted Payne in the remodel of a residential property including:

installation of the HVAC system, tape-and-bed work, painting the kitchen and

bathroom, installing French doors and light fixtures, putting a roof on the chicken

coop, and installing appliances.1 Payne admitted that she did not pay Liverman for

any of the above-referenced work.2 Payne was ultimately successful in removing

the lien through a civil lawsuit.3 However, Payne also filed a complaint with the

Denton County District Attorney, and the State indicted Liverman for “securing

the execution of a document by deception under the Texas Penal Code Section

32.46(a)(1).”4 That section states that “[a] person commits an offense if, with intent

to defraud or harm any person, he, by deception: (1) causes another to sign or

1
  3 RR 49:18-19; 3 RR 51:13-16; 3 RR 54:23-55:3; 3 RR 55:8-16; 3 RR 57:16-22; 3 RR 59:19-60:2; 3 RR 69:25-
70:24.
2
  3 RR 71:19-22.
3
  3 RR 96:13-17; 203: 16-20.
4
  3 RR 47:6-8; CR 5-7; 3 RR 200:1-16.


                                                    1
execute any document affecting property or service of the pecuniary interest of any

person.” TEX. PENAL CODE § 32.46(a)(1)(emphasis added).

          The document that was alleged to have been secured by deception is the lien

affidavit Liverman filed on July 22, 2008. Liverman v. State, 448 S.W.3d at 157.

The trial court found him guilty of securing execution of a document by deception,

marking the first time this Penal Code section had been used to prosecute an

affidavit lien filer. Id. Liverman was sentenced to ten years in prison (suspended

for ten years), fined $5,000, and ordered to pay $17,500 in restitution as a

condition of his community supervision.5 On appeal, the Fort Worth Court of

Appeals acquitted Liverman on October 9, 2014, finding the evidence insufficient

to support a conviction. Id. at 159. The court reasoned that the court clerk filing

and recording the mechanic’s lien affidavit was not the signing or executing of a

document as contemplated by subsection 32.46(a)(1). Id.

                            SUMMARY OF THE ARGUMENT

          The Court of Appeals correctly concluded that the evidence at trial was

legally insufficient to convict Liverman of “securing the execution of a document

by deception” under section 32.46(a)(1) of the Texas Penal Code because the State

failed to offer any evidence that the Denton County Clerk “signed or executed” a

document affecting property. In addition, a criminal penalty under section


5
    CR 65-68.


                                           2
32.46(a)(1) for filing a lien affidavit if the property owner ultimately prevails on a

dispute would be devastating for the construction industry because there are

existing statutory schemes to reasonably address an invalid lien, which do not

involve the threat of criminal penalty. The Legislature provided for a punishment

scheme in various statutes; therefore, such an expansive reading of section

32.46(a)(1) is both unreasonable and excessive.

                                   ARGUMENT

   A. The Purpose of Filing a Lien Affidavit is to Secure Payment, Not to be an
      Avenue for Punishment.

   The Texas Property Code sets forth how persons who provide labor or materials

for certain construction projects on real property must file a proper mechanic’s

lien. See TEX. PROP. CODE §§ 53.021-.023. A mechanic’s lien under the Texas

Property Code secures payment for: 1) the labor done or material furnished for the

construction or repair; 2) the specially fabricated material, or 3) the preparation of

a plan or plat by an architect, engineer, or surveyor. Id. at § 53.021(c). The

statutory lien under Chapter 53 of the Property Code reflects an attempt to create a

workable balance among various and often antagonistic interests, protecting not

only contractors and suppliers, but also lenders and property owners. CVN Grp. v.

Delgado, 95 S.W.3d 234, 247 (Tex. 2002).

      The purpose behind liens is clearly laid out by the Texas Supreme Court

when it stated:

                                          3
      The giving of liens to those who furnish materials and labor for works
      of improvement or construction, with the according of priorities to
      those liens, is based upon the just consideration that a person who by
      his labor or material expended on improvements made on the land of
      another, under contract, express or implied, shall be paid for.

Big Three Welding Equip. Co. v. Crutcher, Rolfs, Cummings, Inc., 229

S.W.2d 600, 603 (Tex. 1950).

      Mechanic’s and materialman’s lien statutes are to be liberally construed for

the purpose of protecting laborers and materialmen. First Nat’l. Bank v. WhirlPool

Corp., 517 S.W.2d 262, 269 (Tex. 1974). Generally, for purposes of perfecting the

lien, only substantial compliance is required in order to fulfill the statutory

requirements. Occidental Neb. Fed. Sav. Bank v. East End Glass Co., 773 S.W.2d

687, 688 (Tex. App.—San Antonio 1989, no writ).

      Based on the Property Code and case law, the purpose for filing a lien is to

secure payment. The rules put in place for filing liens are there to protect the

construction industry and to protect laborers and materialmen. An error in the lien

affidavit should not be used in order to criminally charge an industry participant

when the lien laws are in place to protect those seeking payment. For the

construction industry, filing of a lien is done in order to secure payment, it should

not be an avenue of punishment if the lien is ultimately removed or if the lien

affidavit is somehow invalid.




                                         4
       B. County Clerks Have No Discretion When Given Lien Affidavit to File

           County Clerks have no discretion when it comes to filing mechanic’s lien

affidavits in the county records and therefore a filer should not be punished under

Texas Penal Code section 32.46(a)(1) if an invalid lien affidavit is filed.

           Under the Texas Property Code, the county clerk shall record the affidavit in

records kept for that purpose and shall index and cross-index the affidavit in the

names of the claimant, the original contractor, and the owner. TEX. PROP. CODE

§ 53.052(c) (emphasis added). Failure of the county clerk to properly record or

index a filed affidavit does not invalidate the lien. Id. A clerk cannot refuse a lien

affidavit if there is no legitimate basis. See Ready Cable, Inc. v. RJP S. Comfort

Co., 295 S.W.3d 763 (Tex. App.—Austin 2009, no pet.)(emphasis added).

           Cynthia Mitchell, the Denton County Clerk testified in the trial court that if a

county clerk is unaware that a lien is blatantly false or fraudulent, the affidavit

would be recorded by the clerk if it met the recording requirements.6

           The required contents of the affidavit include: 1) a sworn statement of the

amount of the claim; 2) the name and last known address of the owner or reputed

owner; 3) a general statement of the kind of work done and materials furnished by

the claimant and, for a claimant other than an original contractor, a statement of

each month in which the work was done and materials furnished for which


6
    3 R.R. 20:6-8.


                                               5
payment is requested; 4) the name and last known address of the person by whom

the claimant was employed or to whom the claimant furnished the materials or

labor; 5) the name and last known address of the original contractor; 6) a

description, legally sufficient for identification, of the property sought to be

charged with the lien; 7) the claimant’s name, mailing address, and, if different,

physical address; and 8) for a claimant other than an original contractor, a

statement identifying the date each notice of the claim was sent to the owner and

the method by which the notice was sent.

      For example, a review of the affidavit by the county clerk will not alert the

clerk to an error in the amount stated in the affidavit. Because of this, an invalid

affidavit filed with the clerk will very likely be recorded because the clerk has no

discretion to determine whether an affidavit is invalid. As there is no discretion on

the part of the clerk, there are other ways to remedy an invalid affidavit, short of

criminal penalties, as shown below.

   C. There Are Reasonable Ways to Remove a Lien Without Bringing Criminal
      Charges

      In addition to the statutory requirements to be included within the lien itself,

a person claiming a lien must file an affidavit with the county clerk of the county

in which the property is located, not later than the 15th day of the fourth calendar

month after the day on which the indebtedness accrues. TEX. PROP. CODE

§53.052(a). If the lien arises from a residential construction project the affidavit

                                           6
must be filed not later that the 15th day of the third calendar month after the day on

which the indebtedness accrues. Id. at §53.052(b). If a lien affidavit contains an

error, there are numerous solutions to fix this problem.

      i.      There is a Sufficient Civil Penalty for Filing an Invalid Lien Under
              Texas Civil Practice and Remedies Code 12.002

      There is no need for a criminal penalty for filing an invalid lien, as there is

already a sufficient quasi-criminal penalty imposed under Texas Civil Practice and

Remedies Code 12.002. Section 12.002 essentially operates as a fine to the

wrongdoer, stating:

           (a) A person may not make, present, or use a document or other
               record with:
               (1) knowledge that the document or other record is a
                    fraudulent court record or a fraudulent lien or claim
                    against real or personal property or an interest in real or
                    personal property;
               (2) intent that the document or other record be given the
                    same legal effect as a court record or document of a
                    court created by or established under the constitution or
                    laws of this state or the United States or another entity
                    listed in Section 37.01, Penal Code, evidencing a valid
                    lien or claim against real or personal property or an
                    interest in real or personal property; and
               (3) intent to cause another person to suffer:
                      (A) physical injury;
                      (B) financial injury; or
                      (C) mental anguish or emotional distress.
                             A person who violates section 12.002(a) is liable
                      to each injured person for the greater of $10,000 or the
                      actual damages caused by the violation. TEX. CIV. PRAC.


                                           7
                   & REM. CODE §12.002(b)(1)(A-B). Additionally, for a
                   violation of 12.002, a person is liable for court costs,
                   reasonable attorney’s fees, and exemplary damages in an
                   amount determined by the court. Id. at 12.002(b)(2-4).

      This punishment is sufficient and an expansion of the Penal Code to cover a

violation that it has never before been construed to cover, is not warranted.


      ii.    An Invalid or Unenforceable Lien Can Be Removed Under Texas
             Property Code 53.160

      In a suit brought to foreclose a lien or to declare a claim or lien invalid or

unenforceable, a party objecting to the validity or enforceability of the claim or

lien may file a summary motion to remove the invalid or unenforceable lien. See

TEX. PROP. CODE 53.160.

      The Texas Property Code provides various potential objections to the

validity or enforceability of the claim, which include: 1) notice was not properly

furnished to the owner or original contractor; 2) the affidavit does not comply with

statutory requirements; 3) notice of filed affidavit was not furnished to the owner;

4) statutory deadlines not met; 5) all funds subject to the notice of the claim to the

owner and a notice regarding the retainage have been deposited into the registry of

the court and the owner has no additional liability to the claimant; 6) statutory

requirements not met for lien filed on homestead property; and 7) the claimant




                                          8
executed a valid and enforceable waiver or release of the claim or lien claimed in

the affidavit.7

         The importance of Texas Property Code 53.160 is twofold. One, it is

important to show that there are numerous reasons for a lien to be invalid or

unenforceable. Notably, the Texas Legislature drafted seven different grounds for

objecting to the validity of the enforceability of the lien. Two, it is important to

show that there is an avenue to remove an invalid or unenforceable lien short of a

criminal penalty.

         iii.     A Lien Can Be Bonded Around Under Texas Property Code Section
                  53.171

         If a lien is fixed or is attempted to be fixed by a recorded instrument any

person may file a bond to indemnify against the lien. See TEX. PROP. CODE

§ 53.171.

         Under section 53.171, a lien against an owner’s property is discharged after:

1) a bond that meets statutory requirements is filed8; 2) the notice of the bond is




7
  TEX. PROP. CODE § 53.160(b)(1-7).
8
  The bond requirements under TEX. PROP. CODE § 53.172 include that the bond: 1) describe the property on which
the liens are claimed; 2) refer to each lien claimed in a manner sufficient to identify it; 3) be in an amount that is
double the amount of the liens referred to in the bond unless the total amount claimed in the liens exceeds $40,000,
in which case the bond must be in an amount that is the greater of 1-1/2 times the amount of the lines or the sum of
$40,000 and the amount of the liens; 4) be payable to the parties claiming the liens; 5) be executed by: a) the party
filing the bond as principal; and b) a corporate surety authorized and admitted to do business under the law in this
state and licensed by this state to execute the bond as surety; and 6) be conditioned substantially that the principal
and sureties will pay to the named obliges or to their assignees the amount that the named obliges would have been
entitled to recover if their claims had been proved to be valid and enforceable liens on the property.


                                                          9
issued according to statutory requirements9; and 3) the bond and notice are

recorded as provided by statutory requirements10.

         In addition to the summary proceeding to remove the lien, a lien can be

discharged under section 53.171.

         iv.      A Lien Can Be Discharged Under Property Code 53.157

           A mechanic's lien or affidavit claiming a mechanic's lien filed under

Section 53.052 may be discharged of record by:

         1. recording a lien release signed by the claimant under Section
            53.152;
         2. failing to institute suit to foreclose the lien in the county in which
            the property is located within the period prescribed by Section
            53.158, 53.175, or 53.208;
         3. recording the original or certified copy of a final judgment or
            decree of a court of competent jurisdiction providing for the
            discharge;
         4. filing the bond and notice in compliance with Subchapter H;
         5. filing the bond in compliance with Subchapter I; or
         6. recording a certified copy of the order removing the lien under
            Section 53.160 and a certificate from the clerk of the court that
            states that no bond or deposit as described by Section 53.161 was
            filed by the claimant within 30 days after the date the order was
            entered.


9
  The notice requirements under TEX. PROP CODE § 53.173 include: a) after the bond is filed, the county clerk shall
issue notice of the bond to all named obliges; b) a copy of the bond must be attached to the notice; c) the notice must
be served on each obligee by mailing a copy of the notice and the bond to the obligee by certified United States
mail, return receipt requested, addressed to the claimant at the address stated in the lien affidavit for the obligee; and
d) If the claimant’s lien affidavit does not state the claimant’s address, the notice is not required to be mailed to the
claimant.
10
   The recording requirements under TEX. PROP CODE § 53.174 state: a) the county clerk shall record the bond, the
notice, and a certificate of mailing in the real property records; b) in acquiring an interest in or insuring title to real
property, a purchaser, insurer of title, or lender may rely on and is absolutely protected by the record of the bond and
the notice to the same extent as if the lien claimant had filed a release of lien in the real property records.


                                                           10
      A lien can be discharged without the heavy handed penalty of a criminal

charge.

      v.     There Are Limitations on Liens That Prevent Claimant From
             Improper Payment

      The amount of a lien claimed by a subcontractor may not exceed: 1) an

amount equal to the proportion of the total subcontract price that the sum of the

labor performed, materials furnished, materials specially fabricated, reasonable

overhead costs incurred, and proportionate profit margin bears to the total

subcontract price; minus 2) the sum of previous payments received by the claimant

on the subcontract. TEX. PROP CODE § 53.024. There are safeguards in place which

would not allow a member of the construction industry to be unjustly enriched. A

lien affidavit filer could never be paid more than the value of the labor performed

or materials furnished because of section 53.024, even if a lien affidavit was filed

that exceeded this amount.

      vi.    A Lien Filed with An Error Can Be Amended

      A lien filed with information that needs to be updated or corrected can be

amended. See Lyda Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221, 236

(Tex. App.—Houston [14th Dist.] 2013, pet. denied) (holding the amended

affidavits gave notice of the builder’s interest in the property in compliance with

the applicable statutes).




                                        11
      If an error has been made on a lien affidavit, it should be amended. An error

should not lead to criminal penalties.

                                   CONCLUSION

      Allowing a criminal penalty to be imposed for filing a lien containing errors

is a punitive punishment for a problem that already can impose civil penalties and

has multiple ways of removing the lien. The Texas Penal Code 32.46(a)(1) should

not, for the first time ever, be applied to filing an improper lien affidavit.

                                       PRAYER

      For these reasons, the undersigned requests that this Court affirm the

judgment of the Appellate Court.




                                           12
                                            Respectfully submitted,

                                            /s/ John S. Polzer
                                            John S. Polzer
                                            State Bar No. 24042609
                                            jpolzer@canteyhanger.com
                                            Christopher A. Brown
                                            State Bar No. 24086267
                                            cbrown@canteyhanger.com

                                            CANTEY HANGER LLP
                                            600 West 6th Street, Suite 300
                                            Fort Worth, Texas 76102
                                            Telephone: (817) 877-2800
                                            Facsimile: (817) 817-2807



                        CERTIFICATE OF COMPLIANCE

        This brief complies with the Texas Rules of Appellate Procedure 9.4(i)

because this brief contains 3,033 words, excluding the parts of the brief exempted

by this rule, and is typed using Microsoft Word in Times New Roman 14-point

font.



        /s/ John S. Polzer
        John S. Polzer

        Dated: August 17, 2015




                                       13
                         CERTIFICATE OF SERVICE

       I hereby certify that on the 17th day of August 2015, I filed the foregoing
electronically with the Clerk of the Court of Criminal Appeals of Texas. I further
certify that I served or caused to be served true and correct copies of the foregoing
brief by electronic mail on the following:

             Matthew J Kita
             Bar No. 24050833
             P.O. Box 5110
             Dallas, TX 75208
             (214) 699-1863 (phone)
             (214) 347-7221 (facsimile)
             matt@mattkita.com

             Counsel for Appellants

             Lara Tomlin
             Bar No. 24075169
             Denton County Assistant District Attorney
             1450 East McKinney Avenue
             Denton, TX 76209
             (940) 349-2600 (phone)
             (940) 349-2751 (facsimile)
             Lara.tomlin@dentoncounty.com

             Counsel for Appellee




                                           /s/ John S. Polzer
                                           John S. Polzer




                                          14
