                          The Attorney             General of Texas
                                               March 31,      1981

MARK WHITE
Attorney General

                      Honorable James B. Adams, Director           Opinion No. MI+31 7
                      Texas Department of Public Safety
                      5805 N. Lamar Boulevard                      Re: Perjurious complaints against
                      Austin, Texas 78773                          law enforcement officers

                      Dear Colonel Adams:

                            Article 6252-20, V.T.C.S., requires that complaints against certain law
                      enforcement officers be placed in writing and signed by the complainants
432,Allmrta
        Ave..
            suite
                160   before the complaints may be considered by superiors 8s a basis for
ElPaso.
      TX.799x         disciplinary action sgainst such officers.      You advise that complaints
91-                   sometimes consist of intentional fabrications or misrepresentations, and ask:

                                 [IsI a person who makes a fake statement, under
                                 oath, concerning a complaint filed against a law
                                 enforcement officer es required in article 6252-20,
                                 V.T.C.S., with intent to deceive and with knowledge
                                 of the statement’s meaning. . . guilty of perjury under
                                 the terms of section 37.02 of the Penal Code or
                                 aggravated perjury under the terms of section 37.03
                                 of the Penal C&t?1

                            Under the Texas Penal Code, a person commits perjury if, with intent
                      to deceive and with knowledge of the statement’s meaning: (1) he makes a
                      fake statement under oath or swears to the truth of a fake statement
                      previously made; and (2) the statement is required or authorized by law to be
                      made under oath. Penal Code S37.02. Cf. Penal Code 537.08 (fake report
                      to peace officer). He commits aggravated perjury if, in addition, the fake
                      statement: (1) is made during or in connection with an official proceeding;
                      and (2) is materiaL Penal Code S37.03.

                              A “statement” means “any representation of fact,” and “official
                       proceeding” means “any type of administrative, executive, legislative, or
                       judicial proceeding that may be conducted before a public servant
                       authorized by law to take statements under oath.” Penal Code S37.OL A
                       statement  is material if it “could have affected the. . . outcome of the
                       official proceeding.” Penal Code S37.04. As to the quantum of proof
                       required for conviction, e article 38.18of the Code of Criminal Procedure.
                      -Cf. Wood v. State, 577 S.W. 2d 477 (Tex. Crim. App. 1978).




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Honorable James B. Adams - Page Two         (Mw-317 )




     The adoption of the 1974 Penal Code worked a change in the law relating to
perjury, as explained by the Practice Commentary found at page 51, volume 4, Texas
Penal Code Annotated (Vernon 1974),following section 37.04:

              Under prior law, lying under oath was covered by two
           principal offenses - pejury and fake swearing, Penal Code
           arts. 302, 310. Fake swearing applied only if an oath was not
           required by law and if the statement was not made in an official
           proceeding; perjury applied if an oath was required by law or if
           the statement was under oath in an official proceeding; and
           fake swearing was not a lesser included offense of perjury.

               Section 37.02 replaces the old fake swearing offense but
           includes some conduct that would have been perjury under prior
           law; it includes all statements authorized to be made under oath
           whether or not an oath is required by law. . . .

               . . . .

               Under Section 37.03 perjury under Section 37.02 is
           aggravated if it is committed in an official proceeding, which is
           defined in Section 37.01 to include hearings before executive or
           administrative agencies and legislative committees es well as
           judicial hearings, and if it is materiaL If either of those
           elements is absent the offense is perjury under Section 37.02, a
           lesser included offense, see C.C.P. art. 37.09.

       Assuming the person who makes the statement has been apprised of the content
and purpose of a complaint filed pursuant to article 6252-20, V.T.C.S., and of the
official character of the investigation conducted in connection therewith, it is our
opinion that aggravated perjury is committed if a material, fake, statement is made
under oath with intent to deceive concerning a complaint filed against a law
enforcement officer pursuantto article 6252-20, V.T.C.S.

      Although article 6252-20, V.T.C.S., does not require that the written complaint it
contemplates be given under oath, a statement is “authorized by law to be made under
oath” within the meaning of sections 37.02 and 37.03 of the Penal Code if it is made
under oath during an official proceeding. Ex Parte Burkett, 577 S.W. 2d 265 (Tex.
Crim. App. 1979). Fake testimony given in en administrative proceeding where a
person assumes an oath before testifying, although the law does not require the witness
to do so, is punishable. See City of San Antonio v. Poulos, 422 S.W. 2d 140(Tex. 1967).
Thus all the elements necessary to convict for aggravated perjury are present under
the example posed if the statement is material and is made %luringor in connection
with an official proceeding.” Penal Code S37.03.

      Prior to the adoption of the 1974 Penal Code, former penal code article 306
included in the description of perjury all oaths, whether required by law or merely
authorized by law, legally taken:




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        Honorable James B. Adams - Page Three (MW-317)




                   in any stage of a hearing, inquiy, meeting, or investigation
                   conducted pursuant to law by any governmental agency or
                   instrumentality having legal power to issue process for the
                   attendance of witnesses. (Emphasisadded).

        Cf. Saunders v. State, 341 S.W. 2d 173 (Tex. Crim. App. 1960). Under section 37.03 of
        the new code, there is no requirement that the governmental sgency or instrumentality
        for which the proceeding is conducted have “legal power to issue -process for the
        attendance of witnesses.” It is enough that the statement upon oath is made during or
        in connection with an “official proceeding.” The present statutory definition of
        “official proceeding” embraces any type of administrative proceeding that may be
        conducted before a public servant authorized by law to take statements under oath.
        Penal Coda S37.01(2).

              In A. H. Belo & Co. v. Lacy, 111S.W. 215 (Tex Civ.. App. 1908, writ ref’d), the
        court conmdered a statute denouncing libel but authorizing, absent malice, publication
        by a newspaper of any “official proceedings authorized by law in the administrationof
        the law.” The court ruled that the publication of an official notation placed on a court
        clerk’s file docket was privileged under that statutorylanguage, saying:

                   ‘Proceedings,~as used and meant, relate to the form and manner
                   of the exerciss of the power conferred by law. The phrase ‘in
                   the administration of the law’is general, and means to include
                   the performance of acts or duties required by the law of
                   officers in the discharge of the required duties of the office; all
                   of the steps taken, and all of the things done, wherein legal
                   procedure is required or authorized by law, are included within
                   its scope. ill S.W. at 217.

        We think the present penal code definition of “official proceeding” is of similar breadth
        and includes all such proceedings conducted before one authorized to take statements
        under oath. Those generally authorizgd to administer oaths are named in article 26,
        V.T.C.S. See Drake v. State, 488 S.W. 2d 534 (Tex. Civ. App. - Dallas 1972, writ repd
        n.r.e.1. PGns     who hold notary commissions are not disqualified therefrom merely
        bsaauss they are officers or employees of the Department of Public Safety. See
        V.T.C.S. arts. 5954, 668713,S6(a); Greer vi State, 437 S.W. 2d 558 (Tex Crim. As
        1969). -Cf. Garrett v. State, 387 S.W. 2d 53 (Tex. Crim. App. 1965).

              A complaint placed in writing and signed by the complainant is a necessary step
        in the initiation of administrative disciplinary proceedings against certain law
        enforcement officers by their superiors. V.T.C.S. art. 6252-20. See V.T.C.S. arts.
        44l3(4), 4413(6),4413(a). Cf. Graves v. City of Dallas, 532 S.W. 2d 106Tex Civ. App. -
        Dallas 1975, writ rePd n.G).    In American Employers’Insurance Co. v. Thompson, 11
        S.W. 2d 358 (Tex. Civ. App. - BaaLde
        admissible in evidence “any order, award or proceeding of said board when duly
        attested and sealed by the Board or its secretary,” the court said in holding a certified
        copy of a notice admissible:




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               Since the complaining party is required by law to give notice
           of his unwillingnessto abide by the award, we think such notice,
           when served upon the Industrial Accident Board, constitutes a
           ‘proceeding’ within the meaning of this article. 11S.W. 2d at
           359.

      Knowledge of the content of a complaint and of the purpose of its filing pursuant
to article 6252-20, V.T.C.S., and of the official character of the investigation
conducted in connection therewith, indicates that an affiant has consciously taken
upon himself the obligation of an oath for the fakity of which aggravated perjury will
lie. See Weadock v. State, 36 S.W. 2d 757 (Tex. Crim. App. 1930); United Services
Automobile Assn. v. Ratteree, 512 S.W. 2d 30 (Tex Civ. App. - San Antonio 1974, writ
rePd n.r.e.1. In our opinion, the making of a written complaint required by law as a
prerequisite to the institution of administrative disciplinary proceedings against law
enforcement officers is an official proceeding within the meaning of Penal Code
section 37.01, and statements in an affidavit given in connection therewith are
statements made in connection with an official DroCeediIIuwithin the meaning of
section 37.03 of the Penal Code. See Simpson v. &ate, 79 KW. 530 (Tex. Crim. App.
1904). See aJso United States v. Browning, 572 F. 2d 720 (10th Cir. 1978); Banach v.
State C-on         on HumanRelations, 356 A. 2d 242 (Md. 1976).
390 S.W. 2d 460 (T    C’ n              Prideaux v. State
247 N.W. 2d 385 (Gzn. gy61

                                   SUMMARY

              A person who makes a fake statement under oath con-
           cerning a complaint filed against a law enforcement officer as
           required by article 6252-20, V.T.C.S., with intent to deceive and
           with knowledge of me statement’s meaning, is guilty of
           aggravated perjury under section 37.03 of the Penal Code if he
           has knowledge of the content of the complaint, the purpose of
           its filing, and me official character of the investigation
           conducted in connection therewith, end if the statement is
           materiaL

                                         &mm&g                                 (’



                                            MARK      WHITE
                                            Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General




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         Honorable James B. Adams - Page Five    (MN-317)




         Prepared by Bruce Youngblood
         Assistant Attorney General

         APPROVED:
         OPINIONCOMMTlTEE

         Sush L. Garrison, Chairman
         Jon Bible
         Rick Gilpin
         Bruce Youngblood




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