By Hartnett                                      H.B. No. 426

      75R3137 MWV-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to false public records; creating an offense.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 32.21, Penal Code, is amended by amending

 1-5     Subsections (e) and (f) to read as follows:

 1-6           (e)  An offense under this section is a felony of the third

 1-7     degree if the writing is or purports to be:

 1-8                 (1)  part of an issue of money, securities, postage or

 1-9     revenue stamps;

1-10                 (2)  a government record listed in Section 37.01(2)(C)

1-11     [37.01(1)(C)]; or

1-12                 (3)  other instruments issued by a state or national

1-13     government or by a subdivision of either, or part of an issue of

1-14     stock, bonds, or other instruments representing interests in or

1-15     claims against another person.

1-16           (f)  A person is presumed to intend to defraud or harm

1-17     another if the person acts with respect to two or more writings of

1-18     the same type and if each writing is a government record listed in

1-19     Section 37.01(2)(C) [37.01(1)(C)].

1-20           SECTION 2.  Section 37.01, Penal Code, is amended to read as

1-21     follows:

1-22           Sec. 37.01.  DEFINITIONS.  In this chapter:

1-23                 (1)  "Court record" means a decree, judgment, order,

1-24     subpoena, warrant, or other document issued by a court of:

 2-1                       (A)  this state;

 2-2                       (B)  another state;

 2-3                       (C)  the United States;

 2-4                       (D)  a foreign country recognized by an act of

 2-5     congress, a statute of this state, or a treaty or other

 2-6     international convention to which the United States is a party;

 2-7                       (E)  an Indian tribe recognized by the United

 2-8     States; or

 2-9                       (F)  any other jurisdiction entitled to full

2-10     faith and credit in this state.

2-11                 (2)  "Governmental record" means:

2-12                       (A)  anything belonging to, received by, or kept

2-13     by government for information;

2-14                       (B)  anything required by law to be kept by

2-15     others for information of government; or

2-16                       (C)  a license, certificate, permit, seal, title,

2-17     or similar document issued by government.

2-18                 (3) [(2)]  "Statement" means any representation of

2-19     fact.

2-20           SECTION 3.  Chapter 37, Penal Code, is amended by adding

2-21     Section 37.13 to read as follows:

2-22           Sec. 37.13.  FRAUDULENT COURT RECORD.  (a)  A person commits

2-23     an offense if the person makes, presents, or uses any document or

2-24     other record with:

2-25                 (1)  knowledge that the document or other record is not

2-26     a genuine court record; and

2-27                 (2)  intent that the document or other record be given

 3-1     the same legal effect as a genuine court record.

 3-2           (b)  An offense under this section is a Class A misdemeanor,

 3-3     except that the offense is a felony of the third degree if it is

 3-4     shown on the trial of the offense that the defendant has previously

 3-5     been convicted under this section on two or more occasions.

 3-6           SECTION 4.  Section 51.605(c), Government Code, is amended to

 3-7     read as follows:

 3-8           (c)  A clerk must successfully complete 20 hours of

 3-9     continuing education courses, including at least one hour of

3-10     continuing education regarding fraudulent court documents, in the

3-11     performance of the duties of office at least one time in each

3-12     24-month period.

3-13           SECTION 5.  Subchapter G, Chapter 51, Government Code, is

3-14     amended by adding Section 51.607 to read as follows:

3-15           Sec. 51.607.  FRAUDULENT COURT RECORD.  (a)  Except as

3-16     provided by Subsection (d), a clerk of the supreme court, clerk of

3-17     the court of criminal appeals, clerk of the court of appeals,

3-18     district clerk, or county clerk may reject a document or other

3-19     record if the clerk reasonably believes that the document or other

3-20     record is a fraudulent court record under Chapter 37, Penal Code.

3-21           (b)  A district clerk or county clerk may request the written

3-22     advice of a county attorney, district attorney, or criminal

3-23     district attorney regarding the legitimacy of a document or other

3-24     record presented to the clerk.

3-25           (c)  A clerk shall post a sign in or near the clerk's office

3-26     stating that it is a crime to file a fraudulent court record with

3-27     the clerk.

 4-1           (d)  A person may petition a court to require the clerk of

 4-2     that court to accept a document or other record rejected by the

 4-3     clerk.

 4-4           SECTION 6.  Subtitle A, Title 2, Civil Practice and Remedies

 4-5     Code, is amended by adding Chapter 12 to read as follows:

 4-6                       CHAPTER 12.  RECORDED DOCUMENTS

 4-7           Sec. 12.001.  DEFINITIONS.  In this chapter:

 4-8                 (1)  "Plaintiff" means:

 4-9                       (A)  a county or district clerk seeking relief

4-10     under this chapter; or

4-11                       (B)  a person named in a recorded document

4-12     seeking relief under this chapter.

4-13                 (2)  "Recorded document" means a document that has been

4-14     recorded with an agency or official of a local government, without

4-15     regard to whether the recording of the document is authorized by

4-16     law, including a document that purports to be:

4-17                       (A)  any type of lien; or

4-18                       (B)  recorded under Chapter 12, Property Code.

4-19           Sec. 12.002.  CAUSE OF ACTION.  (a)  A plaintiff may bring an

4-20     action to obtain an order under Section 12.003.

4-21           (b)  The court shall issue an order under Section 12.003 if

4-22     it is shown that the recorded document is:

4-23                 (1)  false; or

4-24                 (2)  not a document that may be recorded under law.

4-25           Sec. 12.003.  COURT ORDER.  If the court grants relief under

4-26     this chapter, it shall issue an order:

4-27                 (1)  identifying the recorded document;

 5-1                 (2)  stating that the recorded document is false or not

 5-2     a document that may be recorded under law, as appropriate; and

 5-3                 (3)  requiring that:

 5-4                       (A)  the court's order be recorded in the same

 5-5     manner as the recorded document that is the subject of the order;

 5-6     or

 5-7                       (B)  the recorded document that is the subject of

 5-8     the order be destroyed.

 5-9           Sec. 12.004.  DEFENDANT.  The plaintiff shall name as

5-10     defendant to the action the person who caused the recorded document

5-11     to be recorded.  If this person is unknown to the plaintiff,

5-12     citation may be made by publication as provided in the Texas Rules

5-13     of Civil Procedure.

5-14           Sec. 12.005.  VENUE.  An action under this chapter may be

5-15     brought in any justice, county, or district court in the county in

5-16     which the recorded document is recorded.

5-17           Sec. 12.006.  FILING FEES.  (a)  The fee for filing an action

5-18     under this chapter is $1.  The plaintiff must pay the fee to the

5-19     clerk of the court in which the action is filed.  Except as

5-20     provided by Subsection (b), the plaintiff may not be assessed any

5-21     other fee, cost, charge, or expense by the clerk of the court or

5-22     another public official in connection with the action.

5-23           (b)  The fee for service of notice of an action under this

5-24     section charged to the plaintiff may not exceed:

5-25                 (1)  $20 if the notice is delivered in person; or

5-26                 (2)  the cost of postage if the service is by

5-27     registered or certified mail.

 6-1           (c)  If the fee imposed under Subsection (a) is less than the

 6-2     filing fee the court imposes for filing other similar actions and

 6-3     the plaintiff prevails in the action, the court may order a

 6-4     defendant to pay to the court the difference between the fee paid

 6-5     under Subsection (a) and the filing fee the court imposes for

 6-6     filing other similar actions.

 6-7           Sec. 12.007.  PLAINTIFF'S COSTS.  (a)  The court shall award

 6-8     the plaintiff the costs of bringing the action if:

 6-9                 (1)  the plaintiff prevails; and

6-10                 (2)  the court finds that the defendant, at the time

6-11     the defendant caused the  recorded document to be recorded, knew or

6-12     should have known that the  recorded document is:

6-13                       (A)  false; or

6-14                       (B)  not a document that may be recorded under

6-15     law.

6-16           (b)  For purposes of this section, the costs of bringing the

6-17     action include all court costs, attorney's fees, and related

6-18     expenses of bringing the action, including investigative expenses.

6-19           Sec. 12.008.  REPRESENTATION BY COUNTY ATTORNEY.  The county

6-20     attorney shall represent a district clerk or county clerk seeking

6-21     relief under this chapter.

6-22           Sec. 12.009.  EFFECT ON OTHER LAW.  This law is cumulative of

6-23     other law under which a plaintiff may obtain judicial relief with

6-24     respect to a recorded document.

6-25           SECTION 7.  Section 202.001(b), Local Government Code, is

6-26     amended to read as follows:

6-27           (b)  The following records may be destroyed without meeting

 7-1     the conditions of Subsection (a):

 7-2                 (1)  records the destruction or obliteration of which

 7-3     is directed by an expunction order issued by a [district] court

 7-4     pursuant to state law; and

 7-5                 (2)  records defined as exempt from scheduling or

 7-6     filing requirements by rules adopted by the commission or listed as

 7-7     exempt in a records retention schedule issued by the commission.

 7-8           SECTION 8.  An action for an order under Chapter 12, Civil

 7-9     Practice and Remedies Code, as added by this Act, may be brought

7-10     with respect to a recorded document without regard to whether the

7-11     document was filed before, on, or after the effective date of this

7-12     Act.

7-13           SECTION 9.  A clerk shall complete one hour of continuing

7-14     education regarding fraudulent court documents required by Section

7-15     51.605(c), Government Code, as amended by this Act, before

7-16     September 1, 1999.

7-17           SECTION 10.  This Act takes effect September 1, 1997.

7-18           SECTION 11.  The importance of this legislation and the

7-19     crowded condition of the calendars in both houses create an

7-20     emergency and an imperative public necessity that the

7-21     constitutional rule requiring bills to be read on three several

7-22     days in each house be suspended, and this rule is hereby suspended.