1-1 AN ACT
1-2 relating to the fraudulent exercise of certain governmental
1-3 functions and the fraudulent creation or use of certain pleadings,
1-4 governmental documents, and records; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 32.21(e) and (f), Penal Code, are
1-7 amended to read as follows:
1-8 (e) An offense under this section is a felony of the third
1-9 degree if the writing is or purports to be:
1-10 (1) part of an issue of money, securities, postage or
1-11 revenue stamps;
1-12 (2) a government record listed in Section 37.01(2)(C)
1-13 [37.01(1)(C)]; or
1-14 (3) other instruments issued by a state or national
1-15 government or by a subdivision of either, or part of an issue of
1-16 stock, bonds, or other instruments representing interests in or
1-17 claims against another person.
1-18 (f) A person is presumed to intend to defraud or harm
1-19 another if the person acts with respect to two or more writings of
1-20 the same type and if each writing is a government record listed in
1-21 Section 37.01(2)(C) [37.01(1)(C)].
1-22 SECTION 2. Section 32.46, Penal Code, is amended to read as
1-23 follows:
1-24 Sec. 32.46. SECURING EXECUTION OF DOCUMENT BY DECEPTION.
2-1 (a) A person commits an offense if, with intent to defraud or harm
2-2 any person, he, by deception:
2-3 (1) [,] causes another to sign or execute any document
2-4 affecting property or service or the pecuniary interest of any
2-5 person; or
2-6 (2) causes or induces a public servant to file or
2-7 record any purported judgment or other document purporting to
2-8 memorialize or evidence an act, an order, a directive, or process
2-9 of:
2-10 (A) a purported court that is not expressly
2-11 created or established under the constitution or the laws of this
2-12 state or of the United States;
2-13 (B) a purported judicial entity that is not
2-14 expressly created or established under the constitution or laws of
2-15 this state or of the United States; or
2-16 (C) a purported judicial officer of a purported
2-17 court or purported judicial entity described by Paragraph (A) or
2-18 (B).
2-19 (b) An offense under Subsection (a)(1) [this section] is a:
2-20 (1) Class C misdemeanor if the value of the property,
2-21 service, or pecuniary interest is less than $20;
2-22 (2) Class B misdemeanor if the value of the property,
2-23 service, or pecuniary interest is $20 or more but less than $500;
2-24 (3) Class A misdemeanor if the value of the property,
2-25 service, or pecuniary interest is $500 or more but less than
2-26 $1,500;
2-27 (4) state jail felony if the value of the property,
3-1 service, or pecuniary interest is $1,500 or more but less than
3-2 $20,000;
3-3 (5) felony of the third degree if the value of the
3-4 property, service, or pecuniary interest is $20,000 or more but
3-5 less than $100,000;
3-6 (6) felony of the second degree if the value of the
3-7 property, service, or pecuniary interest is $100,000 or more but
3-8 less than $200,000; or
3-9 (7) felony of the first degree if the value of the
3-10 property, service, or pecuniary interest is $200,000 or more.
3-11 (c) An offense under Subsection (a)(2) is a state jail
3-12 felony.
3-13 (d) In this section, "deception" has the meaning assigned by
3-14 Section 31.01.
3-15 SECTION 3. Subchapter D, Chapter 32, Penal Code, is amended
3-16 by adding Section 32.48 to read as follows:
3-17 Sec. 32.48. SIMULATING LEGAL PROCESS. (a) A person commits
3-18 an offense if the person recklessly causes to be delivered to
3-19 another any document that simulates a summons, complaint, judgment,
3-20 or other court process with the intent to:
3-21 (1) induce payment of a claim from another person; or
3-22 (2) cause another to:
3-23 (A) submit to the putative authority of the
3-24 document; or
3-25 (B) take any action or refrain from taking any
3-26 action in response to the document, in compliance with the
3-27 document, or on the basis of the document.
4-1 (b) Proof that the document was mailed to any person with
4-2 the intent that it be forwarded to the intended recipient is a
4-3 sufficient showing that the document was delivered.
4-4 (c) It is not a defense to prosecution under this section
4-5 that the simulating document:
4-6 (1) states that it is not legal process; or
4-7 (2) purports to have been issued or authorized by a
4-8 person or entity who did not have lawful authority to issue or
4-9 authorize the document.
4-10 (d) If it is shown on the trial of an offense under this
4-11 section that the simulating document was filed with, presented to,
4-12 or delivered to a clerk of a court or an employee of a clerk of a
4-13 court created or established under the constitution or laws of this
4-14 state, there is a rebuttable presumption that the document was
4-15 delivered with the intent described by Subsection (a).
4-16 (e) Except as provided by Subsection (f), an offense under
4-17 this section is a Class A misdemeanor.
4-18 (f) If it is shown on the trial of an offense under this
4-19 section that the defendant has previously been convicted of a
4-20 violation of this section, the offense is a state jail felony.
4-21 SECTION 4. Subchapter D, Chapter 32, Penal Code, is amended
4-22 by adding Section 32.49 to read as follows:
4-23 Sec. 32.49. REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR
4-24 CLAIM. (a) A person commits an offense if, with intent to defraud
4-25 or harm another, the person:
4-26 (1) owns, holds, or is the beneficiary of a purported
4-27 lien or claim asserted against real or personal property or an
5-1 interest in real or personal property that is fraudulent, as
5-2 described by Section 51.901(c), Government Code; and
5-3 (2) not later than the 21st day after the date of
5-4 receipt of actual or written notice sent by either certified or
5-5 registered mail, return receipt requested, to the person's last
5-6 known address, or by telephonic document transfer to the
5-7 recipient's current telecopier number, requesting the execution of
5-8 a release of the fraudulent lien or claim, refuses to execute the
5-9 release on the request of:
5-10 (A) the obligor or debtor; or
5-11 (B) any person who owns any interest in the real
5-12 or personal property described in the document or instrument that
5-13 is the basis for the lien or claim.
5-14 (b) A person who fails to execute a release of the purported
5-15 lien or claim within the period prescribed by Subsection (a)(2) is
5-16 presumed to have had the intent to harm or defraud another.
5-17 (c) An offense under this section is a Class A misdemeanor.
5-18 SECTION 5. Section 37.01, Penal Code, is amended to read as
5-19 follows:
5-20 Sec. 37.01. DEFINITIONS. In this chapter:
5-21 (1) "Court record" means a decree, judgment, order,
5-22 subpoena, warrant, minutes, or other document issued by a court of:
5-23 (A) this state;
5-24 (B) another state;
5-25 (C) the United States;
5-26 (D) a foreign country recognized by an act of
5-27 congress or a treaty or other international convention to which the
6-1 United States is a party;
6-2 (E) an Indian tribe recognized by the United
6-3 States; or
6-4 (F) any other jurisdiction, territory, or
6-5 protectorate entitled to full faith and credit in this state under
6-6 the United States Constitution.
6-7 (2) "Governmental record" means:
6-8 (A) anything belonging to, received by, or kept
6-9 by government for information, including a court record;
6-10 (B) anything required by law to be kept by
6-11 others for information of government; or
6-12 (C) a license, certificate, permit, seal, title,
6-13 letter of patent, or similar document issued by government.
6-14 (3) [(2)] "Statement" means any representation of
6-15 fact.
6-16 SECTION 6. Section 37.10, Penal Code, is amended by amending
6-17 Subsection (d) and adding Subsection (h) to read as follows:
6-18 (d) An offense under this section is a felony of the third
6-19 degree if it is shown on the trial of the offense that the
6-20 governmental record was a license, certificate, permit, seal,
6-21 title, letter of patent, or similar document issued by government,
6-22 unless the actor's intent is to defraud or harm another, in which
6-23 event the offense is a felony of the second degree.
6-24 (h) If conduct that constitutes an offense under this
6-25 section also constitutes an offense under Section 32.48 or 37.13,
6-26 the actor may be prosecuted under any of those sections.
6-27 SECTION 7. Section 37.11, Penal Code, is amended to read as
7-1 follows:
7-2 Sec. 37.11. IMPERSONATING PUBLIC SERVANT. (a) A person
7-3 commits an offense if he:
7-4 (1) impersonates a public servant with intent to
7-5 induce another to submit to his pretended official authority or to
7-6 rely on his pretended official acts; or
7-7 (2) knowingly purports to exercise any function of a
7-8 public servant or of a public office, including that of a judge
7-9 and court, and the position or office through which he purports to
7-10 exercise a function of a public servant or public office has no
7-11 lawful existence under the constitution or laws of this state or of
7-12 the United States.
7-13 (b) An offense under this section is [a Class A misdemeanor
7-14 unless the person impersonated a peace officer, in which event it
7-15 is] a felony of the third degree.
7-16 SECTION 8. Chapter 37, Penal Code, is amended by adding
7-17 Section 37.13 to read as follows:
7-18 Sec. 37.13. RECORD OF A FRAUDULENT COURT. (a) A person
7-19 commits an offense if the person makes, presents, or uses any
7-20 document or other record with:
7-21 (1) knowledge that the document or other record is not
7-22 a record of a court created under or established by the
7-23 constitution or laws of this state or of the United States; and
7-24 (2) the intent that the document or other record be
7-25 given the same legal effect as a record of a court created under or
7-26 established by the constitution or laws of this state or of the
7-27 United States.
8-1 (b) An offense under this section is a Class A misdemeanor,
8-2 except that the offense is a felony of the third degree if it is
8-3 shown on the trial of the offense that the defendant has previously
8-4 been convicted under this section on two or more occasions.
8-5 (c) If conduct that constitutes an offense under this
8-6 section also constitutes an offense under Section 32.48 or 37.10,
8-7 the actor may be prosecuted under any of those sections.
8-8 SECTION 9. Section 71.02(a), Penal Code, is amended to read
8-9 as follows:
8-10 (a) A person commits an offense if, with the intent to
8-11 establish, maintain, or participate in a combination or in the
8-12 profits of a combination or as a member of a criminal street gang,
8-13 he commits or conspires to commit one or more of the following:
8-14 (1) murder, capital murder, arson, aggravated robbery,
8-15 robbery, burglary, theft, aggravated kidnapping, kidnapping,
8-16 aggravated assault, aggravated sexual assault, sexual assault,
8-17 forgery, deadly conduct, assault punishable as a Class A
8-18 misdemeanor, burglary of a motor vehicle, or unauthorized use of a
8-19 motor vehicle;
8-20 (2) any gambling offense punishable as a Class A
8-21 misdemeanor;
8-22 (3) promotion of prostitution, aggravated promotion of
8-23 prostitution, or compelling prostitution;
8-24 (4) unlawful manufacture, transportation, repair, or
8-25 sale of firearms or prohibited weapons;
8-26 (5) unlawful manufacture, delivery, dispensation, or
8-27 distribution of a controlled substance or dangerous drug, or
9-1 unlawful possession of a controlled substance or dangerous drug
9-2 through forgery, fraud, misrepresentation, or deception;
9-3 (6) any unlawful wholesale promotion or possession of
9-4 any obscene material or obscene device with the intent to wholesale
9-5 promote the same;
9-6 (7) any unlawful employment, authorization, or
9-7 inducing of a child younger than 17 years of age in an obscene
9-8 sexual performance;
9-9 (8) any felony offense under Chapter 32, Penal Code;
9-10 (9) any offense under Chapter 36, Penal Code; [or]
9-11 (10) any offense under Chapter 34, Penal Code; or
9-12 (11) any offense under Section 37.11(a), Penal Code.
9-13 SECTION 10. Chapter 37, Penal Code, is amended by adding
9-14 Section 37.101 to read as follows:
9-15 Sec. 37.101. FRAUDULENT FILING OF FINANCING STATEMENT. (a)
9-16 A person commits an offense if the person knowingly presents for
9-17 filing or causes to be presented for filing a financing statement
9-18 that the person knows:
9-19 (1) is forged;
9-20 (2) contains a material false statement; or
9-21 (3) is groundless.
9-22 (b) An offense under Subsection (a)(1) is a felony of the
9-23 third degree, unless it is shown on the trial of the offense that
9-24 the person had previously been convicted under this section on two
9-25 or more occasions, in which event the offense is a felony of the
9-26 second degree. An offense under Subsection (a)(2) or (a)(3) is a
9-27 Class A misdemeanor, unless the person commits the offense with the
10-1 intent to defraud or harm another, in which event the offense is a
10-2 state jail felony.
10-3 SECTION 11. Chapter 1, Code of Criminal Procedure, is
10-4 amended by adding Article 1.052 to read as follows:
10-5 Art. 1.052. SIGNED PLEADINGS OF DEFENDANT. (a) A pleading,
10-6 motion, and other paper filed for or on behalf of a defendant
10-7 represented by an attorney must be signed by at least one attorney
10-8 of record in the attorney's name and state the attorney's address.
10-9 A defendant who is not represented by an attorney must sign any
10-10 pleading, motion, or other paper filed for or on the defendant's
10-11 behalf and state the defendant's address.
10-12 (b) The signature of an attorney or a defendant constitutes
10-13 a certificate by the attorney or defendant that the person has read
10-14 the pleading, motion, or other paper and that to the best of the
10-15 person's knowledge, information, and belief formed after reasonable
10-16 inquiry that the instrument is not groundless and brought in bad
10-17 faith or groundless and brought for harassment, unnecessary delay,
10-18 or other improper purpose.
10-19 (c) If a pleading, motion, or other paper is not signed, the
10-20 court shall strike it unless it is signed promptly after the
10-21 omission is called to the attention of the attorney or defendant.
10-22 (d) An attorney or defendant who files a fictitious pleading
10-23 in a cause for an improper purpose described by Subsection (b) or
10-24 who makes a statement in a pleading that the attorney or defendant
10-25 knows to be groundless and false to obtain a delay of the trial of
10-26 the cause or for the purpose of harassment shall be held guilty of
10-27 contempt.
11-1 (e) If a pleading, motion, or other paper is signed in
11-2 violation of this article, the court, on motion or on its own
11-3 initiative, after notice and hearing, shall impose an appropriate
11-4 sanction, which may include an order to pay to the other party or
11-5 parties to the prosecution or to the general fund of the county in
11-6 which the pleading, motion, or other paper was filed the amount of
11-7 reasonable expenses incurred because of the filing of the pleading,
11-8 motion, or other paper, including reasonable attorney's fees.
11-9 (f) A court shall presume that a pleading, motion, or other
11-10 paper is filed in good faith. Sanctions under this article may not
11-11 be imposed except for good cause stated in the sanction order.
11-12 (g) A plea of "not guilty" or "no contest" or "nolo
11-13 contendere" does not constitute a violation of this article. An
11-14 allegation that an event took place or occurred on or about a
11-15 particular date does not constitute a violation of this article.
11-16 (h) In this article, "groundless" means without basis in law
11-17 or fact and not warranted by a good faith argument for the
11-18 extension, modification, or reversal of existing law.
11-19 SECTION 12. Chapter 13, Code of Criminal Procedure, is
11-20 amended by adding Article 13.26 to read as follows:
11-21 Art. 13.26. SIMULATING LEGAL PROCESS. An offense under
11-22 Section 32.46, 32.48, 32.49, or 37.13, Penal Code, may be
11-23 prosecuted either in the county from which any material document
11-24 was sent or in the county in which it was delivered.
11-25 SECTION 13. Section 51.605(c), Government Code, is amended
11-26 to read as follows:
11-27 (c) A clerk must successfully complete 20 hours of
12-1 continuing education courses in the performance of the duties of
12-2 office at least one time in each 24-month period. The 20 hours of
12-3 required continuing education courses must include at least one
12-4 hour of continuing education regarding fraudulent court documents
12-5 and fraudulent document filings.
12-6 SECTION 14. Chapter 51, Government Code, is amended by
12-7 adding Subchapter J to read as follows:
12-8 SUBCHAPTER J. CERTAIN FRAUDULENT RECORDS OR DOCUMENTS
12-9 Sec. 51.901. FRAUDULENT DOCUMENT OR INSTRUMENT. (a) If a
12-10 clerk of the supreme court, clerk of the court of criminal appeals,
12-11 clerk of a court of appeals, district clerk, county clerk, district
12-12 and county clerk, or municipal clerk has a reasonable basis to
12-13 believe in good faith that a document or instrument previously
12-14 filed or recorded or offered or submitted for filing or for filing
12-15 and recording is fraudulent, the clerk shall:
12-16 (1) if the document is a purported judgment or other
12-17 document purporting to memorialize or evidence an act, an order, a
12-18 directive, or process of a purported court, provide written notice
12-19 of the filing, recording, or submission for filing or for filing
12-20 and recording to the stated or last known address of the person
12-21 against whom the purported judgment, act, order, directive, or
12-22 process is rendered; or
12-23 (2) if the document or instrument purports to create a
12-24 lien or assert a claim on real or personal property or an interest
12-25 in real or personal property, provide written notice of the filing,
12-26 recording, or submission for filing or for filing and recording to
12-27 the stated or last known address of the person named in the
13-1 document or instrument as the obligor or debtor and to any person
13-2 named as owning any interest in the real or personal property
13-3 described in the document or instrument.
13-4 (b) A clerk shall provide written notice under Subsection
13-5 (a):
13-6 (1) not later than the second business day after the
13-7 date that the document or instrument is offered or submitted for
13-8 filing or for filing and recording; or
13-9 (2) if the document or instrument has been previously
13-10 filed or recorded, not later than the second business day after the
13-11 date that the clerk becomes aware that the document or instrument
13-12 may be fraudulent.
13-13 (c) For purposes of this section, a document or instrument
13-14 is presumed to be fraudulent if:
13-15 (1) the document is a purported judgment or other
13-16 document purporting to memorialize or evidence an act, an order, a
13-17 directive, or process of:
13-18 (A) a purported court or a purported judicial
13-19 entity not expressly created or established under the constitution
13-20 or the laws of this state or of the United States; or
13-21 (B) a purported judicial officer of a purported
13-22 court or purported judicial entity described by Paragraph (A); or
13-23 (2) the document or instrument purports to create a
13-24 lien or assert a claim against real or personal property or an
13-25 interest in real or personal property and:
13-26 (A) is not a document or instrument provided for
13-27 by the constitution or laws of this state or of the United States;
14-1 (B) is not created by implied or express consent
14-2 or agreement of the obligor, debtor, or the owner of the real or
14-3 personal property or an interest in the real or personal property,
14-4 if required under the laws of this state, or by implied or express
14-5 consent or agreement of an agent, fiduciary, or other
14-6 representative of that person; or
14-7 (C) is not an equitable, constructive, or other
14-8 lien imposed by a court with jurisdiction created or established
14-9 under the constitution or laws of this state or of the United
14-10 States.
14-11 Sec. 51.902. ACTION ON FRAUDULENT JUDGMENT LIEN. (a) A
14-12 person against whom a purported judgment was rendered who has
14-13 reason to believe that a document previously filed or recorded or
14-14 submitted for filing or for filing and recording is fraudulent may
14-15 complete and file with the district clerk a motion, verified by
14-16 affidavit by a completed form for ordinary certificate of
14-17 acknowledgment, of the same type described by Section 121.007,
14-18 Civil Practice and Remedies Code, that contains, at a minimum, the
14-19 information in the following suggested form:
14-20 MISC. DOCKET NO. __________
14-21 In Re: A Purported In the _______ Judicial District
14-22 Judgment Lien Against In and For _____________________
14-23 (Name of Purported County, Texas
14-24 Debtor)
14-25 Motion for Judicial Review of a Documentation Purporting to
14-26 Create a Judgment Lien
14-27 Now Comes (name) and files this motion requesting a judicial
15-1 determination of the status of a court, judicial entity, or
15-2 judicial officer purporting to have taken an action that is the
15-3 basis of a judgment lien filed in the office of said clerk, and in
15-4 support of the motion would show the court as follows:
15-5 I.
15-6 (Name), movant herein, is the person against whom the
15-7 purported judgment was rendered.
15-8 II.
15-9 On (date), in the exercise of the county clerk's official
15-10 duties as County Clerk of (county name) County, Texas, the county
15-11 clerk received and filed or filed and recorded the documentation
15-12 attached hereto and containing (number) pages. Said documentation
15-13 purports to have been rendered on the basis of a judgment, act,
15-14 order, directive, or process of a court, judicial entity, or
15-15 judicial officer called therein "(name of purported court, judicial
15-16 entity, or judicial officer)" against one (name of purported
15-17 debtor).
15-18 III.
15-19 Movant alleges that the purported court, judicial entity, or
15-20 judicial officer referred to in the attached documentation is one
15-21 described in Section 51.901(c)(1), Government Code, as not legally
15-22 created or established under the constitution or laws of this state
15-23 or of the United States, and that the documentation should
15-24 therefore not be accorded lien status.
15-25 IV.
15-26 Movant further attests that the assertions contained herein
15-27 are true and correct.
16-1 PRAYER
16-2 Movant requests the court to review the attached
16-3 documentation and enter an order determining whether it should be
16-4 accorded lien status, together with such other orders as the court
16-5 deems appropriate.
16-6 Respectfully submitted,
16-7 _________________________
16-8 (Signature and typed name
16-9 and address)
16-10 (b) The completed form for ordinary certificate of
16-11 acknowledgment, of the same type described by Section 121.007,
16-12 Civil Practice and Remedies Code, must be as follows:
16-13 AFFIDAVIT
16-14 THE STATE OF TEXAS
16-15 COUNTY OF ______________
16-16 BEFORE ME, the undersigned authority, personally appeared
16-17 ____________, who, being by me duly sworn, deposed as follows:
16-18 "My name is __________________. I am over 21 years of age,
16-19 of sound mind, with personal knowledge of the following facts, and
16-20 fully competent to testify.
16-21 I further attest that the assertions contained in the
16-22 accompanying motion are true and correct."
16-23 Further affiant sayeth not.
16-24 __________________________________
16-25 SUBSCRIBED and SWORN TO before me, this
16-26 _______ day of _________________________, ____.
16-27 __________________________________
17-1 NOTARY PUBLIC, State of Texas
17-2 Notary's printed name:
17-3 ______________________
17-4 My commission expires:
17-5 ________________________
17-6 (c) A motion filed under this section may be ruled on by a
17-7 district judge having jurisdiction over real property matters in
17-8 the county where the subject documentation was filed. The court's
17-9 finding may be made solely on a review of the documentation
17-10 attached to the movant's motion and without hearing any testimonial
17-11 evidence. The court's review may be made ex parte without delay or
17-12 notice of any kind. The court's ruling on the motion, in the
17-13 nature of a finding of fact and a conclusion of law, is
17-14 unappealable if it is substantially similar to the form suggested
17-15 in Subsection (g).
17-16 (d) The district clerk may not collect a filing fee for
17-17 filing a motion under this section.
17-18 (e) After reviewing the documentation attached to a motion
17-19 under this section, the district judge shall enter an appropriate
17-20 finding of fact and conclusion of law, which must be filed and
17-21 indexed in the same class of records in which the subject
17-22 documentation or instrument was originally filed.
17-23 (f) The county clerk may not collect a filing fee for filing
17-24 a district judge's finding of fact and conclusion of law under this
17-25 section.
17-26 (g) A suggested form order appropriate to comply with this
17-27 section is as follows:
18-1 MISC. DOCKET NO. __________
18-2 In Re: A Purported In the _______ Judicial District
18-3 Judgment Lien Against In and For _____________________
18-4 (Name of Purported County, Texas
18-5 Debtor)
18-6 Judicial Finding of Fact and Conclusion of Law
18-7 Regarding a Documentation Purporting to Create a Judgment Lien
18-8 On the (number) day of (month), (year), in the above entitled
18-9 and numbered cause, this court reviewed a motion verified by
18-10 affidavit of (name) and the documentation attached thereto. No
18-11 testimony was taken from any party, nor was there any notice of the
18-12 court's review, the court having made the determination that a
18-13 decision could be made solely on review of the documentation under
18-14 the authority vested in the court under Subchapter J, Chapter 51,
18-15 Government Code.
18-16 The court finds as follows (only an item checked and
18-17 initialed is a valid court ruling):
18-18 ______ The documentation attached to the motion herein refers to a
18-19 legally constituted court, judicial entity, or judicial officer
18-20 created by or established under the constitution or laws of this
18-21 state or of the United States. This judicial finding and
18-22 conclusion of law does not constitute a finding as to any
18-23 underlying claims of the parties.
18-24 ______ The documentation attached to the motion herein DOES NOT
18-25 refer to a legally constituted court, judicial entity, or judicial
18-26 officer created by or established under the constitution or laws of
18-27 this state or of the United States. There is no valid judgment
19-1 lien created by the documentation.
19-2 This court makes no finding as to any underlying claims of
19-3 the parties involved and expressly limits its finding of fact and
19-4 conclusion of law to a ministerial act. The county clerk shall
19-5 file this finding of fact and conclusion of law in the same class
19-6 of records as the subject documentation was originally filed, and
19-7 the court directs the county clerk to index it using the same names
19-8 that were used in indexing the subject document.
19-9 SIGNED ON THIS THE ________ DAY OF____________________.
19-10 _______________________________
19-11 DISTRICT JUDGE
19-12 ________ JUDICIAL DISTRICT
19-13 _________________ COUNTY, TEXAS
19-14 Sec. 51.903. ACTION ON FRAUDULENT LIEN ON PROPERTY. (a) A
19-15 person who is the purported debtor or obligor or who owns real or
19-16 personal property or an interest in real or personal property and
19-17 who has reason to believe that the document purporting to create a
19-18 lien or a claim against the real or personal property or an
19-19 interest in the real or personal property previously filed or
19-20 submitted for filing and recording is fraudulent may complete and
19-21 file with the district clerk a motion, verified by affidavit by a
19-22 completed form for ordinary certificate of acknowledgment, of the
19-23 same type described by Section 121.007, Civil Practice and Remedies
19-24 Code, that contains, at a minimum, the information in the following
19-25 suggested form:
19-26 MISC. DOCKET NO. __________
19-27 In Re: A Purported In the _______ Judicial District
20-1 Lien or Claim Against In and For _____________________
20-2 (Name of Purported County, Texas
20-3 Debtor)
20-4 Motion for Judicial Review of Documentation or Instrument
20-5 Purporting to Create a Lien or Claim
20-6 Now Comes (name) and files this motion requesting a judicial
20-7 determination of the status of documentation or an instrument
20-8 purporting to create an interest in real or personal property or a
20-9 lien or claim on real or personal property or an interest in real
20-10 or personal property filed in the office of the Clerk of (county
20-11 name) County, Texas, and in support of the motion would show the
20-12 court as follows:
20-13 I.
20-14 (Name), movant herein, is the purported obligor or debtor or
20-15 person who owns the real or personal property or the interest in
20-16 real or personal property described in the documentation or
20-17 instrument.
20-18 II.
20-19 On (date), in the exercise of the county clerk's official
20-20 duties as County Clerk of (county name) County, Texas, the county
20-21 clerk received and filed and recorded the documentation or
20-22 instrument attached hereto and containing (number) pages. Said
20-23 documentation or instrument purports to have created a lien on real
20-24 or personal property or an interest in real or personal property
20-25 against one (name of purported debtor).
21-1 III.
21-2 Movant alleges that the documentation or instrument attached
21-3 hereto is fraudulent, as defined by Section 51.901(c)(2),
21-4 Government Code, and that the documentation or instrument should
21-5 therefore not be accorded lien status.
21-6 IV.
21-7 Movant attests that assertions herein are true and correct.
21-8 V.
21-9 Movant does not request the court to make a finding as to any
21-10 underlying claim of the parties involved and acknowledges that this
21-11 motion does not seek to invalidate a legitimate lien. Movant
21-12 further acknowledges that movant may be subject to sanctions, as
21-13 provided by Chapter 10, Civil Practice and Remedies Code, if this
21-14 motion is determined to be frivolous.
21-15 PRAYER
21-16 Movant requests the court to review the attached
21-17 documentation or instrument and enter an order determining whether
21-18 it should be accorded lien status, together with such other orders
21-19 as the court deems appropriate.
21-20 Respectfully submitted,
21-21 _________________________
21-22 (Signature and typed name
21-23 and address)
21-24 (b) The completed form for ordinary certificate of
21-25 acknowledgment, of the same type described by Section 121.007,
21-26 Civil Practice and Remedies Code, must be as follows:
22-1 AFFIDAVIT
22-2 THE STATE OF TEXAS
22-3 COUNTY OF _____________
22-4 BEFORE ME, the undersigned authority, personally appeared
22-5 _____________, who, being by me duly sworn, deposed as follows:
22-6 "My name is _________________. I am over 21 years of age, of
22-7 sound mind, with personal knowledge of the following facts, and
22-8 fully competent to testify.
22-9 I further attest that the assertions contained in the
22-10 accompanying motion are true and correct."
22-11 Further affiant sayeth not.
22-12 __________________________________
22-13 SUBSCRIBED and SWORN TO before me, this
22-14 _______ day of ___________________, ____.
22-15 ___________________________________
22-16 NOTARY PUBLIC, State of Texas
22-17 Notary's printed name:
22-18 ______________________
22-19 My commission expires:
22-20 ______________________
22-21 (c) A motion under this section may be ruled on by a
22-22 district judge having jurisdiction over real property matters in
22-23 the county where the subject document was filed. The court's
22-24 finding may be made solely on a review of the documentation or
22-25 instrument attached to the motion and without hearing any
22-26 testimonial evidence. The court's review may be made ex parte
22-27 without delay or notice of any kind. An appellate court shall
23-1 expedite review of a court's finding under this section.
23-2 (d) The district clerk may not collect a filing fee for
23-3 filing a motion under this section.
23-4 (e) After reviewing the documentation or instrument attached
23-5 to a motion under this section, the district judge shall enter an
23-6 appropriate finding of fact and conclusion of law, which must be
23-7 filed and indexed in the same class of records in which the subject
23-8 documentation or instrument was originally filed. A copy of the
23-9 finding of fact and conclusion of law shall be sent, by first class
23-10 mail, to the movant and to the person who filed the fraudulent lien
23-11 or claim at the last known address of each person within seven days
23-12 of the date that the finding of fact and conclusion of law is
23-13 issued by the judge.
23-14 (f) The county clerk may not collect a fee for filing a
23-15 district judge's finding of fact and conclusion of law under this
23-16 section.
23-17 (g) A suggested form order appropriate to comply with this
23-18 section is as follows:
23-19 MISC. DOCKET NO. __________
23-20 In Re: A Purported In the _______ Judicial District
23-21 Lien or Claim Against In and For _____________________
23-22 (Name of Purported County, Texas
23-23 Debtor)
23-24 Judicial Finding of Fact and Conclusion of Law Regarding a
23-25 Documentation or Instrument Purporting to Create a Lien or Claim
23-26 On the (number) day of (month), (year), in the above entitled
23-27 and numbered cause, this court reviewed a motion, verified by
24-1 affidavit, of (name) and the documentation or instrument attached
24-2 thereto. No testimony was taken from any party, nor was there any
24-3 notice of the court's review, the court having made the
24-4 determination that a decision could be made solely on review of the
24-5 documentation or instrument under the authority vested in the court
24-6 under Subchapter J, Chapter 51, Government Code.
24-7 The court finds as follows (only an item checked and
24-8 initialed is a valid court ruling):
24-9 _______ The documentation or instrument attached to the motion
24-10 herein IS asserted against real or personal property or an interest
24-11 in real or personal property and:
24-12 (1) IS provided for by specific state or federal
24-13 statutes or constitutional provisions;
24-14 (2) IS created by implied or express consent or
24-15 agreement of the obligor, debtor, or the owner of the real or
24-16 personal property or an interest in the real or personal property,
24-17 if required under the laws of this state, or by consent of an
24-18 agent, fiduciary, or other representative of that person; or
24-19 (3) IS an equitable, constructive, or other lien
24-20 imposed by a court of competent jurisdiction created or
24-21 established under the constitution or laws of this state or of the
24-22 United States.
24-23 _______ The documentation or instrument attached to the motion
24-24 herein:
24-25 (1) IS NOT provided for by specific state or federal
24-26 statutes or constitutional provisions;
24-27 (2) IS NOT created by implied or express consent or
25-1 agreement of the obligor, debtor, or the owner of the real or
25-2 personal property or an interest in the real or personal property,
25-3 if required under the law of this state or by implied or express
25-4 consent or agreement of an agent, fiduciary, or other
25-5 representative of that person;
25-6 (3) IS NOT an equitable, constructive, or other lien
25-7 imposed by a court of competent jurisdiction created by or
25-8 established under the constitution or laws of this state or the
25-9 United States; or
25-10 (4) IS NOT asserted against real or personal property
25-11 or an interest in real or personal property. There is no valid
25-12 lien or claim created by this documentation or instrument.
25-13 This court makes no finding as to any underlying claims of
25-14 the parties involved, and expressly limits its finding of fact and
25-15 conclusion of law to the review of a ministerial act. The county
25-16 clerk shall file this finding of fact and conclusion of law in the
25-17 same class of records as the subject documentation or instrument
25-18 was originally filed, and the court directs the county clerk to
25-19 index it using the same names that were used in indexing the
25-20 subject documentation or instrument.
25-21 SIGNED ON THIS THE ________ DAY OF____________________.
25-22 _______________________________
25-23 DISTRICT JUDGE
25-24 ________ JUDICIAL DISTRICT
25-25 _________________ COUNTY, TEXAS
25-26 Sec. 51.904. WARNING SIGN. A clerk described by Section
25-27 51.901(a) shall post a sign, in letters at least one inch in
26-1 height, that is clearly visible to the general public in or near
26-2 the clerk's office stating that it is a crime to intentionally or
26-3 knowingly file a fraudulent court record or a fraudulent instrument
26-4 with the clerk.
26-5 Sec. 51.905. DOCUMENTS FILED WITH SECRETARY OF STATE.
26-6 (a) If the lien or other claim that is the subject of a judicial
26-7 finding of fact and conclusion of law authorized by this subchapter
26-8 is one that is authorized by law to be filed with the secretary of
26-9 state, any person may file a certified copy of the judicial finding
26-10 of fact and conclusion of law in the records of the secretary of
26-11 state, who shall file the certified copy of the finding in the same
26-12 class of records as the subject document or instrument was
26-13 originally filed and index it using the same names that were used
26-14 in indexing the subject document or instrument.
26-15 (b) The secretary of state may charge a filing fee of $15
26-16 for filing a certified copy of a judicial finding of fact and
26-17 conclusion of law under this section.
26-18 SECTION 15. Section 12.013, Property Code, is amended to
26-19 read as follows:
26-20 Sec. 12.013. JUDGMENT. A judgment or an abstract of a
26-21 judgment of a court [in this state] may be recorded if:
26-22 (1) the judgment is of a court:
26-23 (A) expressly created or established under the
26-24 constitution or laws of this state or of the United States;
26-25 (B) that is a court of a foreign country and
26-26 that is recognized by an Act of congress or a treaty or other
26-27 international convention to which the United States is a party; or
27-1 (C) of any other jurisdiction, territory, or
27-2 protectorate entitled to full faith and credit in this state under
27-3 the Constitution of the United States; and
27-4 (2) the judgment is attested under the signature and
27-5 seal of the clerk of the court that rendered the judgment.
27-6 SECTION 16. Subtitle A, Title 2, Civil Practice and Remedies
27-7 Code, is amended by adding Chapter 11 to read as follows:
27-8 CHAPTER 11. LIABILITY RELATED TO A FRAUDULENT COURT
27-9 RECORD OR A FRAUDULENT LIEN OR CLAIM FILED AGAINST REAL
27-10 OR PERSONAL PROPERTY
27-11 Sec. 11.001. DEFINITIONS. In this chapter:
27-12 (1) "Court record" has the meaning assigned by Section
27-13 37.01, Penal Code.
27-14 (2) "Exemplary damages" has the meaning assigned by
27-15 Section 41.001.
27-16 (3) "Lien" means a claim in property for the payment
27-17 of a debt and includes a security interest.
27-18 (4) "Public servant" has the meaning assigned by
27-19 Section 1.07, Penal Code, and includes officers and employees of
27-20 the United States.
27-21 Sec. 11.002. LIABILITY. (a) A person may not make,
27-22 present, or use a document or other record with:
27-23 (1) knowledge that the document or other record is a
27-24 fraudulent court record or a fraudulent lien or claim against real
27-25 or personal property or an interest in real or personal property;
27-26 (2) intent that the document or other record be given
27-27 the same legal effect as a court record or document of a court
28-1 created by or established under the constitution or laws of this
28-2 state or the United States or another entity listed in Section
28-3 37.01, Penal Code, evidencing a valid lien or claim against real or
28-4 personal property or an interest in real or personal property; and
28-5 (3) intent to cause another person to suffer:
28-6 (A) physical injury;
28-7 (B) financial injury; or
28-8 (C) mental anguish or emotional distress.
28-9 (b) A person who violates Subsection (a) is liable to each
28-10 injured person for:
28-11 (1) the greater of:
28-12 (A) $10,000; or
28-13 (B) the actual damages caused by the violation;
28-14 (2) court costs;
28-15 (3) reasonable attorney's fees; and
28-16 (4) exemplary damages in an amount determined by the
28-17 court.
28-18 Sec. 11.003. CAUSE OF ACTION. (a) The following persons
28-19 may bring an action to enjoin violation of this chapter or to
28-20 recover damages under this chapter:
28-21 (1) the attorney general;
28-22 (2) a district attorney;
28-23 (3) a criminal district attorney;
28-24 (4) a county attorney with felony responsibilities;
28-25 (5) a county attorney;
28-26 (6) a municipal attorney;
28-27 (7) in the case of a fraudulent judgment lien, the
29-1 person against whom the judgment is rendered; and
29-2 (8) in the case of a fraudulent lien or claim against
29-3 real or personal property or an interest in real or personal
29-4 property, the obligor or debtor, or a person who owns an interest
29-5 in the real or personal property.
29-6 (b) Notwithstanding any other law, a person or a person
29-7 licensed or regulated by Chapter 9, Insurance Code (the Texas Title
29-8 Insurance Act), does not have a duty to disclose a fraudulent, as
29-9 described by Section 51.901(c), Government Code, court record,
29-10 document, or instrument purporting to create a lien or purporting
29-11 to assert a claim on real property or an interest in real property
29-12 in connection with a sale, conveyance, mortgage, or other transfer
29-13 of the real property or interest in real property.
29-14 (c) Notwithstanding any other law, a purported judgment lien
29-15 or document establishing or purporting to establish a judgment lien
29-16 against property in this state, that is issued or purportedly
29-17 issued by a court or a purported court other than a court
29-18 established under the laws of this state or the United States, is
29-19 void and has no effect in the determination of any title or right
29-20 to the property.
29-21 Sec. 11.004. VENUE. An action under this chapter may be
29-22 brought in any district court in the county in which the recorded
29-23 document is recorded or in which the real property is located.
29-24 Sec. 11.005. FILING FEES. (a) The fee for filing an action
29-25 under this chapter is $15. The plaintiff must pay the fee to the
29-26 clerk of the court in which the action is filed. Except as
29-27 provided by Subsection (b), the plaintiff may not be assessed any
30-1 other fee, cost, charge, or expense by the clerk of the court or
30-2 other public official in connection with the action.
30-3 (b) The fee for service of notice of an action under this
30-4 section charged to the plaintiff may not exceed:
30-5 (1) $20 if the notice is delivered in person; or
30-6 (2) the cost of postage if the service is by
30-7 registered or certified mail.
30-8 (c) A plaintiff who is unable to pay the filing fee and fee
30-9 for service of notice may file with the court an affidavit of
30-10 inability to pay under the Texas Rules of Civil Procedure.
30-11 (d) If the fee imposed under Subsection (a) is less than the
30-12 filing fee the court imposes for filing other similar actions and
30-13 the plaintiff prevails in the action, the court may order a
30-14 defendant to pay to the court the differences between the fee paid
30-15 under Subsection (a) and the filing fee the court imposes for
30-16 filing other similar actions.
30-17 Sec. 11.006. PLAINTIFF'S COSTS. (a) The court shall award
30-18 the plaintiff the costs of bringing the action if:
30-19 (1) the plaintiff prevails; and
30-20 (2) the court finds that the defendant, at the time
30-21 the defendant caused the recorded document to be recorded or filed,
30-22 knew or should have known that the recorded document is fraudulent,
30-23 as described by Section 51.901(c), Government Code.
30-24 (b) For purposes of this section, the costs of bringing the
30-25 action include all court costs, attorney's fees, and related
30-26 expenses of bringing the action, including investigative expenses.
30-27 Sec. 11.007. EFFECT ON OTHER LAW. This law is cumulative of
31-1 other law under which a person may obtain judicial relief with
31-2 respect to a recorded document or other record.
31-3 SECTION 17. Section 9.412(c), Business & Commerce Code, is
31-4 repealed.
31-5 SECTION 18. An action for an order under Subchapter J,
31-6 Chapter 51, Government Code, as added by this Act, may be brought
31-7 with respect to a recorded document or instrument without regard to
31-8 whether the document or instrument was filed before, on, or after
31-9 the effective date of this Act.
31-10 SECTION 19. A clerk must successfully complete one hour of
31-11 continuing education regarding fraudulent court documents and
31-12 fraudulent document filings required by Section 51.605(c),
31-13 Government Code, as amended by this Act, before September 1, 1998.
31-14 SECTION 20. The change in law made by Section 16 of this Act
31-15 applies only to a cause of action that accrues on or after the
31-16 effective date of this Act. A cause of action that accrues before
31-17 the effective date of this Act is governed by the law in effect on
31-18 the date the cause of action accrues, and that law is continued in
31-19 effect for this purpose.
31-20 SECTION 21. (a) The change in law made by this Act applies
31-21 only to a criminal offense committed on or after the effective date
31-22 of this Act. For the purposes of this Act, a criminal offense is
31-23 committed before the effective date of this Act if any element of
31-24 the offense occurs before that date.
31-25 (b) An offense committed before the effective date of this
31-26 Act is covered by the law in effect when the criminal offense was
31-27 committed, and the former law is continued in effect for this
32-1 purpose.
32-2 SECTION 22. The importance of this legislation and the
32-3 crowded condition of the calendars in both houses create an
32-4 emergency and an imperative public necessity that the
32-5 constitutional rule requiring bills to be read on three several
32-6 days in each house be suspended, and this rule is hereby suspended,
32-7 and that this Act take effect and be in force from and after its
32-8 passage, and it is so enacted.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1185 was passed by the House on March
13, 1997, by the following vote: Yeas 142, Nays 0, 1 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 1185 on April 7, 1997, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 1185 on May 8, 1997, by the following vote: Yeas 145,
Nays 0, 1 present, not voting.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1185 was passed by the Senate, with
amendments, on April 3, 1997, by the following vote: Yeas 31, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
1185 on May 10, 1997, by the following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor