By Hightower H.B. No. 1185
75R5517 DLF-F
A BILL TO BE ENTITLED
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. Section 32.46, Penal Code, is amended to read as
1-7 follows:
1-8 Sec. 32.46. SECURING EXECUTION OF DOCUMENT BY DECEPTION.
1-9 (a) A person commits an offense if, with intent to defraud or harm
1-10 any person, he, by deception:
1-11 (1) [,] causes another to sign or execute any document
1-12 affecting property or service or the pecuniary interest of any
1-13 person; or
1-14 (2) causes or induces a public servant to file or
1-15 record any purported judgment or other document purporting to
1-16 memorialize or evidence an act, an order, a directive, or process
1-17 of:
1-18 (A) a purported court that is not expressly
1-19 created or established under the constitution or the laws of this
1-20 state or of the United States;
1-21 (B) a purported judicial entity that is not
1-22 expressly created or established under the constitution or laws of
1-23 this state or of the United States; or
1-24 (C) a purported judicial officer of a purported
2-1 court or purported judicial entity described by Paragraph (A) or
2-2 (B).
2-3 (b) An offense under Subsection (a)(1) [this section] is a:
2-4 (1) Class C misdemeanor if the value of the property,
2-5 service, or pecuniary interest is less than $20;
2-6 (2) Class B misdemeanor if the value of the property,
2-7 service, or pecuniary interest is $20 or more but less than $500;
2-8 (3) Class A misdemeanor if the value of the property,
2-9 service, or pecuniary interest is $500 or more but less than
2-10 $1,500;
2-11 (4) state jail felony if the value of the property,
2-12 service, or pecuniary interest is $1,500 or more but less than
2-13 $20,000;
2-14 (5) felony of the third degree if the value of the
2-15 property, service, or pecuniary interest is $20,000 or more but
2-16 less than $100,000;
2-17 (6) felony of the second degree if the value of the
2-18 property, service, or pecuniary interest is $100,000 or more but
2-19 less than $200,000; or
2-20 (7) felony of the first degree if the value of the
2-21 property, service, or pecuniary interest is $200,000 or more.
2-22 (c) An offense under Subsection(a)(2) is a state jail
2-23 felony.
2-24 (d) In this section, "deception" has the meaning assigned by
2-25 Section 31.01.
2-26 SECTION 2. Subchapter D, Chapter 32, Penal Code, is amended
2-27 by adding Section 32.48 to read as follows:
3-1 Sec. 32.48. SIMULATING LEGAL PROCESS. (a) A person commits
3-2 an offense if the person recklessly delivers to another any
3-3 document that simulates a summons, complaint, judgment, or other
3-4 court process with the intent to:
3-5 (1) induce payment of a claim; or
3-6 (2) cause another to:
3-7 (A) submit to the putative authority of the
3-8 document; or
3-9 (B) take any action or refrain from taking any
3-10 action in response to the document, in compliance with the
3-11 document, or on the basis of the document.
3-12 (b) Proof that the document was mailed or was delivered to
3-13 any person with the intent that it be forwarded to the intended
3-14 recipient is a sufficient showing that the document was delivered.
3-15 (c) It is not a defense to prosecution under this section
3-16 that the simulating document:
3-17 (1) states that it is not legal process; or
3-18 (2) purports to have been issued or authorized by a
3-19 person or entity who did not have lawful authority to issue or
3-20 authorize the document.
3-21 (d) If it is shown on the trial of an offense under this
3-22 section that the simulating document was filed with, presented to,
3-23 or delivered to a clerk of a court or an employee of a clerk of a
3-24 court created or established under the constitution or laws of this
3-25 state, there is a rebuttable presumption that the document was
3-26 delivered with the intent described by Subsection (a).
3-27 (e) Except as provided by Subsection (f), an offense under
4-1 this section is a Class A misdemeanor.
4-2 (f) If it is shown on the trial of an offense under this
4-3 section that the defendant has previously been convicted of a
4-4 violation of this section, the offense is a state jail felony.
4-5 SECTION 3. Subchapter D, Chapter 32, Penal Code, is amended
4-6 by adding Section 32.49 to read as follows:
4-7 Sec. 32.49. FAILURE TO EXECUTE RELEASE OF FRAUDULENT LIEN OR
4-8 CLAIM. (a) A person commits an offense if, with intent to defraud
4-9 or harm another, the person:
4-10 (1) owns, holds, or is the beneficiary of a purported
4-11 lien or claim asserted against real or personal property or an
4-12 interest in real or personal property that is fraudulent, as
4-13 described by Section 51.901, Government Code; and
4-14 (2) refuses to execute a release of the fraudulent
4-15 lien or claim on request of:
4-16 (A) the obligor or debtor; or
4-17 (B) any person who owns any interest in the real
4-18 or personal property described in the document or instrument that
4-19 is the basis for the lien or claim.
4-20 (b) An offense under this section is a Class A misdemeanor.
4-21 SECTION 4. Section 37.01, Penal Code, is amended to read as
4-22 follows:
4-23 Sec. 37.01. DEFINITIONS. In this chapter:
4-24 (1) "Court record" means a decree, judgment, order,
4-25 subpoena, warrant, or other document issued by a court of:
4-26 (A) this state;
4-27 (B) another state;
5-1 (C) the United States;
5-2 (D) a foreign country recognized by an act of
5-3 congress or a treaty or other international convention to which the
5-4 United States is a party;
5-5 (E) an Indian tribe recognized by the United
5-6 States; or
5-7 (F) any other jurisdiction, territory, or
5-8 protectorate entitled to full faith and credit in this state under
5-9 the United States Constitution.
5-10 (2) "Governmental record" means:
5-11 (A) anything belonging to, received by, or kept
5-12 by government for information, including a court record;
5-13 (B) anything required by law to be kept by
5-14 others for information of government; or
5-15 (C) a license, certificate, permit, seal, title,
5-16 letter of patent, or similar document issued by government.
5-17 (3) [(2)] "Statement" means any representation of
5-18 fact.
5-19 SECTION 5. Section 37.10, Penal Code, is amended by amending
5-20 Subsection (d) and adding Subsection (h) to read as follows:
5-21 (d) An offense under this section is a felony of the third
5-22 degree if it is shown on the trial of the offense that the
5-23 governmental record was a license, certificate, permit, seal,
5-24 title, letter of patent, or similar document issued by government,
5-25 unless the actor's intent is to defraud or harm another, in which
5-26 event the offense is a felony of the second degree.
5-27 (h) If conduct that constitutes an offense under this
6-1 section also constitutes an offense under Section 32.48 or 37.13,
6-2 the actor may be prosecuted under any of those sections.
6-3 SECTION 6. Section 37.11, Penal Code, is amended to read as
6-4 follows:
6-5 Sec. 37.11. IMPERSONATING PUBLIC SERVANT. (a) A person
6-6 commits an offense if he:
6-7 (1) impersonates a public servant with intent to
6-8 induce another to submit to his pretended official authority or to
6-9 rely on his pretended official acts; or
6-10 (2) knowingly exercises any function of a public
6-11 servant or of a public office, including that of a judge and
6-12 court, and the position or office through which he purports to
6-13 exercise a function of a public servant or public office has no
6-14 lawful existence under the constitution or laws of this state or of
6-15 the United States.
6-16 (b) An offense under this section is [a Class A misdemeanor
6-17 unless the person impersonated a peace officer, in which event it
6-18 is] a felony of the third degree.
6-19 SECTION 7. Chapter 37, Penal Code, is amended by adding
6-20 Section 37.13 to read as follows:
6-21 Sec. 37.13. FRAUDULENT COURT RECORD. (a) A person commits
6-22 an offense if the person makes, presents, or uses any document or
6-23 other record with:
6-24 (1) knowledge that the document or other record is not
6-25 a genuine court record; and
6-26 (2) the intent that the document or other record be
6-27 given the same legal effect as a genuine court record.
7-1 (b) An offense under this section is a Class B misdemeanor.
7-2 (c) If conduct that constitutes an offense under this
7-3 section also constitutes an offense under Section 32.48 or 37.10,
7-4 the actor may be prosecuted under any of those sections.
7-5 SECTION 8. Section 71.02(a), Penal Code, is amended to read
7-6 as follows:
7-7 (a) A person commits an offense if, with the intent to
7-8 establish, maintain, or participate in a combination or in the
7-9 profits of a combination or as a member of a criminal street gang,
7-10 he commits or conspires to commit one or more of the following:
7-11 (1) murder, capital murder, arson, aggravated robbery,
7-12 robbery, burglary, theft, aggravated kidnapping, kidnapping,
7-13 aggravated assault, aggravated sexual assault, sexual assault,
7-14 forgery, deadly conduct, assault punishable as a Class A
7-15 misdemeanor, burglary of a motor vehicle, or unauthorized use of a
7-16 motor vehicle;
7-17 (2) any gambling offense punishable as a Class A
7-18 misdemeanor;
7-19 (3) promotion of prostitution, aggravated promotion of
7-20 prostitution, or compelling prostitution;
7-21 (4) unlawful manufacture, transportation, repair, or
7-22 sale of firearms or prohibited weapons;
7-23 (5) unlawful manufacture, delivery, dispensation, or
7-24 distribution of a controlled substance or dangerous drug, or
7-25 unlawful possession of a controlled substance or dangerous drug
7-26 through forgery, fraud, misrepresentation, or deception;
7-27 (6) any unlawful wholesale promotion or possession of
8-1 any obscene material or obscene device with the intent to wholesale
8-2 promote the same;
8-3 (7) any unlawful employment, authorization, or
8-4 inducing of a child younger than 17 years of age in an obscene
8-5 sexual performance;
8-6 (8) any felony offense under Chapter 32, Penal Code;
8-7 (9) any offense under Chapter 36, Penal Code; [or]
8-8 (10) any offense under Chapter 34, Penal Code; or
8-9 (11) any offense under Section 37.11(a), Penal Code.
8-10 SECTION 9. Chapter 37, Penal Code, is amended by adding
8-11 Section 37.101 to read as follows:
8-12 Sec. 37.101. FRAUDULENT FILING OF FINANCING STATEMENT. (a)
8-13 A person commits an offense if the person knowingly presents for
8-14 filing or causes to be presented for filing a financing statement
8-15 that the person knows:
8-16 (1) is forged;
8-17 (2) contains a material false statement; or
8-18 (3) is groundless.
8-19 (b) An offense under Subsection (a)(1) is a felony of the
8-20 third degree, unless the person commits the offense with the intent
8-21 to defraud or harm another, in which event the offense is a felony
8-22 of the second degree. An offense under Subsection (a)(2) or (a)(3)
8-23 is a Class A misdemeanor, unless the person commits the offense
8-24 with the intent to defraud or harm another, in which event the
8-25 offense is a state jail felony.
8-26 SECTION 10. Chapter 1, Code of Criminal Procedure, is
8-27 amended by adding Article 1.052 to read as follows:
9-1 Art. 1.052. SIGNED PLEADINGS OF DEFENDANT. (a) A pleading,
9-2 motion, and other paper filed for or on behalf of a defendant
9-3 represented by an attorney must be signed by at least one attorney
9-4 of record in the attorney's name and state the attorney's address.
9-5 A defendant who is not represented by an attorney must sign any
9-6 pleading, motion, or other paper filed for or on the defendant's
9-7 behalf and state the defendant's address.
9-8 (b) The signature of an attorney or a defendant constitutes
9-9 a certificate by the attorney or defendant that the person has read
9-10 the pleading, motion, or other paper and that to the best of the
9-11 person's knowledge, information, and belief formed after reasonable
9-12 inquiry that the instrument is not groundless and brought in bad
9-13 faith or groundless and brought for harassment, unnecessary delay,
9-14 or other improper purpose.
9-15 (c) If a pleading, motion, or other paper is not signed, the
9-16 court shall strike it unless it is signed promptly after the
9-17 omission is called to the attention of the attorney or defendant.
9-18 (d) An attorney or defendant who files a fictitious pleading
9-19 in a cause for an improper purpose described by Subsection (b) or
9-20 who makes a statement in a pleading that the attorney or defendant
9-21 knows to be groundless and false to obtain a delay of the trial of
9-22 the cause or for the purpose of harassment shall be held guilty of
9-23 contempt.
9-24 (e) If a pleading, motion, or other paper is signed in
9-25 violation of this article, the court, on motion or on its own
9-26 initiative, after notice and hearing, shall impose an appropriate
9-27 sanction, which may include an order to pay to the other party or
10-1 parties to the prosecution or to the general fund of the county in
10-2 which the pleading, motion, or other paper was filed the amount of
10-3 reasonable expenses incurred because of the filing of the pleading,
10-4 motion, or other paper, including reasonable attorney's fees.
10-5 (f) A court shall presume that a pleading, motion, or other
10-6 paper is filed in good faith. Sanctions under this article may not
10-7 be imposed except for good cause stated in the sanction order.
10-8 (g) A plea of "not guilty" or "no contest" or "nolo
10-9 contendere" does not constitute a violation of this article. An
10-10 allegation that an event took place or occurred on or about a
10-11 particular date does not constitute a violation of this article.
10-12 (h) In this article, "groundless" means without basis in law
10-13 or fact and not warranted by a good faith argument for the
10-14 extension, modification, or reversal of existing law.
10-15 SECTION 11. Chapter 13, Code of Criminal Procedure, is
10-16 amended by adding Article 13.26 to read as follows:
10-17 Art. 13.26. SIMULATING LEGAL PROCESS. An offense under
10-18 Section 32.48, Penal Code, may be prosecuted either in the county
10-19 from which the document was sent or in the county in which it was
10-20 delivered.
10-21 SECTION 12. Section 192.004, Local Government Code, is
10-22 amended to read as follows:
10-23 Sec. 192.004. LIEN INSTRUMENTS. Except as provided by
10-24 Subchapter J, Chapter 51, Government Code, the [The] county clerk
10-25 shall record separately from a deed or other conveyance each deed
10-26 of trust, mortgage, or judgment that is required to be recorded to
10-27 create a judgment lien and every other instrument that is intended
11-1 to create a lien.
11-2 SECTION 13. Section 51.605(c), Government Code, is amended
11-3 to read as follows:
11-4 (c) A clerk must successfully complete 20 hours of
11-5 continuing education courses in the performance of the duties of
11-6 office at least one time in each 24-month period. The 20 hours of
11-7 required continuing education courses must include at least one
11-8 hour of continuing education regarding fraudulent court documents
11-9 and fraudulent document filings.
11-10 SECTION 14. Chapter 51, Government Code, is amended by
11-11 adding Subchapter J to read as follows:
11-12 SUBCHAPTER J. CERTAIN FRAUDULENT RECORDS OR DOCUMENTS
11-13 Sec. 51.901. FRAUDULENT DOCUMENT OR INSTRUMENT. (a) If a
11-14 clerk of the supreme court, clerk of the court of criminal appeals,
11-15 clerk of a court of appeals, district clerk, county clerk, or
11-16 municipal clerk has reason to believe that a document or instrument
11-17 previously filed or recorded or offered or submitted for filing or
11-18 for filing and recording is fraudulent, the clerk shall:
11-19 (1) if the document is a purported judgment or other
11-20 document purporting to memorialize or evidence an act, an order, a
11-21 directive, or process of a purported court, provide written notice
11-22 of the filing, recording, or submission for filing or for filing
11-23 and recording to the stated or last known address of the person
11-24 against whom the purported judgment, act, order, directive, or
11-25 process is rendered; or
11-26 (2) if the document or instrument purports to create a
11-27 lien or assert a claim on real property or an interest in real
12-1 property, provide written notice of the filing, recording, or
12-2 submission for filing or for filing and recording to the stated or
12-3 last known address of the person named in the document or
12-4 instrument as the obligor or debtor and to any person who owns any
12-5 interest in the real property described in the document or
12-6 instrument.
12-7 (b) A clerk shall provide written notice under Subsection
12-8 (a):
12-9 (1) not later than the second business day after the
12-10 date that the document or instrument is offered or submitted for
12-11 filing or for filing and recording; or
12-12 (2) if the document or instrument has been previously
12-13 filed or recorded, not later than the second business day after the
12-14 date that the clerk becomes aware that the document or instrument
12-15 is fraudulent.
12-16 (c) For purposes of this section, a document or instrument
12-17 is presumed to be fraudulent if:
12-18 (1) the document is a purported judgment or other
12-19 document purporting to memorialize or evidence an act, an order, a
12-20 directive, or process of:
12-21 (A) a purported court or a purported judicial
12-22 entity not expressly created or established under the constitution
12-23 or the laws of this state or of the United States; or
12-24 (B) a purported judicial officer of a purported
12-25 court or purported judicial entity described by Paragraph (A); or
12-26 (2) the document or instrument purports to create a
12-27 lien or assert a claim against real or personal property or an
13-1 interest in real or personal property and:
13-2 (A) is not a document or instrument provided for
13-3 by the constitution or laws of this state or of the United States;
13-4 (B) is not created by implied consent or express
13-5 consent as evidenced by the originally signed and attested or
13-6 acknowledged signature of the obligor, debtor, or the owner of an
13-7 interest in the real property, if required under the laws of this
13-8 state, or by consent of an agent, fiduciary, or other
13-9 representative of that person; or
13-10 (C) is not an equitable, constructive, or other
13-11 lien imposed by a court with jurisdiction created or established
13-12 under the constitution or laws of this state or of the United
13-13 States.
13-14 Sec. 51.902. ACTION ON FRAUDULENT JUDGMENT LIEN. (a) A
13-15 person against whom a purported judgment was rendered who has
13-16 reason to believe that a document previously filed or recorded or
13-17 submitted for filing or for filing and recording is fraudulent may
13-18 complete and file with the district clerk a motion that contains,
13-19 at a minimum, the information in the following suggested form:
13-20 MISC. DOCKET NO. __________
13-21 In Re: A Purported In the _______ Judicial District
13-22 Judgment Lien Against In and For _____________________
13-23 (Name of Purported County, Texas
13-24 Debtor)
13-25 Motion for Judicial Review of a Document Purporting to
13-26 Create a Judgment Lien
13-27 Now Comes (name) and files this motion requesting a judicial
14-1 determination of the status of a court, judicial entity, or
14-2 judicial officer purporting to have taken an action that is the
14-3 basis of a judgment lien filed in the office of said clerk, and in
14-4 support of the motion would show the court as follows:
14-5 I.
14-6 (Name), movant herein, is the person against whom the
14-7 purported judgment was rendered.
14-8 II.
14-9 On (date), in the exercise of the county clerk's official
14-10 duties as County Clerk of (county name) County, Texas, the county
14-11 clerk received and filed or filed and recorded the document
14-12 attached hereto and containing (number) pages. Said document
14-13 purports to have been rendered on the basis of a judgment, act,
14-14 order, directive, or process of a court, judicial entity, or
14-15 judicial officer called therein "(name of purported court, judicial
14-16 entity, or judicial officer)" against one (name of purported
14-17 debtor).
14-18 III.
14-19 Movant alleges that the purported court, judicial entity, or
14-20 judicial officer referred to in the attached document is one
14-21 described in Section 51.901(c)(1), Government Code, as not legally
14-22 created or established under the constitution or laws of this state
14-23 or of the United States, and that the document should therefore not
14-24 be accorded lien status.
14-25 PRAYER
14-26 Movant requests the court to review the attached document and
14-27 enter an order determining whether it should be accorded lien
15-1 status, together with such other orders as the court deems
15-2 appropriate.
15-3 Respectfully submitted,
15-4 _________________________
15-5 (Signature and typed name
15-6 and address)
15-7 (b) A motion filed under this section may be ruled on by a
15-8 district judge having jurisdiction over real property matters in
15-9 the county in which the subject document was filed. The court's
15-10 finding may be made solely on a review of the documents attached to
15-11 the movant's motion and without hearing any testimonial evidence.
15-12 The court's review may be made ex parte without delay or notice of
15-13 any kind. The court's ruling on the motion, in the nature of a
15-14 finding of fact and a conclusion of law, is unappealable if it is
15-15 substantially similar to the form suggested in Subsection (f).
15-16 (c) The district clerk may not collect a filing fee for
15-17 filing a motion under this section.
15-18 (d) After reviewing the documents attached to a motion under
15-19 this section, the district judge shall enter an appropriate finding
15-20 of fact and conclusion of law, which must be filed and indexed in
15-21 the same class of records, in which the subject document was
15-22 originally filed.
15-23 (e) The county clerk may not collect a filing fee for filing
15-24 a district judge's finding of fact and conclusion of law under this
15-25 section.
15-26 (f) A suggested form order appropriate to comply with this
15-27 section is as follows:
16-1 MISC. DOCKET NO. __________
16-2 In Re: A Purported In the _______ Judicial District
16-3 Judgment Lien Against In and For _____________________
16-4 (Name of Purported County, Texas
16-5 Debtor)
16-6 Judicial Finding of Fact and Conclusion of Law
16-7 Regarding a Document Purporting to Create a Judgment Lien
16-8 On the (number) day of (month), (year), in the above entitled
16-9 and numbered cause, this court reviewed a motion of (name) and the
16-10 documents attached thereto. No testimony was taken from any party,
16-11 nor was there any notice of the court's review, the court having
16-12 made the determination that a decision could be made solely on
16-13 review of the document under the authority vested in the court
16-14 under Subchapter J, Chapter 51, Government Code.
16-15 The court finds as follows (only an item checked and
16-16 initialed is a valid court ruling):
16-17 ______ The document attached to the motion herein refers to a
16-18 legally constituted court, judicial entity, or judicial officer and
16-19 may be recorded.
16-20 ______ The document attached to the motion herein DOES NOT refer
16-21 to a legally constituted court, judicial entity, or judicial
16-22 officer and MAY NOT be recorded. There is no valid judgment lien
16-23 created by the document.
16-24 This court makes no finding as to any underlying claim of the
16-25 parties involved and expressly limits its finding and conclusion in
16-26 the same class of records as the subject document was originally
16-27 filed and directs the county clerk to index it using the same names
17-1 as were used in indexing the subject document.
17-2 SIGNED ON THIS THE ________ DAY OF _________________________.
17-3 _________________________________
17-4 DISTRICT JUDGE
17-5 ________ JUDICIAL DISTRICT
17-6 ___________________ COUNTY, TEXAS
17-7 Sec. 51.903. ACTION ON FRAUDULENT LIEN ON PROPERTY. (a) A
17-8 person who is the purported debtor or obligor or who owns real or
17-9 personal property or an interest in real or personal property and
17-10 who has reason to believe that the document purporting to create a
17-11 lien or a claim against the real or personal property or an
17-12 interest in the real or personal property previously filed or
17-13 submitted for filing and recording is fraudulent may complete and
17-14 file with the district clerk a motion that contains, at a minimum,
17-15 the information in the following suggested form:
17-16 MISC. DOCKET NO. __________
17-17 In Re: A Purported In the _______ Judicial District
17-18 Lien or Claim Against In and For _____________________
17-19 (Name of Purported County, Texas
17-20 Debtor)
17-21 Motion for Judicial Review of Document or Instrument Purporting
17-22 to Create a Lien or Claim
17-23 Now Comes (name) and files this motion requesting a judicial
17-24 determination of the status of a document or instrument purporting
17-25 to create a lien or claim on real or personal property or an
17-26 interest in real or personal property filed in the office of the
17-27 Clerk of (county name) County, Texas, and in support of the motion
18-1 would show the court as follows:
18-2 I.
18-3 (Name), movant herein, is the purported obligor or debtor or
18-4 person who owns the real or personal property or the interest in
18-5 real or personal property described in the document or instrument.
18-6 II.
18-7 On (date), in the exercise of the county clerk's official
18-8 duties as County Clerk of (county name) County, Texas, the county
18-9 clerk received and filed and recorded the document attached hereto
18-10 and containing (number) pages. Said document purports to have
18-11 created a lien on real or personal property or an interest in real
18-12 or personal property against one (name of purported debtor).
18-13 III.
18-14 Movant alleges that the document is fraudulent, as described
18-15 by Section 51.901(c), Government Code, and that the document should
18-16 therefore not be accorded lien status.
18-17 PRAYER
18-18 Movant requests the court to review the attached document and
18-19 enter an order determining whether it should be accorded lien
18-20 status, together with such other orders as the court deems
18-21 appropriate.
18-22 Respectfully submitted,
18-23 _________________________
18-24 (Signature and typed name
18-25 and address)
18-26 (b) A motion under this section may be ruled on by a
18-27 district judge having jurisdiction over real property matters in
19-1 the county in which the subject document was filed. The court's
19-2 finding may be made solely on a review of the documents attached to
19-3 the motion and without hearing any testimonial evidence. The
19-4 court's review may be made ex parte without delay or notice of any
19-5 kind.
19-6 (c) The district clerk may not collect a filing fee for
19-7 filing a motion under this section.
19-8 (d) After reviewing the documents attached to a motion under
19-9 this section, the district judge shall enter an appropriate finding
19-10 of fact and conclusion of law, which must be filed and indexed in
19-11 the same class of records in which the subject document or
19-12 instrument was originally filed.
19-13 (e) The county clerk may not collect a filing fee for filing
19-14 a district judge's finding of fact and conclusion of law under this
19-15 section.
19-16 (f) A suggested form order appropriate to comply with this
19-17 section is as follows:
19-18 MISC. DOCKET NO. __________
19-19 In Re: A Purported In the _______ Judicial District
19-20 Lien or Claim Against In and For _____________________
19-21 (Name of Purported County, Texas
19-22 Debtor)
19-23 Judicial Finding of Fact and Conclusion of Law Regarding a
19-24 Document or Instrument Purporting to Create a Lien or Claim
19-25 On the (number) day of (month), (year), in the above entitled
19-26 and numbered cause, this court reviewed a motion of (name) and the
19-27 documents attached thereto. No testimony was taken from any party,
20-1 nor was there any notice of the court's review, the court having
20-2 made the determination that a decision could be made solely on
20-3 review of the document or instrument under the authority vested in
20-4 the court under Subchapter J, Chapter 51, Government Code.
20-5 The court finds as follows (only an item checked and
20-6 initialed is a valid court ruling):
20-7 _______ The document or instrument attached to the motion herein
20-8 IS asserted against real or personal property or an interest in
20-9 real or personal property and:
20-10 (1) IS provided for by specific state or federal
20-11 statutes or constitutional provisions;
20-12 (2) IS created by implied consent or express consent
20-13 as evidenced by the originally signed and attested or acknowledged
20-14 signature of the obligor, debtor, or the owner of the real or
20-15 personal property or an interest in the real or personal property,
20-16 if required under the laws of this state, or by consent of an
20-17 agent, fiduciary, or other representative of that person; or
20-18 (3) IS an equitable, constructive, or other lien
20-19 imposed by a court with jurisdiction.
20-20 This document may be filed and recorded.
20-21 _______ The document or instrument attached to the motion herein:
20-22 (1) IS NOT provided for by specific state or federal
20-23 statutes or constitutional provisions;
20-24 (2) IS NOT created by implied consent or express
20-25 consent as evidenced by the originally signed and attested or
20-26 acknowledged signature of the obligor, debtor, or the owner of the
20-27 real or personal property or an interest in the real or personal
21-1 property, if required under the law of this state or by consent of
21-2 an agent, fiduciary, or other representative of that person;
21-3 (3) IS NOT an equitable, constructive, or other lien
21-4 imposed by a court with jurisdiction; or
21-5 (4) IS NOT asserted against real or personal property
21-6 or an interest in real or personal property.
21-7 There is no valid lien or claim created by this document or
21-8 instrument.
21-9 This court makes no finding as to any underlying claim of the
21-10 parties involved, and expressly limits its finding and conclusion
21-11 in the same class of records as the subject document or instrument
21-12 was originally filed, and directs the county clerk to index it
21-13 using the same names as were used in indexing the subject document
21-14 or instrument.
21-15 SIGNED ON THIS THE ________ DAY OF _________________________.
21-16 _________________________________
21-17 DISTRICT JUDGE
21-18 ________ JUDICIAL DISTRICT
21-19 ___________________ COUNTY, TEXAS
21-20 Sec. 51.904. WARNING SIGN. A clerk described by Section
21-21 51.901(a) shall post a sign, in letters at least one inch in
21-22 height, that is clearly visible to the general public in or near
21-23 the clerk's office stating that it is a crime to file a fraudulent
21-24 court record or a fraudulent instrument with the clerk.
21-25 Sec. 51.905. DOCUMENTS FILED WITH SECRETARY OF STATE.
21-26 (a) If the lien or other claim that is the subject of a judicial
21-27 finding of fact and conclusion of law authorized by this subchapter
22-1 is one that is authorized by law to be filed with the secretary of
22-2 state, any person may file a certified copy of the judicial finding
22-3 of fact and conclusion of law in the records of the secretary of
22-4 state, who shall file the certified copy of the finding in the same
22-5 class of records as the subject document or instrument was
22-6 originally filed and index it using the same names that were used
22-7 in indexing the subject document or instrument.
22-8 (b) The secretary of state may charge a filing fee of $15
22-9 for filing a certified copy of a judicial finding of fact and
22-10 conclusion of law under this section.
22-11 SECTION 15. Section 12.013, Property Code, is amended to
22-12 read as follows:
22-13 Sec. 12.013. JUDGMENT. A judgment or an abstract of a
22-14 judgment of a court [in this state] may be recorded if:
22-15 (1) the judgment is of a court:
22-16 (A) expressly created or established under the
22-17 constitution or laws of this state or of the United States;
22-18 (B) that is a court of a foreign country and
22-19 that is recognized by an Act of congress or a treaty or other
22-20 international convention to which the United States is a party; or
22-21 (C) of any other jurisdiction, territory, or
22-22 protectorate entitled to full faith and credit in this state under
22-23 the Constitution of the United States; and
22-24 (2) the judgment is attested under the signature and
22-25 seal of the clerk of the court that rendered the judgment.
22-26 SECTION 16. Subtitle A, Title 2, Civil Practice and Remedies
22-27 Code, is amended by adding Chapter 11 to read as follows:
23-1 CHAPTER 11. LIABILITY RELATED TO A FRAUDULENT COURT
23-2 RECORD OR A FRAUDULENT LIEN OR CLAIM FILED AGAINST REAL
23-3 OR PERSONAL PROPERTY
23-4 Sec. 11.001. DEFINITIONS. In this chapter:
23-5 (1) "Court record" has the meaning assigned by Section
23-6 37.01, Penal Code.
23-7 (2) "Exemplary damages" has the meaning assigned by
23-8 Section 41.001.
23-9 (3) "Lien" means a claim in property for the payment
23-10 of a debt and includes a security interest.
23-11 (4) "Public servant" has the meaning assigned by
23-12 Section 1.07, Penal Code, and includes officers and employees of
23-13 the United States.
23-14 Sec. 11.002. LIABILITY. (a) A person may not make,
23-15 present, or use a document or other record with:
23-16 (1) knowledge that the document or other record is a
23-17 fraudulent court record or a fraudulent lien or claim against real
23-18 or personal property or an interest in real or personal property;
23-19 (2) the intent that the document or other record be
23-20 given the same legal effect as a genuine court record or document
23-21 evidencing a valid lien or claim against real or personal property
23-22 or an interest in real or personal property; and
23-23 (3) the intent to cause another person to suffer:
23-24 (A) physical injury;
23-25 (B) financial injury; or
23-26 (C) mental anguish or emotional distress.
23-27 (b) A person who violates Subsection (a) is liable to each
24-1 injured person for:
24-2 (1) the greater of:
24-3 (A) $10,000; or
24-4 (B) the actual damages caused by the violation;
24-5 (2) court costs;
24-6 (3) reasonable attorney's fees; and
24-7 (4) exemplary damages in an amount determined by the
24-8 court.
24-9 Sec. 11.003. CAUSE OF ACTION. (a) The following persons
24-10 may bring an action to enjoin violation of this chapter or to
24-11 recover damages under this chapter:
24-12 (1) the attorney general;
24-13 (2) a district attorney;
24-14 (3) a criminal district attorney;
24-15 (4) a county attorney with felony responsibilities;
24-16 (5) a county attorney;
24-17 (6) a municipal attorney;
24-18 (7) in the case of a fraudulent judgment lien, the
24-19 person against whom the judgment is rendered; and
24-20 (8) in the case of a fraudulent lien or claim against
24-21 real or personal property or an interest in real or personal
24-22 property, the obligor or debtor, or a person who owns an interest
24-23 in the real or personal property.
24-24 (b) Notwithstanding any other law, a person does not have a
24-25 duty to disclose a fraudulent court record, document, or instrument
24-26 purporting to create a lien or purporting to assert a claim on real
24-27 property or an interest in real property in connection with a sale,
25-1 conveyance, mortgage, or other transfer of the real property or
25-2 interest in real property.
25-3 Sec. 11.004. VENUE. An action under this chapter may be
25-4 brought in any district court in the county in which the recorded
25-5 document is recorded or in which the real property is located.
25-6 Sec. 11.005. FILING FEES. (a) The fee for filing an action
25-7 under this chapter is $15. The plaintiff must pay the fee to the
25-8 clerk of the court in which the action is filed. Except as
25-9 provided by Subsection (b), the plaintiff may not be assessed any
25-10 other fee, cost, charge, or expense by the clerk of the court or
25-11 other public official in connection with the action.
25-12 (b) The fee for service of notice of an action under this
25-13 section charged to the plaintiff may not exceed:
25-14 (1) $20 if the notice is delivered in person; or
25-15 (2) the cost of postage if the service is by
25-16 registered or certified mail.
25-17 (c) A plaintiff who is unable to pay the filing fee and fee
25-18 for service of notice may file with the court an affidavit of
25-19 inability to pay under the Texas Rules of Civil Procedure.
25-20 (d) If the fee imposed under Subsection (a) is less than the
25-21 filing fee the court imposes for filing other similar actions and
25-22 the plaintiff prevails in the action, the court may order a
25-23 defendant to pay to the court the differences between the fee paid
25-24 under Subsection (a) and the filing fee the court imposes for
25-25 filing other similar actions.
25-26 Sec. 11.006. PLAINTIFF'S COSTS. (a) The court shall award
25-27 the plaintiff the costs of bringing the action if:
26-1 (1) the plaintiff prevails; and
26-2 (2) the court finds that the defendant, at the time
26-3 the defendant caused the recorded document to be recorded or filed,
26-4 knew or should have known that the recorded document is fraudulent,
26-5 as described by Section 51.901, Government Code.
26-6 (b) For purposes of this section, the costs of bringing the
26-7 action include all court costs, attorney's fees, and related
26-8 expenses of bringing the action, including investigative expenses.
26-9 Sec. 11.007. EFFECT ON OTHER LAW. This law is cumulative of
26-10 other law under which a person may obtain judicial relief with
26-11 respect to a recorded document or other record.
26-12 SECTION 17. Section 9.412(c), Business & Commerce Code, is
26-13 repealed.
26-14 SECTION 18. An action for an order under Subchapter J,
26-15 Chapter 51, Government Code, as added by this Act, may be brought
26-16 with respect to a recorded document without regard to whether the
26-17 document was filed before, on, or after the effective date of this
26-18 Act.
26-19 SECTION 19. The change in law made by Section 16 of this Act
26-20 applies only to a cause of action that accrues on or after the
26-21 effective date of this Act. A cause of action that accrues before
26-22 the effective date of this Act is governed by the law in effect on
26-23 the date the cause of action accrues, and that law is continued in
26-24 effect for this purpose.
26-25 SECTION 20. (a) The change in law made by this Act applies
26-26 only to a criminal offense committed on or after the effective date
26-27 of this Act. For the purposes of this Act, a criminal offense is
27-1 committed before the effective date of this Act if any element of
27-2 the offense occurs before that date.
27-3 (b) An offense committed before the effective date of this
27-4 Act is covered by the law in effect when the criminal offense was
27-5 committed, and the former law is continued in effect for this
27-6 purpose.
27-7 SECTION 21. The importance of this legislation and the
27-8 crowded condition of the calendars in both houses create an
27-9 emergency and an imperative public necessity that the
27-10 constitutional rule requiring bills to be read on three several
27-11 days in each house be suspended, and this rule is hereby suspended,
27-12 and that this Act take effect and be in force from and after its
27-13 passage, and it is so enacted.