1-1 By: Hightower, Allen, et al. H.B. No. 1185
1-2 (Senate Sponsor -Armbrister)
1-3 (In the Senate - Received from the House March 17, 1997;
1-4 March 18, 1997, read first time and referred to Committee on
1-5 Jurisprudence; March 26, 1997, reported favorably, as amended, by
1-6 the following vote: Yeas 6, Nays 0; March 26, 1997, sent to
1-7 printer.)
1-8 COMMITTEE AMENDMENT NO. 1 By: Ogden
1-9 Amend H.B. 1185 as follows:
1-10 On page 3 of the bill, line 54, strike the words "felony of
1-11 the third degree" and substitute "state jail felony".
1-12 A BILL TO BE ENTITLED
1-13 AN ACT
1-14 relating to the fraudulent exercise of certain governmental
1-15 functions and the fraudulent creation or use of certain pleadings,
1-16 governmental documents, and records; providing penalties.
1-17 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-18 SECTION 1. Sections 32.21(e) and (f), Penal Code, are
1-19 amended to read as follows:
1-20 (e) An offense under this section is a felony of the third
1-21 degree if the writing is or purports to be:
1-22 (1) part of an issue of money, securities, postage or
1-23 revenue stamps;
1-24 (2) a government record listed in Section 37.01(2)(C)
1-25 [37.01(1)(C)]; or
1-26 (3) other instruments issued by a state or national
1-27 government or by a subdivision of either, or part of an issue of
1-28 stock, bonds, or other instruments representing interests in or
1-29 claims against another person.
1-30 (f) A person is presumed to intend to defraud or harm
1-31 another if the person acts with respect to two or more writings of
1-32 the same type and if each writing is a government record listed in
1-33 Section 37.01(2)(C) [37.01(1)(C)].
1-34 SECTION 2. Section 32.46, Penal Code, is amended to read as
1-35 follows:
1-36 Sec. 32.46. SECURING EXECUTION OF DOCUMENT BY DECEPTION.
1-37 (a) A person commits an offense if, with intent to defraud or harm
1-38 any person, he, by deception:
1-39 (1) [,] causes another to sign or execute any document
1-40 affecting property or service or the pecuniary interest of any
1-41 person; or
1-42 (2) causes or induces a public servant to file or
1-43 record any purported judgment or other document purporting to
1-44 memorialize or evidence an act, an order, a directive, or process
1-45 of:
1-46 (A) a purported court that is not expressly
1-47 created or established under the constitution or the laws of this
1-48 state or of the United States;
1-49 (B) a purported judicial entity that is not
1-50 expressly created or established under the constitution or laws of
1-51 this state or of the United States; or
1-52 (C) a purported judicial officer of a purported
1-53 court or purported judicial entity described by Paragraph (A) or
1-54 (B).
1-55 (b) An offense under Subsection (a)(1) [this section] is a:
1-56 (1) Class C misdemeanor if the value of the property,
1-57 service, or pecuniary interest is less than $20;
1-58 (2) Class B misdemeanor if the value of the property,
1-59 service, or pecuniary interest is $20 or more but less than $500;
1-60 (3) Class A misdemeanor if the value of the property,
1-61 service, or pecuniary interest is $500 or more but less than
1-62 $1,500;
1-63 (4) state jail felony if the value of the property,
1-64 service, or pecuniary interest is $1,500 or more but less than
2-1 $20,000;
2-2 (5) felony of the third degree if the value of the
2-3 property, service, or pecuniary interest is $20,000 or more but
2-4 less than $100,000;
2-5 (6) felony of the second degree if the value of the
2-6 property, service, or pecuniary interest is $100,000 or more but
2-7 less than $200,000; or
2-8 (7) felony of the first degree if the value of the
2-9 property, service, or pecuniary interest is $200,000 or more.
2-10 (c) An offense under Subsection (a)(2) is a state jail
2-11 felony.
2-12 (d) In this section, "deception" has the meaning assigned by
2-13 Section 31.01.
2-14 SECTION 3. Subchapter D, Chapter 32, Penal Code, is amended
2-15 by adding Section 32.48 to read as follows:
2-16 Sec. 32.48. SIMULATING LEGAL PROCESS. (a) A person commits
2-17 an offense if the person recklessly causes to be delivered to
2-18 another any document that simulates a summons, complaint, judgment,
2-19 or other court process with the intent to:
2-20 (1) induce payment of a claim from another person; or
2-21 (2) cause another to:
2-22 (A) submit to the putative authority of the
2-23 document; or
2-24 (B) take any action or refrain from taking any
2-25 action in response to the document, in compliance with the
2-26 document, or on the basis of the document.
2-27 (b) Proof that the document was mailed to any person with
2-28 the intent that it be forwarded to the intended recipient is a
2-29 sufficient showing that the document was delivered.
2-30 (c) It is not a defense to prosecution under this section
2-31 that the simulating document:
2-32 (1) states that it is not legal process; or
2-33 (2) purports to have been issued or authorized by a
2-34 person or entity who did not have lawful authority to issue or
2-35 authorize the document.
2-36 (d) If it is shown on the trial of an offense under this
2-37 section that the simulating document was filed with, presented to,
2-38 or delivered to a clerk of a court or an employee of a clerk of a
2-39 court created or established under the constitution or laws of this
2-40 state, there is a rebuttable presumption that the document was
2-41 delivered with the intent described by Subsection (a).
2-42 (e) Except as provided by Subsection (f), an offense under
2-43 this section is a Class A misdemeanor.
2-44 (f) If it is shown on the trial of an offense under this
2-45 section that the defendant has previously been convicted of a
2-46 violation of this section, the offense is a state jail felony.
2-47 SECTION 4. Subchapter D, Chapter 32, Penal Code, is amended
2-48 by adding Section 32.49 to read as follows:
2-49 Sec. 32.49. REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR
2-50 CLAIM. (a) A person commits an offense if, with intent to defraud
2-51 or harm another, the person:
2-52 (1) owns, holds, or is the beneficiary of a purported
2-53 lien or claim asserted against real or personal property or an
2-54 interest in real or personal property that is fraudulent, as
2-55 described by Section 51.901(c), Government Code; and
2-56 (2) not later than the 21st day after the date of
2-57 receipt of actual or written notice sent by either certified or
2-58 registered mail, return receipt requested, to the person's last
2-59 known address, or by telephonic document transfer to the
2-60 recipient's current telecopier number, requesting the execution of
2-61 a release of the fraudulent lien or claim, refuses to execute the
2-62 release on the request of:
2-63 (A) the obligor or debtor; or
2-64 (B) any person who owns any interest in the real
2-65 or personal property described in the document or instrument that
2-66 is the basis for the lien or claim.
2-67 (b) A person who fails to execute a release of the purported
2-68 lien or claim within the period prescribed by Subsection (a)(2) is
2-69 presumed to have had the intent to harm or defraud another.
3-1 (c) An offense under this section is a Class A misdemeanor.
3-2 SECTION 5. Section 37.01, Penal Code, is amended to read as
3-3 follows:
3-4 Sec. 37.01. DEFINITIONS. In this chapter:
3-5 (1) "Court record" means a decree, judgment, order,
3-6 subpoena, warrant, minutes, or other document issued by a court of:
3-7 (A) this state;
3-8 (B) another state;
3-9 (C) the United States;
3-10 (D) a foreign country recognized by an act of
3-11 congress or a treaty or other international convention to which the
3-12 United States is a party;
3-13 (E) an Indian tribe recognized by the United
3-14 States; or
3-15 (F) any other jurisdiction, territory, or
3-16 protectorate entitled to full faith and credit in this state under
3-17 the United States Constitution.
3-18 (2) "Governmental record" means:
3-19 (A) anything belonging to, received by, or kept
3-20 by government for information, including a court record;
3-21 (B) anything required by law to be kept by
3-22 others for information of government; or
3-23 (C) a license, certificate, permit, seal, title,
3-24 letter of patent, or similar document issued by government.
3-25 (3) [(2)] "Statement" means any representation of
3-26 fact.
3-27 SECTION 6. Section 37.10, Penal Code, is amended by amending
3-28 Subsection (d) and adding Subsection (h) to read as follows:
3-29 (d) An offense under this section is a felony of the third
3-30 degree if it is shown on the trial of the offense that the
3-31 governmental record was a license, certificate, permit, seal,
3-32 title, letter of patent, or similar document issued by government,
3-33 unless the actor's intent is to defraud or harm another, in which
3-34 event the offense is a felony of the second degree.
3-35 (h) If conduct that constitutes an offense under this
3-36 section also constitutes an offense under Section 32.48 or 37.13,
3-37 the actor may be prosecuted under any of those sections.
3-38 SECTION 7. Section 37.11, Penal Code, is amended to read as
3-39 follows:
3-40 Sec. 37.11. IMPERSONATING PUBLIC SERVANT. (a) A person
3-41 commits an offense if he:
3-42 (1) impersonates a public servant with intent to
3-43 induce another to submit to his pretended official authority or to
3-44 rely on his pretended official acts; or
3-45 (2) knowingly purports to exercise any function of a
3-46 public servant or of a public office, including that of a judge
3-47 and court, and the position or office through which he purports to
3-48 exercise a function of a public servant or public office has no
3-49 lawful existence under the constitution or laws of this state or of
3-50 the United States.
3-51 (b) An offense under this section is [a Class A misdemeanor
3-52 unless the person impersonated a peace officer, in which event it
3-53 is] a felony of the third degree.
3-54 SECTION 8. Chapter 37, Penal Code, is amended by adding
3-55 Section 37.13 to read as follows:
3-56 Sec. 37.13. RECORD OF A FRAUDULENT COURT. (a) A person
3-57 commits an offense if the person makes, presents, or uses any
3-58 document or other record with:
3-59 (1) knowledge that the document or other record is not
3-60 a record of a court created under or established by the
3-61 constitution or laws of this state or of the United States; and
3-62 (2) the intent that the document or other record be
3-63 given the same legal effect as a record of a court created under or
3-64 established by the constitution or laws of this state or of the
3-65 United States.
3-66 (b) An offense under this section is a Class A misdemeanor,
3-67 except that the offense is a felony of the third degree if it is
3-68 shown on the trial of the offense that the defendant has previously
3-69 been convicted under this section on two or more occasions.
4-1 (c) If conduct that constitutes an offense under this
4-2 section also constitutes an offense under Section 32.48 or 37.10,
4-3 the actor may be prosecuted under any of those sections.
4-4 SECTION 9. Section 71.02(a), Penal Code, is amended to read
4-5 as follows:
4-6 (a) A person commits an offense if, with the intent to
4-7 establish, maintain, or participate in a combination or in the
4-8 profits of a combination or as a member of a criminal street gang,
4-9 he commits or conspires to commit one or more of the following:
4-10 (1) murder, capital murder, arson, aggravated robbery,
4-11 robbery, burglary, theft, aggravated kidnapping, kidnapping,
4-12 aggravated assault, aggravated sexual assault, sexual assault,
4-13 forgery, deadly conduct, assault punishable as a Class A
4-14 misdemeanor, burglary of a motor vehicle, or unauthorized use of a
4-15 motor vehicle;
4-16 (2) any gambling offense punishable as a Class A
4-17 misdemeanor;
4-18 (3) promotion of prostitution, aggravated promotion of
4-19 prostitution, or compelling prostitution;
4-20 (4) unlawful manufacture, transportation, repair, or
4-21 sale of firearms or prohibited weapons;
4-22 (5) unlawful manufacture, delivery, dispensation, or
4-23 distribution of a controlled substance or dangerous drug, or
4-24 unlawful possession of a controlled substance or dangerous drug
4-25 through forgery, fraud, misrepresentation, or deception;
4-26 (6) any unlawful wholesale promotion or possession of
4-27 any obscene material or obscene device with the intent to wholesale
4-28 promote the same;
4-29 (7) any unlawful employment, authorization, or
4-30 inducing of a child younger than 17 years of age in an obscene
4-31 sexual performance;
4-32 (8) any felony offense under Chapter 32, Penal Code;
4-33 (9) any offense under Chapter 36, Penal Code; [or]
4-34 (10) any offense under Chapter 34, Penal Code; or
4-35 (11) any offense under Section 37.11(a), Penal Code.
4-36 SECTION 10. Chapter 37, Penal Code, is amended by adding
4-37 Section 37.101 to read as follows:
4-38 Sec. 37.101. FRAUDULENT FILING OF FINANCING STATEMENT. (a)
4-39 A person commits an offense if the person knowingly presents for
4-40 filing or causes to be presented for filing a financing statement
4-41 that the person knows:
4-42 (1) is forged;
4-43 (2) contains a material false statement; or
4-44 (3) is groundless.
4-45 (b) An offense under Subsection (a)(1) is a felony of the
4-46 third degree, unless it is shown on the trial of the offense that
4-47 the person had previously been convicted under this section on two
4-48 or more occasions, in which event the offense is a felony of the
4-49 second degree. An offense under Subsection (a)(2) or (a)(3) is a
4-50 Class A misdemeanor, unless the person commits the offense with the
4-51 intent to defraud or harm another, in which event the offense is a
4-52 state jail felony.
4-53 SECTION 11. Chapter 1, Code of Criminal Procedure, is
4-54 amended by adding Article 1.052 to read as follows:
4-55 Art. 1.052. SIGNED PLEADINGS OF DEFENDANT. (a) A pleading,
4-56 motion, and other paper filed for or on behalf of a defendant
4-57 represented by an attorney must be signed by at least one attorney
4-58 of record in the attorney's name and state the attorney's address.
4-59 A defendant who is not represented by an attorney must sign any
4-60 pleading, motion, or other paper filed for or on the defendant's
4-61 behalf and state the defendant's address.
4-62 (b) The signature of an attorney or a defendant constitutes
4-63 a certificate by the attorney or defendant that the person has read
4-64 the pleading, motion, or other paper and that to the best of the
4-65 person's knowledge, information, and belief formed after reasonable
4-66 inquiry that the instrument is not groundless and brought in bad
4-67 faith or groundless and brought for harassment, unnecessary delay,
4-68 or other improper purpose.
4-69 (c) If a pleading, motion, or other paper is not signed, the
5-1 court shall strike it unless it is signed promptly after the
5-2 omission is called to the attention of the attorney or defendant.
5-3 (d) An attorney or defendant who files a fictitious pleading
5-4 in a cause for an improper purpose described by Subsection (b) or
5-5 who makes a statement in a pleading that the attorney or defendant
5-6 knows to be groundless and false to obtain a delay of the trial of
5-7 the cause or for the purpose of harassment shall be held guilty of
5-8 contempt.
5-9 (e) If a pleading, motion, or other paper is signed in
5-10 violation of this article, the court, on motion or on its own
5-11 initiative, after notice and hearing, shall impose an appropriate
5-12 sanction, which may include an order to pay to the other party or
5-13 parties to the prosecution or to the general fund of the county in
5-14 which the pleading, motion, or other paper was filed the amount of
5-15 reasonable expenses incurred because of the filing of the pleading,
5-16 motion, or other paper, including reasonable attorney's fees.
5-17 (f) A court shall presume that a pleading, motion, or other
5-18 paper is filed in good faith. Sanctions under this article may not
5-19 be imposed except for good cause stated in the sanction order.
5-20 (g) A plea of "not guilty" or "no contest" or "nolo
5-21 contendere" does not constitute a violation of this article. An
5-22 allegation that an event took place or occurred on or about a
5-23 particular date does not constitute a violation of this article.
5-24 (h) In this article, "groundless" means without basis in law
5-25 or fact and not warranted by a good faith argument for the
5-26 extension, modification, or reversal of existing law.
5-27 SECTION 12. Chapter 13, Code of Criminal Procedure, is
5-28 amended by adding Article 13.26 to read as follows:
5-29 Art. 13.26. SIMULATING LEGAL PROCESS. An offense under
5-30 Section 32.46, 32.48, 32.49, or 37.13, Penal Code, may be
5-31 prosecuted either in the county from which any material document
5-32 was sent or in the county in which it was delivered.
5-33 SECTION 13. Section 51.605(c), Government Code, is amended
5-34 to read as follows:
5-35 (c) A clerk must successfully complete 20 hours of
5-36 continuing education courses in the performance of the duties of
5-37 office at least one time in each 24-month period. The 20 hours of
5-38 required continuing education courses must include at least one
5-39 hour of continuing education regarding fraudulent court documents
5-40 and fraudulent document filings.
5-41 SECTION 14. Chapter 51, Government Code, is amended by
5-42 adding Subchapter J to read as follows:
5-43 SUBCHAPTER J. CERTAIN FRAUDULENT RECORDS OR DOCUMENTS
5-44 Sec. 51.901. FRAUDULENT DOCUMENT OR INSTRUMENT. (a) If a
5-45 clerk of the supreme court, clerk of the court of criminal appeals,
5-46 clerk of a court of appeals, district clerk, county clerk, district
5-47 and county clerk, or municipal clerk has a reasonable basis to
5-48 believe in good faith that a document or instrument previously
5-49 filed or recorded or offered or submitted for filing or for filing
5-50 and recording is fraudulent, the clerk shall:
5-51 (1) if the document is a purported judgment or other
5-52 document purporting to memorialize or evidence an act, an order, a
5-53 directive, or process of a purported court, provide written notice
5-54 of the filing, recording, or submission for filing or for filing
5-55 and recording to the stated or last known address of the person
5-56 against whom the purported judgment, act, order, directive, or
5-57 process is rendered; or
5-58 (2) if the document or instrument purports to create a
5-59 lien or assert a claim on real or personal property or an interest
5-60 in real or personal property, provide written notice of the filing,
5-61 recording, or submission for filing or for filing and recording to
5-62 the stated or last known address of the person named in the
5-63 document or instrument as the obligor or debtor and to any person
5-64 named as owning any interest in the real or personal property
5-65 described in the document or instrument.
5-66 (b) A clerk shall provide written notice under Subsection
5-67 (a):
5-68 (1) not later than the second business day after the
5-69 date that the document or instrument is offered or submitted for
6-1 filing or for filing and recording; or
6-2 (2) if the document or instrument has been previously
6-3 filed or recorded, not later than the second business day after the
6-4 date that the clerk becomes aware that the document or instrument
6-5 may be fraudulent.
6-6 (c) For purposes of this section, a document or instrument
6-7 is presumed to be fraudulent if:
6-8 (1) the document is a purported judgment or other
6-9 document purporting to memorialize or evidence an act, an order, a
6-10 directive, or process of:
6-11 (A) a purported court or a purported judicial
6-12 entity not expressly created or established under the constitution
6-13 or the laws of this state or of the United States; or
6-14 (B) a purported judicial officer of a purported
6-15 court or purported judicial entity described by Paragraph (A); or
6-16 (2) the document or instrument purports to create a
6-17 lien or assert a claim against real or personal property or an
6-18 interest in real or personal property and:
6-19 (A) is not a document or instrument provided for
6-20 by the constitution or laws of this state or of the United States;
6-21 (B) is not created by implied or express consent
6-22 or agreement of the obligor, debtor, or the owner of the real or
6-23 personal property or an interest in the real or personal property,
6-24 if required under the laws of this state, or by implied or express
6-25 consent or agreement of an agent, fiduciary, or other
6-26 representative of that person; or
6-27 (C) is not an equitable, constructive, or other
6-28 lien imposed by a court with jurisdiction created or established
6-29 under the constitution or laws of this state or of the United
6-30 States.
6-31 Sec. 51.902. ACTION ON FRAUDULENT JUDGMENT LIEN. (a) A
6-32 person against whom a purported judgment was rendered who has
6-33 reason to believe that a document previously filed or recorded or
6-34 submitted for filing or for filing and recording is fraudulent may
6-35 complete and file with the district clerk a motion, verified by
6-36 affidavit by a completed form for ordinary certificate of
6-37 acknowledgment, of the same type described by Section 121.007,
6-38 Civil Practice and Remedies Code, that contains, at a minimum, the
6-39 information in the following suggested form:
6-40 MISC. DOCKET NO. __________
6-41 In Re: A Purported In the _______ Judicial District
6-42 Judgment Lien Against In and For _____________________
6-43 (Name of Purported County, Texas
6-44 Debtor)
6-45 Motion for Judicial Review of a Documentation Purporting to
6-46 Create a Judgment Lien
6-47 Now Comes (name) and files this motion requesting a judicial
6-48 determination of the status of a court, judicial entity, or
6-49 judicial officer purporting to have taken an action that is the
6-50 basis of a judgment lien filed in the office of said clerk, and in
6-51 support of the motion would show the court as follows:
6-52 I.
6-53 (Name), movant herein, is the person against whom the
6-54 purported judgment was rendered.
6-55 II.
6-56 On (date), in the exercise of the county clerk's official
6-57 duties as County Clerk of (county name) County, Texas, the county
6-58 clerk received and filed or filed and recorded the documentation
6-59 attached hereto and containing (number) pages. Said documentation
6-60 purports to have been rendered on the basis of a judgment, act,
6-61 order, directive, or process of a court, judicial entity, or
6-62 judicial officer called therein "(name of purported court, judicial
6-63 entity, or judicial officer)" against one (name of purported
6-64 debtor).
6-65 III.
6-66 Movant alleges that the purported court, judicial entity, or
6-67 judicial officer referred to in the attached documentation is one
6-68 described in Section 51.901(c)(1), Government Code, as not legally
6-69 created or established under the constitution or laws of this state
7-1 or of the United States, and that the documentation should
7-2 therefore not be accorded lien status.
7-3 IV.
7-4 Movant further attests that the assertions contained herein
7-5 are true and correct.
7-6 PRAYER
7-7 Movant requests the court to review the attached
7-8 documentation and enter an order determining whether it should be
7-9 accorded lien status, together with such other orders as the court
7-10 deems appropriate.
7-11 Respectfully submitted,
7-12 _________________________
7-13 (Signature and typed name
7-14 and address)
7-15 (b) The completed form for ordinary certificate of
7-16 acknowledgment, of the same type described by Section 121.007,
7-17 Civil Practice and Remedies Code, must be as follows:
7-18 AFFIDAVIT
7-19 THE STATE OF TEXAS
7-20 COUNTY OF ______________
7-21 BEFORE ME, the undersigned authority, personally appeared
7-22 ____________, who, being by me duly sworn, deposed as follows:
7-23 "My name is __________________. I am over 21 years of age,
7-24 of sound mind, with personal knowledge of the following facts, and
7-25 fully competent to testify.
7-26 I further attest that the assertions contained in the
7-27 accompanying motion are true and correct."
7-28 Further affiant sayeth not.
7-29 __________________________________
7-30 SUBSCRIBED and SWORN TO before me, this
7-31 _______ day of _________________________, ____.
7-32 __________________________________
7-33 NOTARY PUBLIC, State of Texas
7-34 Notary's printed name:
7-35 ______________________
7-36 My commission expires:
7-37 ________________________
7-38 (c) A motion filed under this section may be ruled on by a
7-39 district judge having jurisdiction over real property matters in
7-40 the county where the subject documentation was filed. The court's
7-41 finding may be made solely on a review of the documentation
7-42 attached to the movant's motion and without hearing any testimonial
7-43 evidence. The court's review may be made ex parte without delay or
7-44 notice of any kind. The court's ruling on the motion, in the
7-45 nature of a finding of fact and a conclusion of law, is
7-46 unappealable if it is substantially similar to the form suggested
7-47 in Subsection (g).
7-48 (d) The district clerk may not collect a filing fee for
7-49 filing a motion under this section.
7-50 (e) After reviewing the documentation attached to a motion
7-51 under this section, the district judge shall enter an appropriate
7-52 finding of fact and conclusion of law, which must be filed and
7-53 indexed in the same class of records in which the subject
7-54 documentation or instrument was originally filed.
7-55 (f) The county clerk may not collect a filing fee for filing
7-56 a district judge's finding of fact and conclusion of law under this
7-57 section.
7-58 (g) A suggested form order appropriate to comply with this
7-59 section is as follows:
7-60 MISC. DOCKET NO. __________
7-61 In Re: A Purported In the _______ Judicial District
7-62 Judgment Lien Against In and For _____________________
7-63 (Name of Purported County, Texas
7-64 Debtor)
7-65 Judicial Finding of Fact and Conclusion of Law
7-66 Regarding a Documentation Purporting to Create a Judgment Lien
7-67 On the (number) day of (month), (year), in the above entitled
7-68 and numbered cause, this court reviewed a motion verified by
7-69 affidavit of (name) and the documentation attached thereto. No
8-1 testimony was taken from any party, nor was there any notice of the
8-2 court's review, the court having made the determination that a
8-3 decision could be made solely on review of the documentation under
8-4 the authority vested in the court under Subchapter J, Chapter 51,
8-5 Government Code.
8-6 The court finds as follows (only an item checked and
8-7 initialed is a valid court ruling):
8-8 ______ The documentation attached to the motion herein refers to a
8-9 legally constituted court, judicial entity, or judicial officer
8-10 created by or established under the constitution or laws of this
8-11 state or of the United States. This judicial finding and
8-12 conclusion of law does not constitute a finding as to any
8-13 underlying claims of the parties.
8-14 ______ The documentation attached to the motion herein DOES NOT
8-15 refer to a legally constituted court, judicial entity, or judicial
8-16 officer created by or established under the constitution or laws of
8-17 this state or of the United States. There is no valid judgment
8-18 lien created by the documentation.
8-19 This court makes no finding as to any underlying claims of
8-20 the parties involved and expressly limits its finding of fact and
8-21 conclusion of law to a ministerial act. The county clerk shall
8-22 file this finding of fact and conclusion of law in the same class
8-23 of records as the subject documentation was originally filed, and
8-24 the court directs the county clerk to index it using the same names
8-25 that were used in indexing the subject document.
8-26 SIGNED ON THIS THE ________ DAY OF____________________.
8-27 _______________________________
8-28 DISTRICT JUDGE
8-29 ________ JUDICIAL DISTRICT
8-30 _________________ COUNTY, TEXAS
8-31 Sec. 51.903. ACTION ON FRAUDULENT LIEN ON PROPERTY. (a) A
8-32 person who is the purported debtor or obligor or who owns real or
8-33 personal property or an interest in real or personal property and
8-34 who has reason to believe that the document purporting to create a
8-35 lien or a claim against the real or personal property or an
8-36 interest in the real or personal property previously filed or
8-37 submitted for filing and recording is fraudulent may complete and
8-38 file with the district clerk a motion, verified by affidavit by a
8-39 completed form for ordinary certificate of acknowledgment, of the
8-40 same type described by Section 121.007, Civil Practice and Remedies
8-41 Code, that contains, at a minimum, the information in the following
8-42 suggested form:
8-43 MISC. DOCKET NO. __________
8-44 In Re: A Purported In the _______ Judicial District
8-45 Lien or Claim Against In and For _____________________
8-46 (Name of Purported County, Texas
8-47 Debtor)
8-48 Motion for Judicial Review of Documentation or Instrument
8-49 Purporting to Create a Lien or Claim
8-50 Now Comes (name) and files this motion requesting a judicial
8-51 determination of the status of documentation or an instrument
8-52 purporting to create an interest in real or personal property or a
8-53 lien or claim on real or personal property or an interest in real
8-54 or personal property filed in the office of the Clerk of (county
8-55 name) County, Texas, and in support of the motion would show the
8-56 court as follows:
8-57 I.
8-58 (Name), movant herein, is the purported obligor or debtor or
8-59 person who owns the real or personal property or the interest in
8-60 real or personal property described in the documentation or
8-61 instrument.
8-62 II.
8-63 On (date), in the exercise of the county clerk's official
8-64 duties as County Clerk of (county name) County, Texas, the county
8-65 clerk received and filed and recorded the documentation or
8-66 instrument attached hereto and containing (number) pages. Said
8-67 documentation or instrument purports to have created a lien on real
8-68 or personal property or an interest in real or personal property
8-69 against one (name of purported debtor).
9-1 III.
9-2 Movant alleges that the documentation or instrument attached
9-3 hereto is fraudulent, as defined by Section 51.901(c)(2),
9-4 Government Code, and that the documentation or instrument should
9-5 therefore not be accorded lien status.
9-6 IV.
9-7 Movant attests that assertions herein are true and correct.
9-8 V.
9-9 Movant does not request the court to make a finding as to any
9-10 underlying claim of the parties involved and acknowledges that this
9-11 motion does not seek to invalidate a legitimate lien. Movant
9-12 further acknowledges that movant may be subject to sanctions, as
9-13 provided by Chapter 10, Civil Practice and Remedies Code, if this
9-14 motion is determined to be frivolous.
9-15 PRAYER
9-16 Movant requests the court to review the attached
9-17 documentation or instrument and enter an order determining whether
9-18 it should be accorded lien status, together with such other orders
9-19 as the court deems appropriate.
9-20 Respectfully submitted,
9-21 _________________________
9-22 (Signature and typed name
9-23 and address)
9-24 (b) The completed form for ordinary certificate of
9-25 acknowledgment, of the same type described by Section 121.007,
9-26 Civil Practice and Remedies Code, must be as follows:
9-27 AFFIDAVIT
9-28 THE STATE OF TEXAS
9-29 COUNTY OF _____________
9-30 BEFORE ME, the undersigned authority, personally appeared
9-31 _____________, who, being by me duly sworn, deposed as follows:
9-32 "My name is _________________. I am over 21 years of age, of
9-33 sound mind, with personal knowledge of the following facts, and
9-34 fully competent to testify.
9-35 I further attest that the assertions contained in the
9-36 accompanying motion are true and correct."
9-37 Further affiant sayeth not.
9-38 __________________________________
9-39 SUBSCRIBED and SWORN TO before me, this
9-40 _______ day of ___________________, ____.
9-41 ___________________________________
9-42 NOTARY PUBLIC, State of Texas
9-43 Notary's printed name:
9-44 ______________________
9-45 My commission expires:
9-46 ______________________
9-47 (c) A motion under this section may be ruled on by a
9-48 district judge having jurisdiction over real property matters in
9-49 the county where the subject document was filed. The court's
9-50 finding may be made solely on a review of the documentation or
9-51 instrument attached to the motion and without hearing any
9-52 testimonial evidence. The court's review may be made ex parte
9-53 without delay or notice of any kind. An appellate court shall
9-54 expedite review of a court's finding under this section.
9-55 (d) The district clerk may not collect a filing fee for
9-56 filing a motion under this section.
9-57 (e) After reviewing the documentation or instrument attached
9-58 to a motion under this section, the district judge shall enter an
9-59 appropriate finding of fact and conclusion of law, which must be
9-60 filed and indexed in the same class of records in which the subject
9-61 documentation or instrument was originally filed. A copy of the
9-62 finding of fact and conclusion of law shall be sent, by first class
9-63 mail, to the movant and to the person who filed the fraudulent lien
9-64 or claim at the last known address of each person within seven days
9-65 of the date that the finding of fact and conclusion of law is
9-66 issued by the judge.
9-67 (f) The county clerk may not collect a fee for filing a
9-68 district judge's finding of fact and conclusion of law under this
9-69 section.
10-1 (g) A suggested form order appropriate to comply with this
10-2 section is as follows:
10-3 MISC. DOCKET NO. __________
10-4 In Re: A Purported In the _______ Judicial District
10-5 Lien or Claim Against In and For _____________________
10-6 (Name of Purported County, Texas
10-7 Debtor)
10-8 Judicial Finding of Fact and Conclusion of Law Regarding a
10-9 Documentation or Instrument Purporting to Create a Lien or Claim
10-10 On the (number) day of (month), (year), in the above entitled
10-11 and numbered cause, this court reviewed a motion, verified by
10-12 affidavit, of (name) and the documentation or instrument attached
10-13 thereto. No testimony was taken from any party, nor was there any
10-14 notice of the court's review, the court having made the
10-15 determination that a decision could be made solely on review of the
10-16 documentation or instrument under the authority vested in the court
10-17 under Subchapter J, Chapter 51, Government Code.
10-18 The court finds as follows (only an item checked and
10-19 initialed is a valid court ruling):
10-20 _______ The documentation or instrument attached to the motion
10-21 herein IS asserted against real or personal property or an interest
10-22 in real or personal property and:
10-23 (1) IS provided for by specific state or federal
10-24 statutes or constitutional provisions;
10-25 (2) IS created by implied or express consent or
10-26 agreement of the obligor, debtor, or the owner of the real or
10-27 personal property or an interest in the real or personal property,
10-28 if required under the laws of this state, or by consent of an
10-29 agent, fiduciary, or other representative of that person; or
10-30 (3) IS an equitable, constructive, or other lien
10-31 imposed by a court of competent jurisdiction created or
10-32 established under the constitution or laws of this state or of the
10-33 United States.
10-34 _______ The documentation or instrument attached to the motion
10-35 herein:
10-36 (1) IS NOT provided for by specific state or federal
10-37 statutes or constitutional provisions;
10-38 (2) IS NOT created by implied or express consent or
10-39 agreement of the obligor, debtor, or the owner of the real or
10-40 personal property or an interest in the real or personal property,
10-41 if required under the law of this state or by implied or express
10-42 consent or agreement of an agent, fiduciary, or other
10-43 representative of that person;
10-44 (3) IS NOT an equitable, constructive, or other lien
10-45 imposed by a court of competent jurisdiction created by or
10-46 established under the constitution or laws of this state or the
10-47 United States; or
10-48 (4) IS NOT asserted against real or personal property
10-49 or an interest in real or personal property. There is no valid
10-50 lien or claim created by this documentation or instrument.
10-51 This court makes no finding as to any underlying claims of
10-52 the parties involved, and expressly limits its finding of fact and
10-53 conclusion of law to the review of a ministerial act. The county
10-54 clerk shall file this finding of fact and conclusion of law in the
10-55 same class of records as the subject documentation or instrument
10-56 was originally filed, and the court directs the county clerk to
10-57 index it using the same names that were used in indexing the
10-58 subject documentation or instrument.
10-59 SIGNED ON THIS THE ________ DAY OF____________________.
10-60 _______________________________
10-61 DISTRICT JUDGE
10-62 ________ JUDICIAL DISTRICT
10-63 _________________ COUNTY, TEXAS
10-64 Sec. 51.904. WARNING SIGN. A clerk described by Section
10-65 51.901(a) shall post a sign, in letters at least one inch in
10-66 height, that is clearly visible to the general public in or near
10-67 the clerk's office stating that it is a crime to intentionally or
10-68 knowingly file a fraudulent court record or a fraudulent instrument
10-69 with the clerk.
11-1 Sec. 51.905. DOCUMENTS FILED WITH SECRETARY OF STATE.
11-2 (a) If the lien or other claim that is the subject of a judicial
11-3 finding of fact and conclusion of law authorized by this subchapter
11-4 is one that is authorized by law to be filed with the secretary of
11-5 state, any person may file a certified copy of the judicial finding
11-6 of fact and conclusion of law in the records of the secretary of
11-7 state, who shall file the certified copy of the finding in the same
11-8 class of records as the subject document or instrument was
11-9 originally filed and index it using the same names that were used
11-10 in indexing the subject document or instrument.
11-11 (b) The secretary of state may charge a filing fee of $15
11-12 for filing a certified copy of a judicial finding of fact and
11-13 conclusion of law under this section.
11-14 SECTION 15. Section 12.013, Property Code, is amended to
11-15 read as follows:
11-16 Sec. 12.013. JUDGMENT. A judgment or an abstract of a
11-17 judgment of a court [in this state] may be recorded if:
11-18 (1) the judgment is of a court:
11-19 (A) expressly created or established under the
11-20 constitution or laws of this state or of the United States;
11-21 (B) that is a court of a foreign country and
11-22 that is recognized by an Act of congress or a treaty or other
11-23 international convention to which the United States is a party; or
11-24 (C) of any other jurisdiction, territory, or
11-25 protectorate entitled to full faith and credit in this state under
11-26 the Constitution of the United States; and
11-27 (2) the judgment is attested under the signature and
11-28 seal of the clerk of the court that rendered the judgment.
11-29 SECTION 16. Subtitle A, Title 2, Civil Practice and Remedies
11-30 Code, is amended by adding Chapter 11 to read as follows:
11-31 CHAPTER 11. LIABILITY RELATED TO A FRAUDULENT COURT
11-32 RECORD OR A FRAUDULENT LIEN OR CLAIM FILED AGAINST REAL
11-33 OR PERSONAL PROPERTY
11-34 Sec. 11.001. DEFINITIONS. In this chapter:
11-35 (1) "Court record" has the meaning assigned by Section
11-36 37.01, Penal Code.
11-37 (2) "Exemplary damages" has the meaning assigned by
11-38 Section 41.001.
11-39 (3) "Lien" means a claim in property for the payment
11-40 of a debt and includes a security interest.
11-41 (4) "Public servant" has the meaning assigned by
11-42 Section 1.07, Penal Code, and includes officers and employees of
11-43 the United States.
11-44 Sec. 11.002. LIABILITY. (a) A person may not make,
11-45 present, or use a document or other record with:
11-46 (1) knowledge that the document or other record is a
11-47 fraudulent court record or a fraudulent lien or claim against real
11-48 or personal property or an interest in real or personal property;
11-49 (2) intent that the document or other record be given
11-50 the same legal effect as a court record or document of a court
11-51 created by or established under the constitution or laws of this
11-52 state or the United States or another entity listed in Section
11-53 37.01, Penal Code, evidencing a valid lien or claim against real or
11-54 personal property or an interest in real or personal property; and
11-55 (3) intent to cause another person to suffer:
11-56 (A) physical injury;
11-57 (B) financial injury; or
11-58 (C) mental anguish or emotional distress.
11-59 (b) A person who violates Subsection (a) is liable to each
11-60 injured person for:
11-61 (1) the greater of:
11-62 (A) $10,000; or
11-63 (B) the actual damages caused by the violation;
11-64 (2) court costs;
11-65 (3) reasonable attorney's fees; and
11-66 (4) exemplary damages in an amount determined by the
11-67 court.
11-68 Sec. 11.003. CAUSE OF ACTION. (a) The following persons
11-69 may bring an action to enjoin violation of this chapter or to
12-1 recover damages under this chapter:
12-2 (1) the attorney general;
12-3 (2) a district attorney;
12-4 (3) a criminal district attorney;
12-5 (4) a county attorney with felony responsibilities;
12-6 (5) a county attorney;
12-7 (6) a municipal attorney;
12-8 (7) in the case of a fraudulent judgment lien, the
12-9 person against whom the judgment is rendered; and
12-10 (8) in the case of a fraudulent lien or claim against
12-11 real or personal property or an interest in real or personal
12-12 property, the obligor or debtor, or a person who owns an interest
12-13 in the real or personal property.
12-14 (b) Notwithstanding any other law, a person or a person
12-15 licensed or regulated by Chapter 9, Insurance Code (the Texas Title
12-16 Insurance Act), does not have a duty to disclose a fraudulent, as
12-17 described by Section 51.901(c), Government Code, court record,
12-18 document, or instrument purporting to create a lien or purporting
12-19 to assert a claim on real property or an interest in real property
12-20 in connection with a sale, conveyance, mortgage, or other transfer
12-21 of the real property or interest in real property.
12-22 (c) Notwithstanding any other law, a purported judgment lien
12-23 or document establishing or purporting to establish a judgment lien
12-24 against property in this state, that is issued or purportedly
12-25 issued by a court or a purported court other than a court
12-26 established under the laws of this state or the United States, is
12-27 void and has no effect in the determination of any title or right
12-28 to the property.
12-29 Sec. 11.004. VENUE. An action under this chapter may be
12-30 brought in any district court in the county in which the recorded
12-31 document is recorded or in which the real property is located.
12-32 Sec. 11.005. FILING FEES. (a) The fee for filing an action
12-33 under this chapter is $15. The plaintiff must pay the fee to the
12-34 clerk of the court in which the action is filed. Except as
12-35 provided by Subsection (b), the plaintiff may not be assessed any
12-36 other fee, cost, charge, or expense by the clerk of the court or
12-37 other public official in connection with the action.
12-38 (b) The fee for service of notice of an action under this
12-39 section charged to the plaintiff may not exceed:
12-40 (1) $20 if the notice is delivered in person; or
12-41 (2) the cost of postage if the service is by
12-42 registered or certified mail.
12-43 (c) A plaintiff who is unable to pay the filing fee and fee
12-44 for service of notice may file with the court an affidavit of
12-45 inability to pay under the Texas Rules of Civil Procedure.
12-46 (d) If the fee imposed under Subsection (a) is less than the
12-47 filing fee the court imposes for filing other similar actions and
12-48 the plaintiff prevails in the action, the court may order a
12-49 defendant to pay to the court the differences between the fee paid
12-50 under Subsection (a) and the filing fee the court imposes for
12-51 filing other similar actions.
12-52 Sec. 11.006. PLAINTIFF'S COSTS. (a) The court shall award
12-53 the plaintiff the costs of bringing the action if:
12-54 (1) the plaintiff prevails; and
12-55 (2) the court finds that the defendant, at the time
12-56 the defendant caused the recorded document to be recorded or filed,
12-57 knew or should have known that the recorded document is fraudulent,
12-58 as described by Section 51.901(c), Government Code.
12-59 (b) For purposes of this section, the costs of bringing the
12-60 action include all court costs, attorney's fees, and related
12-61 expenses of bringing the action, including investigative expenses.
12-62 Sec. 11.007. EFFECT ON OTHER LAW. This law is cumulative of
12-63 other law under which a person may obtain judicial relief with
12-64 respect to a recorded document or other record.
12-65 SECTION 17. Section 9.412(c), Business & Commerce Code, is
12-66 repealed.
12-67 SECTION 18. An action for an order under Subchapter J,
12-68 Chapter 51, Government Code, as added by this Act, may be brought
12-69 with respect to a recorded document or instrument without regard to
13-1 whether the document or instrument was filed before, on, or after
13-2 the effective date of this Act.
13-3 SECTION 19. A clerk must successfully complete one hour of
13-4 continuing education regarding fraudulent court documents and
13-5 fraudulent document filings required by Section 51.605(c),
13-6 Government Code, as amended by this Act, before September 1, 1998.
13-7 SECTION 20. The change in law made by Section 16 of this Act
13-8 applies only to a cause of action that accrues on or after the
13-9 effective date of this Act. A cause of action that accrues before
13-10 the effective date of this Act is governed by the law in effect on
13-11 the date the cause of action accrues, and that law is continued in
13-12 effect for this purpose.
13-13 SECTION 21. (a) The change in law made by this Act applies
13-14 only to a criminal offense committed on or after the effective date
13-15 of this Act. For the purposes of this Act, a criminal offense is
13-16 committed before the effective date of this Act if any element of
13-17 the offense occurs before that date.
13-18 (b) An offense committed before the effective date of this
13-19 Act is covered by the law in effect when the criminal offense was
13-20 committed, and the former law is continued in effect for this
13-21 purpose.
13-22 SECTION 22. The importance of this legislation and the
13-23 crowded condition of the calendars in both houses create an
13-24 emergency and an imperative public necessity that the
13-25 constitutional rule requiring bills to be read on three several
13-26 days in each house be suspended, and this rule is hereby suspended,
13-27 and that this Act take effect and be in force from and after its
13-28 passage, and it is so enacted.
13-29 * * * * *