Liverman v. State
No. PD-1595-14, PD-1596-14
Case Summary written by Kylie Rahl, Staff Member.
JUDGE KELLER delivered the opinion of the court in which JUDGES KEASLER, HERVEY, ALCALA, RICHARSON, YEARLY, and NEWELL joined. JUDGE JOHNSON concurred and JUDGE MEYERES dissented.
After the appellants Roger and Aaron Liverman filed fraudulent mechanic’s lien affidavits alleging they had performed “labor and/or materials” worth a certain amount of money, the State charged and convicted the appellants with securing the execution of documents by deception. Specifically, the indictments alleged that the appellants caused the county clerk to sign or execute the mechanic’s lien affidavits.
Issue: Does a person commit a crime of securing the execution of documents by deception when he files a false mechanic’s lien affidavit with the county clerk?
The court’s analysis turned on the meaning of the statute under which the appellants had been prosecuted. The statute—Tex. Penal Code § 32.46(a)(1) —reads:
- A person commits an offense if, with intent to defraud or harm any person, he, by deception:
- causes another person to sign or execute any document affecting property or service or the pecuniary interest of any person.
The court concluded the meaning of “execute” found within the statute was “to bring (a legal document) into its final, legally enforceable form[.]” In determining whether the document at issue here was “executed,” the court found the mechanic’s lien affidavit became legally enforceable upon filing; thus it was executed. Because the statute also requires the appellants to cause “another person” to execute the document, the court then analyzed whether a county clerk was considered to be that person.
According to the Property Code, the person claiming the lien is the person filing the affidavit with the county clerk, and “failure of the county clerk to properly record or index a filed affidavit does not invalidate the lien.” This language establishes that the county clerk is merely a recipient of the filing, and recording or indexing by the clerk does not in any way alter the legal effect of a filing. Further, the court noted the clerk need not have any active involvement in the filing because in situations of electronic filing, a machine may handle the entire transaction of receiving and acknowledging the filing. Consequently, the court concluded the county clerk did not execute the mechanic’s lien affidavit when filed; rather the appellants executed the documents themselves. As a result, the appellants did not cause “another” to “execute” the mechanic’s lien affidavits according to Penal Code § 32.46(a)(1); therefore, the evidence was legally insufficient to support the conviction.