Court Sets Aside Fraud Conviction Based on the Meaning of One Common Word in the Statute

By October 2, 2015Fraud

What does it mean to cause someone to fraudulently execute a document?

Fraudulent execution of document TexasRoger and Aaron Liverman filed separate mechanic’s lien affidavits with the Denton County clerk, claiming that they had worked on Katheryn Payne’s home and had not been paid. The county clerk filed and recorded the liens, which is the customary practice. The mechanic’s liens were determined to be fraudulent, and the Livermans were charged with securing the execution of documents by deception. The Livermans were convicted and placed on community supervision.

On appeal, the court of appeals reversed the Livermans’ convictions. The State appealed to the Court of Criminal Appeals. Because the case turned on an interpretation of statutory language, the CCA reviewed the case de novo; in other words, rather than reviewing the reasonableness of the lower court’s decision, the CCA made its own independent decision based on the facts and the statute.

OpinionLiverman v. StateTexas Court of Criminal Appeals 2015

The language of the statute under which the Livermans were convicted states that a person commits a crime if, “with intent to defraud or harm any person, he, by deception causes another to sign or execute any document affecting property or service . . . .” The case before the CCA boiled down to three questions: (1) What does the term “execute” mean in the statute? If nothing was executed, there was no offense. (2) Did the Livermans’ action of filing the fraudulent liens meet the definition of execution? (3) Who actually executes a mechanic’s lien when it is filed? The offense involves deceptively causing “another” to sign or execute a document. If the clerk’s actions constituted execution, the Livermans might be guilty. If the Livermans executed the affidavits themselves by filing them, then they could not be convicted under the statute.

Arguments against Fraudulent Execution of a Document

The State and the Livermans put forward a number of arguments for their respective positions. The arguments involved comparing the “sign and execute” language of the statute with a related provision that uses the phrase “file and record;” consideration of the legislative intent and history when the statute was enacted; and which action actually perfected the liens. After reviewing the arguments and performing its own analysis, the CCA concluded:

(1) The term “execute” means more than just to sign a document and involves the broader act of bringing a document to its final, legally enforceable form.

(2) When the Livermans filed the affidavits with the clerk, the affidavits accomplished their role in perfecting the mechanic’s lien. Therefore, the act of filing the affidavits was equivalent to execution.

(3) Because Texas law requires the person claiming a mechanic’s lien to “file” the affidavit, then the Livermans did execute the affidavits by filing them. However, the CCA considered whether the clerk’s actions might also constitute execution. Although the county clerk is required by law to record or index a filed affidavit, the clerk’s failure to do so does not invalidate the lien. If the clerk’s action of recording or indexing can be omitted and the affidavit still be valid, then the clerk’s actions clearly did not “execute” the affidavits.

But, asked the Court, did the clerk “execute” the affidavits by accepting them when the Livermans filed them? The CCA answered in the negative. The statutory requirement to file the affidavit “with the county clerk” means that the clerk is simply the recipient of the filing and plays no role in its execution.

Because no action of the clerk executed the affidavits, the CCA held, the Livermans did not cause “another” to “execute” the documents as required for the offense of which they were convicted. The CCA agreed with the court of appeals, with the result of setting aside the Livermans’ conviction.

Many people will recall President Bill Clinton’s grand jury testimony in the Monica Lewinsky case. When asked why he wasn’t lying when the told his aides that there was nothing going on between him and Miss Lewinsky, the President said “[i]t depends on what the meaning of the word ‘is’ is.”

While many will find the President’s response amusing, a Criminal Defense Attorney in Fort Worth may see an opportunity. Although not nearly so salacious as the Monica Lewinsky affair, the Livermans’ case truly turned on what the meaning of the word “execute” is.

A Criminal Defense Attorney in Fort Worth will understand and appreciate the nuances of the statutory language and may succeed in acquittal by arguing that the law does (or does not) say what it seems to say.

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