Liverman, Roger
PD-1595-14
| Tex. App. | Mar 11, 2015Background
- Aaron and Roger Liverman filed sworn affidavits purporting to create liens against Katheryn Hall’s property after employment and eviction disputes; Denton County clerk filed and recorded the instruments.
- Trial court convicted both appellees of securing execution of a document by deception under Tex. Penal Code § 32.46(a)(1); convictions were later reversed by the Second Court of Appeals, which acquitted them. The State sought review.
- Central legal dispute: whether causing a county clerk to file/record a fraudulent statutory lien constitutes "causing another to sign or execute any document" by deception under § 32.46(a)(1).
- The State argues the word "execute," added to § 32.46(a)(1) in 1973, must be given effect and can encompass a clerk’s filing/recording when that filing perfects a statutory lien under the Property Code.
- The State also contends overlap between § 32.46(a)(1) (broad: sign or execute any document affecting property) and § 32.46(a)(2) (narrow: cause a public servant to file/record purported court documents) is permissible; focus should be on the deceptive document rather than the specific verb used.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Liverman) | Held (Court of Appeals / posture) |
|---|---|---|---|
| Whether causing a clerk to file/record a fraudulent statutory lien constitutes "causing another to sign or execute any document" under Tex. Penal Code § 32.46(a)(1) | "Execute" is broader than "sign"; filing/recording by the clerk perfects a statutory lien (Property Code) and thus is execution for § 32.46(a)(1) purposes | The plain meaning of § 32.46(a)(1) does not cover causing a clerk to file/record a lien; filing/recording fits only § 32.46(a)(2) language | Second Court of Appeals acquitted (holding § 32.46(a)(1) did not apply); State urges reversal to treat clerk filing as execution |
| Whether overlap between § 32.46(a)(1) and § 32.46(a)(2) is impermissible (i.e., whether the differing verbs require exclusivity) | Overlap is permissible; (a)(1) broadly covers executed documents affecting property and (a)(2) narrowly targets fraudulent court-style filings; legislative history and punishment scheme support the State's reading | Different verbs imply different targeted conduct; the Legislature added (a)(2) to criminalize sovereign-citizen filings specifically, suggesting distinct reach | State argues the appellate court erred by elevating verb distinctions over statutory purpose; appellate court nonetheless interpreted plain text narrowly (acquittal) |
Key Cases Cited
- Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012) (overlapping statutory provisions can both apply; courts should not read them as mutually exclusive)
- Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) (every word in a statute should be given meaning in statutory construction)
- Harris v. State, 359 S.W.3d 625 (Tex. Crim. App. 2011) (presumption that each statutory word has a purpose; give effect where reasonable)
- DeWitt v. Harris Cnty., 904 S.W.2d 650 (Tex. 1995) (different statutory language in different subsections may imply different meanings, but broader provisions can encompass narrower ones)
- CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. 2002) (distinction between constitutional liens and statutory liens; statutory liens require compliance with filing/perfection rules)
- Trinity Drywall Sys. v. TOKA Gen. Contrs., Ltd., 416 S.W.3d 201 (Tex. App.—El Paso 2013, pet. denied) (statutory lien validity depends on compliance with Property Code procedures)
- Wiesman v. State, 269 S.W.3d 769 (Tex. App.—Austin 2008) (purpose of § 32.46(a)(1) is to protect documentary integrity and punish fraudulent use of documents to defraud)
- Liverman v. State, 447 S.W.3d 889 (Tex. App.—Fort Worth 2014) (appellate opinion acquitting Aaron Liverman under § 32.46(a)(1)); Liverman v. State, 448 S.W.3d 155 (Tex. App.—Fort Worth 2014) (same for Roger Liverman)