## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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R O G E R L I V E R M A N A N D A A R O N L I V E R M A N , A p p e l l a n t s

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E S E C O N D C O U R T O F A P P E A L S

D E N T O N C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E A S L E R , H E R V E Y , A L C A L A , R IC H A R D S O N , Y E A R Y a n d N E W E L L , J J . , j o i n e d . J O H N S O N , J . , c o n c u r r e d . M E Y E R S , J . , d i s s e n t e d .

We must deter

mine whether a person commits the crime o f s ec u ri ng the execution of documents by dece ption whe n he files a fa lse mecha nic’s lien af

fidavit with the county

cler k. We conclude that such a person does not commit that crime beca use he does not cause “anothe r” to “execute” a docume nt affe cting proper ty or pec uniary

interests.
I. BACKG ROUND
A. F acts and Trial Appellants filed mecha

nic’s lien aff

idavits in t h e De n t o n County Clerk’s Offic e. TheseLIVERMAN — 2

aff idavits alleg ed that appellants had perf ormed “labor and/or materia ls” worth a cer tain amount of

mon ey o n t h e home of Kather y n Pay ne. As a result of t hese filings, t he S tate charg ed appellants 1
with secur ing the execution of documents by dece ption. The indictments alleg ed that ap p el l ants

cause d Cy

nthia Mitchell, the county cler k, to sign or execut e the mecha nic’s lien aff

idavits. Appellants we re c onvicted, fine d, and plac ed on community supervision. 2 B. App eal The court of appea ls reve rsed appellants’ convictions and rende red judgme nts of acquittal. 3
The court held that the evidenc e was leg ally insufficient to s upport the convictions beca use “the conduct of the court cler

k filing and rec ording ” the mecha nic’s lien aff

idavit in eac h case “wa s not the signing or executing of a document as contemplated by subsection 32.46(a) (1).” I n arr iving at 4
this conclusi o n , t h e court of appea ls held that it need look no further than the two subsections of Penal C ode § 32.46. The c ourt observe d that subsection (a )(1) uses the verbs “sig n and ex ecute ” 5
while subsection (a) (2) uses the v er b s “f ile and rec ord.” Presuming that the leg islature intends 6

Roge r L iverman alleg ed the amount of $45,000 while Aar on L iverman alleg ed the amount 1 of $12,000. Roge r L iverman was fined $5,000 and place d on community supervision for t en y ea rs . 2 Aar on L iverman w as fined $500 a nd place d on community

supervision for two y ear s. Liverman v. State , 448 S.W .3d 155, 159 (Tex. App.–For t Worth 2014) (Rog er L iverman’ s 3 case ); Liverman v. State , No. 02-13-00177- CR, 2014 Tex. App. L EXI S 11249, *8 (Oc tober 9, 2014) (not desig nated for publication) (Aa ron L iverman’ s case ). Be cause the rea soning in the opinions is virtually identical, we will here inafter cite only to the published opinion in Roge r L iverman’ s case . Liverman , 448 S.W .3d at 158. 4 Id. 5 Id. 6LIVERMAN — 3

d i ffe rent meaning s when it uses differ ent lang uag e in differ ent parts of the statute, th e co u rt conclude d that the acts of signing and executing must not include the acts of filing and rec ording

. 7
The court of appea ls a lso r ejec ted the State’s arg ument that the cler k’s act of signing a cover sheet constituted a sufficient signa ture to invok e t he st atute because the appellants wer e not char g ed by their indictments with having cause d the cler k to sign or e x ecute a cove r shee t. 8
C. P artie s’ Argum ents On di scre tionary revie w, t he S tate contends that a clerk’s actions of fili ng an d re cording a lien equate to “sig ning or executing” under § 32.46(a) (1) and t h at the leg islature intended to criminalize such activity under th at p ro vision. The State arg ues that “execute” must mean 9 something differ ent or broade r than “sig n” beca use “execute” was i n cl u d ed in the statute for a

rea son. The State further arg ues that the use of the verbs “file and rec ord” in § 32.46(a) (2) does not
prec lude g ivin g o v er l ap p i ng meaning to the verb “execute” in § 32.46(a) (1) beca use of other signific ant differ ence s betwee n the two subsections: The State o b s e r v e s th a t s u b s e c tion (a) (1) applies broadly to any document that is executed while subsection (a) (2) applies only to a narr ow situation involving documents from fake courts. And the State observe s that conduct under subsection (a) (2) is subject to only a single punishment while conduct under subsection (a) (1) is subject to a slidingscale punishment scheme.

Id. 7 Id. at 158-59. 8 The State’s questions for revie w are : (1) “Was it the L eg islature’s intent under Texas Penal 9 Code section 32.46(a) (1) to criminalize the act of causing a court cler k to file and rec ord a fra

udulent lien? ” and (2) “Doe s a cler k’s actions of filing and rec ording a lien equate to ‘sig ning or executing’ under Te x as Penal Code se ction 32.46(a) (1)? ”LIVERMAN — 4

T h e S tate also arg ues that “execute” means “to put completely into eff ect” or “to perf

orm what is require d to g ive validi t y t o . ” Under this definition, the S tate contends, the clerk executed the mecha

nic’s lien aff

idavits, as contemplated by subsection (a )(1) , by filing and rec ording them, b ec ause those acts wer e nece ssary to put the liens into eff ect towards subsequent purcha s er s . By
contra st, the S tate contends, do cu m en t s from fake courts, cover ed by subsection (a)(2), can never be executed beca

use they cannot be leg ally put into eff ect. So, the State rea sons, the verbs “file” and
“re cord” wer e included in subsection (a) (2) beca use some verb other than “execute” was neede d, but this does not prec lude “execute” from encompa ssing t h e acts of filing and rec ording in an
appropr iate ca se. The State also arg ues that t h e l egi slative history of the 1997 amendments that added subsection (a) (2) reve al an intent to punish people who file fra udulent documents, including liens. And the State arg ues that the court of appea ls’s holding leads to an absurd result, beca use construing the Penal Code to promote justice would entail making the filing of a fra udulent lien a crime, but if appellants’ actions of fili n g false liens are not crimes under § 32.46(a) (1), “ther e is not another section under which this specific crime would fall.” Although a pro s ec u t i o n under Penal Code §
32.49 for failing to rele ase a fra udulent lien might have been viable if the victim ha d convey ed the requisite notice to appellants and they had ref used to rele ase t h e l i en s , t h e State arg ues that appellants, as the ones who filed the fra udulent liens, should be held criminally responsible
reg ardle ss of whethe r the victim asks for a re lease

. Appellants respond that the county cler k play s no role in m ak i n g a mechanic’ s lien valid. Rely ing upon lang uag e in the proper ty code that a cler

k’s failure to rec ord or index a mecha nic’s lien does not invalidate it, appellants contend that a lien’s validity turns, not on the actions of the cler k,LIVERMAN — 5

but on the compliance of the person seeking to perf ect it. Appellants further arg ue that mecha nic’s liens are self-e x ecuting and that “the rec ording of an aff idavit in support of a claim of lien is entirely unrela ted to its ‘finality , validity , or enfor cea bility ’ beca

use it does not ‘cha

ng e a leg al interest from

one form to another .’” They further contend that the leg islature believed it was nece ssary to amend § 32.46 to a dd subsection (a) (2) to c riminaliz e fra udulent filings. Appellants also contend that the “anothe r” who executes the document must be the person dece ived and that the person dece ived was the proper

ty owner (Pay

ne) not the cler

k (Mitchell). And appellants contend that § 32.49 provides

a way to punish someone who files a false mecha nic’s lien, assuming its notifica tion r equire ments

are met. They arg

ue that § 32.49, which cre ates a misdemeanor offe nse, is the more specific statute and should be c onstrued in pari materia with the broade r lang uag e of § 32.46( a)( 1).
II. ANALYSIS The usual standa

rd for revie wing the suffic iency of the e vidence to support a conviction is whether , afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational finder of fac t could have found the essential elements of the offe nse bey ond a rea sonable doubt. I n some 1 0

case s, howeve r, a sufficie ncy -of- the-e vidence issue turns on the meaning of the statute under which the defe ndant has been prosec uted. Does cer tain conduct actua lly constitute an offe nse under the 1 1

s t atute with which the defe ndant has been char g ed? That question, like all statutory constructi o n

Ja ckson v. Virginia , 443 U.S. 307, 319 (1979); Murray v. State , 457 S.W .3d 446, 448 1 0 (Tex. Crim. App. 2015). Moore v. State , 371 S.W .3d 221, 227 (Tex. Crim. App. 2012) (“[A]ppellate construction 1 1 of a statute may be nece ssary to resolve an evidenc e-suf ficienc y complaint when alterna tive stat utory interpre tations would y ield dissimi lar outcome s.”).LIVERMAN — 6

questions, is a question of law, whic h we r eview de novo

. 1 2
I n construing a statute, we g ive eff ect to the plain meaning of its lang uag e, unless the statute is ambig uous or the plain mea ning w ould lead to absurd r esults that the leg islature could not have possibly intended. I n deter mining plain meaning , we employ the rules of g rammar and usag e, and 1 3

we presume that ever

y word in a statute has been used for a purpose and that eac h word, clause , and
sentenc e should be g iven eff ect i f re as o n ab l y possible. I f a word or a phrase has acquir ed a 1 4
technica l or particula

r meaning , we construe the word or phrase acc ording ly

. I f, afte r using these 1 5
tools of construction, the lang uag e of the statute is ambig uous, we can resor t to extratex tual fac tors
to deter mine the statute’s meaning. “A m b i g uity exis ts when the statutory lang uag e may be 1 6 understood by rea sonably well-infor med persons in two or m ore differe nt senses.” E x t ra t ex t ual 1 7
fac tors include but are not limit ed to: (1) the object soug ht to be attained, (2) the circ umstances under which the statute was enac ted, (3) the leg islative history , (4) comm o n l aw o r former statutory provisions, including laws o n the same or simil ar subjects, (5) the conseque nces of a particula r construction, (6) administrative construction of the statute, and (7) the title (ca ption), prea

mble, and

See Johnson v. State , 423 S.W .3d 385, 394 (Tex. C ri m . Ap p . 2014) (“Statutory 1 2 construction is a que stion of law, which we revie w de novo.” ).

Y azdchi v. State , 428 S.W .3d 831, 837-38 (Tex. Crim. App. 2014); Boyk in v. State , 818 1 3 S.W .2d 782, 785 (Tex. Crim. App. 1991).

Y azdchi , 428 S.W .3d at 837. 1 4 Id. 1 5 Id. at 838. 1 6 Id. 1 7LIVERMAN — 7

emer g ency

provision. 1 8
The statute unde r which a ppellants wer e cha

rg ed—§ 32.46(a )(1) —provides: (a) A person commits an offe nse if, with intent to defr aud or harm any person, he, by dece ption: (1) cause s another

to sign or e x ecute any

document af

fec ting pr operty

or ser vice or the pec uniary

interest of a

ny person. 1 9
I n construing this statute, the court of a ppeals re lied upon § 32.46(a) (2), whic h provides: (a) A person commits an offe nse if, with intent to defr aud or harm any person, he, by dece ption:
* * * (2) cause s o r i n d u ce s a public serva nt to file or rec ord any purported judgme nt or other document purporting to memorialize or evidenc e an act, an order , a direc tive, or proc ess of: (A) a purported court that is not expressly cre ated or established un d er t he constitution or the laws of this state or of the United States; (B ) a pur ported judi cial entity that is not ex pressly cre ated or

established under

the constitution or laws of this state or of the U nited States; or (C) a purported judicial office r of a purpor t ed co u rt or purported judicial entity descr ibed by

Parag raph ( A) or ( B)

. 2 0
We ag ree with the State that the court of appea ls’s relianc e upon § 32.46(a) (2) is misplaced, and we also conclude , contra ry to various arg uments advanc ed by the parties, that the text and history of that subsection is simply in co n cl u s i v e with respe ct to the meaning of the term “execute” in §

Chase v. State , 448 S.W .3d 6, 11 (Tex. Crim. App. 2014). 1 8
T E X
. P E N A L C O D E § 32.46(a) (1). 1 9 Id. § 32.46(a) (2). 2 0LIVERMAN — 8

32.46(a) (1). The court of appea ls acc urate ly observe d that § 32.46(a) (1) contains the terms “sig n”

2 1
and “execute” while § 32.46(a) (2) contains the differ ent terms “file” and “re cord,” but we ag ree with the State that the use of differ ent terms in the se differ ent subsections does not mea n that the terms
cannot overla

p. And as the State explains, the leg islature might have thought that the ty pes of d o cuments at issue in § 32.46(a) (2), being from fake or leg ally unrec og nized courts, wer e— o r at l ea s t m i gh t be—inca

pable of being executed. That does not mean that an act of “filing ” or “re cording ” could not, in an appropr iate case , also be an act of “executing .” Moreove r, § 32.46(a) (2) did not exis t until it was added in 1 9 9 7

. By contra st, the wording of the provision that is now 2 2
codified as § 32.46(a) (1) has rema ined unchang ed since it was enac ted in 1973. What the 2 3 leg islature thought o r intended when it enac ted a differ ent subsection in 1997 is not particula rly probative of

what it enac ted in 1973. 2 4
And beca use § 32.49 was enac ted in 1997, its exis tence also car ries litt l e weig ht in 2 5 construing the meaning of § 32.46(a) (1). Appellants, howeve r, arg ue that § 3 2

. 4 9 s h o u l d be

We need not dec ide whethe r some of the arg uments advanc ed would be pa rt of a pla in- 2 1 meaning analy sis, as opposed to a re view of e x tratextual factor s beca use, howe ver the fac tors are char acte rized, they

are inconclusive. See Chase v . State , 448 S.W .3d 6, 22 n.82 (Tex. Crim. App. 2014).

See Acts 1997, 75th L eg ., ch. 189, § 2. 2 2 See § 32.46(a) (Ve rnon 1974); Ac ts 1973, 63rd L eg ., p. 883, ch. 399, § 1. 2 3 See Chase , 448 S.W .3d at 27 (“What [a leg islator] thought about a statute that was not 2 4 being amende d is not controlling , nor, in the prese nt context, eve n p ar t i cu l arly persua sive. I t is axiom atic that one session of the leg islature does not ha ve the power to de clar e the intent of a past session, and a leg islative construction of an act of another leg islature is uniformly held to be entitled to litt le weig ht.”) (inter

nal quotation marks omitted). See Acts 1997, 75th L eg ., ch. 189, § 4 (e nacting T E X
. P E N A L C O D E § 32.49). 2 5LIVERMAN — 9

construed in pari materia with § 32.46(a) (1) and that § 32.49 should preva il in his case as the more specific (and later- enac ted) provision. But even when statutes are construed to be in pari materia , “any conflict b et we en their provisions will be harmoniz ed, if possible, and effec t will be given to all the provisions of eac h act if they can be made to stand toge ther and have concur rent eff icac y .” 2 6
Penal C ode § 32.49 cre ates an offe nse for a person who, “with intent to defr aud or harm another

.

. . owns or holds or is the benef iciary of a purported lien or claim

. . . that is fra udulent” and fails to rele ase the lien afte r the requisite notice called for in the statute. We ag ree with the State that this 2 7 provision can be harmonized with § 32.46(a) (1) by construing § 32.46(a) (1) to apply (as the mor e serious offe nse) to a person who cre ates a false lien and construing § 32.49 t o ap p ly (as the less serious offense) to a person who may not have c rea

ted the fa lse lien but fails to rele ase it afte r t he requisite notice ha s been pr ovided. Wit hout the encumbr ance of various other statutory provisions cited by the parties, then, we

now examine the meaning of the term “execute” found in § 32.46(a) (1). The Texas Supreme Court has def ined “e x ecute ” as me aning “to per form or c omplete (a c ontrac t or duty) . . . to cha ng e (a s a leg al interest) from one form to another

. . . or to make (a leg al document) valid by signing ; to bring (a leg al document) into its final, l eg ally enfor cea ble form.” The S upreme Court rec og nized that

2 8

t h i s formulation involves sever al definitions and that the term “execute” does not mean o n l y

Jones v . State , 396 S.W .3d 558, 561-62 (Te x . Crim. App. 2013). 2 6
T E X
. P E N A L C O D E § 32.49(a)

. 2 7 Mid-Continent Cas. Co. v. Global Enercom Mgmt. , 323 S.W .3d 151, 1 5 7 (T ex . 2010) 2 8 (quoting B L A C K ’ S L A W D I C T I O N A R Y (8th ed. 2004) ( brac kets omitted, ellipses in Mid-Continent ).LIVERMAN — 10

“sig n.” The observa tion that “execute” has a broade r meaning than “sig n” seems espec ially

2 9 applicable in a statute such as § 32.46(a) (1) that includes both the terms “sig n” and “execute.” We conclude that the S upreme Court’s definition of “e x ecute ” as “ to bring (a leg al document) into its final, leg ally enfor cea

ble form” se ems to be the a ppropriate one in the conte x t of § 32.46(a) (1). 3 0
The next question is whether the ty pe of document at issue here is “executed” —broug ht to its final, leg ally enfor cea

ble form—whe n it is filed with the county cler k. To perf

ect a mecha

nic’s
l i en under Chapter 53, Subchapter C, of the Property Code, a person must comply with ce rt ai n require ments. One of those require ments is that the person file a mecha nic’s lien aff

idavit with the 3 1 county cler

k. I t is the mecha

nic’s lien aff

idavit tha t is the ty

pe of document at issue in this case . 3 2
A mecha nic’s lien aff

idavit has no leg al eff

ect until it is filed. When it is filed, the aff idavit has the leg al eff ect of contributing to the perf ection of the mecha

nic’s lien under the Property Code. So the mecha nic’s lien af

fidavit is executed when it is filed.
I t is not enoug h, howeve r, to conclude that filing a mecha nic’s lien aff

idavit constitutes the execution of that aff

idavit. Under § 32.46(a) (1), the defe ndant must cause “anothe r” to execute the

Id. 2 9 This definition essentially confor ms to the definitions advance d by both parties, though 3 0 the parties arr ive at diverg ent conclusions reg arding the result of its application to the prese nt case .

T E X
. P R O P
. C O D E § 53.051 (“ T o perf ect the lien, a person must comply with this 3 1 subchapte r.”) ; Valdez v. Di a mo n d Shamrock , 842 S.W .2d 273, 274-75 (Tex. 1992) (op. on rehe aring ). T E X
. P R O P
. C O D E § 53.052(a) , (b) ( person “ claiming ” a lien “ must file an af fidavit with 3 2 the county cler

k of the county in which the proper ty is located” ); Valdez , 842 S.W .2d at 274 (“V aldez proper ly perf

ecte d his interest under the Code and is entitled to a lien on all of the proper ty cited in his mecha

nic’s lien af

fidavit.”).LIVERMAN — 11

document. The final issue, then, is who executes the mecha nic’s lien aff

idavit when it is filed. The 3 3 Property Code imposes upon the person “cla iming” the lien the obliga tion to “file” the aff idavit. 3 4 Clearly , then, the person claiming the lien “executes” the aff idavit when he files it. Does the county cler k also “execute” the aff

idavit by filing and rec ording it, as the State contends? We conclude that the answe r to that question is “no.” The Property Code require s the county cler k to rec ord and index
any mecha

nic’s lien aff

idavit that is filed, but it also provides that the “[f]ailure of the county cler k
to proper ly rec ord or index a filed aff idavit does not invalidate the lien.” This provision is simil ar 3 5

to the g ener al rule applicable to the filing of deeds that a deed is eff ective ag ainst subsequent purcha sers upon filing, even if the county cler k neg lects to rec ord it. There fore , the mecha nic’s lien 3 6
aff idavit become s leg ally eff ective upon filing, and the subsequent rec ording or indexi ng by the cler k does not in any

way alter the leg al ef

fec t of the filing

. The rema ining question, then, is whether the county cler k’s acc eptanc e of the document at the time of filing constitutes execution of the document by the cler k. We conclude that it does not. The Property Code char acte riz es t h e filing in question as the person claiming the lien filing the aff idavit “with the county

cler k.” This lang uag e in the Property Code descr ibes the county cler k 3 7

T E X
. P E N A L C O D E § 32.46(a) (1). 3 3
T E X
. P R O P
. C O D E § 53.052(a) , (b). 3 4 Id. § 53.052(c)

. 3 5 Throckmorton v. Price , 28 Tex. 605, 609-10 (1866). See also T E X
. L O C A L G O V ’ T C O D E 3 6 § 191.003 (“A n instrument f iled with a county cler

k for rec ording is c onsidered r ecor ded fr om the time tha t the instrument is filed.”)

. A county cler k is subject to f

inancial sanction if he or she fails to rec ord a doc ument as re quired by law. T E X
. P R O P
. C O D E § 11.004(b). T E X
. P R O P
. C O D E § 53.052(a) , (b). 3 7LIVERMAN — 12

as a mere rec ipient of the filing; the cler k need not have any active involvement in that occur renc e. For many courts, electronic filing is now pos sible, and in those situations the entire transa ction of

re ce i v i n g an d acknow ledg ing the filing may be handled by machine. We conclude that it is t h e 3 8 filing person, not the cler

k, who bring s the mecha

nic’s lien aff

idavit into its final, leg ally enfor cea ble form. Be cause the county cler k does not execute the mecha nic’s lien aff

idavit when the aff

idavit 3 9
is filed, the appellants did not cause “anothe r” to “execute” the documents at issue in the prese nt

case . Consequently , we ag ree with the court of appea ls that the evidenc e is leg ally insufficient to 4 0 support the conviction, and w e af firm its judgment. Deliver ed: September

23, 2015 Publis h

See T E X
. G O V ’ T C O D E § 51.804.

3 8 Nothing in this opinion should be interpre ted as construing the meaning of the word “file” 3 9 as it appea

rs in § 32.46(a) (2). We disag ree with the State that construing § 32.46(a) (1) as not apply ing to a defe ndant’s 4 0 filing of a false mecha

nic’s lien aff

idavit means that no statute applies to that sort of conduct. The offe nse of tampering with a g overnme ntal rec ord penalizes someone who “knowing ly makes a false entry in .

. . a g overnme ntal rec ord,” who “make s, prese nts, or uses any rec ord, document, or thing with know ledg e of its fa lsity and with intent that it be taken as a g enuine g overnme ntal rec ord,” or who “make s, prese nts, or uses a gove rnmental recor d with knowledg e of its falsity .” T E X
. P E N A L C O D E § 37.10(a) (1), (2), (5); see also Stringer v. State , 632 S.W .2d 340, 342 (Tex. Crim. App. 1982) (def endant filed an aff

idavit with the county cler k that contained false statements reg arding proper ty he owned)

. A g overnme ntal rec ord includes “any thing belong ing to, rec eived b y , o r k ep t by g overnme nt for info rm ation, including a court rec ord.” T E X
. P E N A L C O D E § 37.01(2)( A). I f the offe nse of tampering with a g overnme ntal rec ord is committed “with intent to defr aud o r h arm another ,” it is a state-jail felony , at least absent other specia l circ umstances outlined in § 37.10. Id. § 37.10(c) (1).