Honorable Harold B. Parish, Chairman opinion NO. w-613 

Privileges, Suffrage and Elections Committee 

House of Representatives Re: Whether or not there 

Austin, Texas could~be convictions for 

false swearing or perjury 

under the declaration 

,provisions to be signed 

by.the elector6 when not 

required to be notarized 

or upon affidavit of a 

witness. 

Dear Mr. Parish: 

YOUI' opinion request concerning Eouse Bill No. 86 and Committee 

Amendment No. 1 reads inpart as follows: 

"The Committee requests to be advised on the question,as to whether or not there could be convictions for 

false-witnessing or perijury under the declaration provisions to be signed by the electors when not required to 

be notarized or upon affidavit of a witness." 

House Bill No. 86 purports to amend Subdivision 4 of Section 37 of 

the 'Election Code of the State of Texas, compiled in Vernon's Revised Civil 

Statutes of Texas as the Election Code, Article 5.05. This bill reads in 

part as,follows: 

"Such elector shall mark the ballot, or it shall 

be marked.by a witness at the direction of said elector 

in case of the latter's inability to mark such ballot 

because of physical disability, inthe presence of a 

Notary Public or other persons qualified under the law to 

take acknowledgements, and in the presence of no other 

person except said witness and/or such officer, and in such 

manner that-such officer cannot know how the ballot is 

marked, and such ballot shall thenin the presence of such 

officer be folded by the elector or by said witness in case 

of physical disability of said elector, deposited in said 

envelope, the envelope securely sealed, the endorsement filled out, signed by the elector;"pr in case of physical disability, then by the said witness for and in behalf of said 

elector, and certified by such officer and then mailed by 

said officer, postage prepaid, to the county clerk." 

(mphasis added) 
Ronorable Harold B. Parish, Page 2. (w-613) 

Article 302 of Vernon's Penal Code of the State of Texas, reads as 

follows: 

"Perjury is a false statement, either written 

or verbal, deliberately and wilfully made, relating 

to something past or present, under the sanction of 

an oath, or such affirmationas is by law equivalent to an oath, where such oath.or affirmation is 

legally administered, under circumstances in which an 

oath or affirmation is required by law, or is necessary for the prosecution or defense of any private 

right, or for the ends of public justice." 

Article 310, 'Vernon's Penal Code, reads as follows: 

"If any person shall deliberately and wilfully, 

under oath or affirmation legally administered, 

make a false statement by a voluntary declaration 

or affidavit, which is not required by law or made 

in,the course of a judicial proceeding, he is guilty 

of false swearing, and shall be punished by confinement in the penitentiary not less than two nor more 

thanfive years." (Emphasis added) 

It should be noted that both Article 302 and Article 310 of Vernon's 

Penal Code require as anelement of prosecution that statements, declarations, 

etc., be made under oath or affirmation legally administered. It has been 

held that "the full force and effect of such statutes is to require that the 

State prove in all prosecutions for perjury in this state that the false 

statement was made under the sanction of an oath which had been legally ad- 

;;;+;itered". Leslie Lowry v. State of Texas, 297 S.W. 2d 848 (Tex. Grim. 

In Weadock v. State, 118 Tex. Grim. R. 537, 36 S.W. 2d 757, the 

Court held that to constitute a valid oath for the falsity of which perjury 

will lie, there must be, in the presence of a person authorized to administer 

it, an unequivocal act by,which affiant consciously takes upon himself the 

obligation of an oath. 

It would seem from the above authority that perjury convictions would 

lie where it could be proved by the State that an oath was actually taken by 

the affiant in.the presence of a persoriauthorised to administer such oath. 

The fact that the affiant signed a statement that appeared to be sworn to without the actual proof that he was in.fact sworn would not support a conviction 

of perjury. 

Committee Amendment No. 1 amends House Bill 86 so as to omit all 

reference to a'Wotary Public and other persons qualified under law to take 

acknowledgnents. 
Since the statement required by House Bill 86 as amended by Committee Amendment No. 1 is not to be made under oath or affirmation, a person 

making a false statement would not be guilty of "perjury" or "false swearing". 

Neither H. B. 86 nor Committee Amendment No. 1 contravenes any 

Constitutional provision. 

SUMMARY 

There could be no convictions for 

false swearing or perjury under 

the declaration provisions of H.B. 

86 or Committee Amendment No. 1 

signed by the electors when not 

made upon oath or affirmation ler 

gaily administered. H. B. 86 and 

Committee Amendment No. 1 are 

Constitutional. 

Very truly yours, 

WILLWIISON 

Attorney General of Texas 

Cecil Cammack, Jr. 

Assistant 

CC:aw 

OPINION COMMITTEE: 

Geo. P. Blackburn, Chairman 

Robert T. Lewis 

Zellner J. Turlington 

Thomas Burrus 

Wallace P. Finfrock 

REVIRWRDFORTREATTORNJ3Y GENERAL 

BY: 

Ii. V. Geppert