Honorable Harold B. Parish, Chairman opinionNO. 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 ,provisionsto be signed by.the elector6when not required to be notarized or upon affidavit of a witness.
Dear Mr. Parish:

YOUI'opinion request concerningEouse 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 couldbe convictionsfor false-witnessingor perijury under the declarationprovisions to be signedby the electorswhen 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 inVernon'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 suchballot because of physical disability, inthe presence of a Notary Public or other persons qualifiedunder the law to take acknowledgements,and in the presence of no other person except saidwitness and/or such officer,and in such manner that-such officer cannot know how the ballot is marked, and suchballot shall thenin the presence of such officerbe folded by the elector or by saidwitness in case of physical disability of said elector, deposited in said envelope, the envelope securely sealed, the endorsementfilled out, signedby the elector;"pr in case of physical disability, then by the saidwitness for and in behalf of said elector, and certifiedby 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, eitherwritten

or verbal, deliberatelyand wilfully made, relating to somethingpast or present, under the sanctionof an oath, or such affirmationas is by law equivalent to an oath,where such oath.or affirmation is legally administered,under circumstances inwhich an oath or affirmation is requiredby 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 deliberatelyand wilfully, under oath or affirmation legally administered, make a false statementby a voluntary declaration or affidavit,which is not requiredby law or made in,the course of a judicialproceeding,he is guilty of false swearing,and shallbe punished by confinement in the penitentiarynot less than two nor more thanfive years." (Emphasisadded)
It shouldbe noted that both Article 302 and Article 310 ofVernon'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 statementwas 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.

InWeadock v. State, 118 Tex. Grim. R. 537, 36 S.W. 2d 757, the Court held that to constitutea 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 consciouslytakes upon himself the obligation of an oath.

It would seem from the above authority that perjury convictionswould lie where it couldbe proved by the State that an oath was actually taken by the affiant in.thepresence of a persoriauthorisedto administer such oath. The fact that the affiant signed a statementthat appeared to be sworn to without the actual proof that he was in.fact swornwould not support a conviction of perjury.

CommitteeAmendment No. 1 amends House Bill 86 so as to omit all reference to a'WotaryPublic and other persons qualified under law to take acknowledgnents.Since the statementrequiredby House Bill 86 as amended by Committee Amendment No. 1 is not to be made under oath or affirmation,a person making a false statementwould not be guilty of "perjury"or "false swearing". Neither H. B. 86 nor CommitteeAmendment No. 1 contravenesany Constitutionalprovision.
SUMMARY There could be no convictions for false swearing or perjury under the declarationprovisions of H.B. 86 or CommitteeAmendment No. 1 signedby the electorswhen not made upon oath or affirmation ler gaily administered. H. B. 86 and CommitteeAmendment 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