Texas Penal Code 32.46 – Fraudulent Securing of Document Execution

WHAT IS FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS?

The law against fraudulent securing of document execution prohibits inducing or deceiving another into signing or executing any document affecting property, a service, or any person’s pecuniary interest.

A person also commits an offense by inducing or deceiving a public servant into filing or recording a document purporting to be a judgment, order, directive, or process of a court, or judicial officer or entity.

WHAT IS THE FRAUDULENT SECURING OF DOCUMENT EXECUTION LAW IN TEXAS?

Tex. Penal Code § 32.46. FRAUDULENT SECURING OF DOCUMENT EXECUTION

(a) A person commits an offense if the person, with the intent to defraud or harm any person:

(1) causes another person, without that person’s effective consent, to sign or execute any document affecting property or service or the pecuniary interest of any person; or

(2) causes a public servant, without the public servant’s effective consent, to file or record any purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of:

(A) a purported court that is not expressly created or established under the constitution or the laws of this state or of the United States;

(B) a purported judicial entity that is not expressly created or established under the constitution or laws of this state or of the United States; or

(C) a purported judicial officer of a purported court or purported judicial entity described by Paragraph (A) or (B).

(b) An offense under Subsection (a)(1) is a:

(1) Class C misdemeanor if the value of the property, service, or pecuniary interest is less than $100;

(2) Class B misdemeanor if the value of the property, service, or pecuniary interest is $100 or more but less than $750;

(3) Class A misdemeanor if the value of the property, service, or pecuniary interest is $750 or more but less than $2,500;

(4) state jail felony if the value of the property, service, or pecuniary interest is $2,500 or more but less than $30,000;

(5) felony of the third degree if the value of the property, service, or pecuniary interest is $30,000 or more but less than $150,000;

(6) felony of the second degree if the value of the property, service, or pecuniary interest is $150,000 or more but less than $300,000; or

(7) felony of the first degree if the value of the property, service, or pecuniary interest is $300,000 or more.

(c) An offense under Subsection (a)(2) is a state jail felony.

(c-1) An offense described for purposes of punishment by Subsections (b)(1)-(6) and (c) is increased to the next higher category of offense if it is shown on the trial of the offense that the offense was committed against an elderly individual or involves the state Medicaid program.

(e) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this section that involves the state Medicaid program.

WHAT IS THE PENALTY CLASS FOR FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS?

The penalty category for fraudulently causing a public servant to execute a purported judicial document under Subsection (a)(2) is a state jail felony, punishable by 180 days to two years in a state jail facility. Fraudulently securing document execution under Subsection (a)(1) depends on the value of the property, service, or pecuniary interest affected. If the value is:

• Less than $100:
  • Class C misdemeanor, punishable by up to a $500 fine, and no jail time;
• $100 to $749:
  • Class B misdemeanor, punishable by up to 180 days in county jail;
• $750 to $2499:
  • Class A misdemeanor, punishable by up to one year in county jail;
• $2500 to $29,999:
  • State jail felony, punishable by 180 days to two years in a state jail facility;
• $30,000 to $149,000:
  • Third degree felony, punishable by two to ten years in prison;
• $150,000 to $299,999:
  • Second degree felony, punishable by two to 20 years in prison;
• $300,000 or more:
  • First degree felony, punishable by five to 99 years or life in prison.

WHAT IS THE PUNISHMENT RANGE FOR FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS?

The punishment range for fraudulently causing a public servant to execute a purported judicial document under Subsection (a)(2), a state jail felony, is 180 days to two years in a state jail facility, and a maximum fine of $10,000. Fraudulently causing another to execute a document under Subsection (a)(1) increases with the value of property, service, or pecuniary interest affected:

• Class C misdemeanor, if the value is less than $100:
  • maximum fine of $500, no jail time;
• Class B misdemeanor, if the value is $100 or more but less than $750:
  • up to 180 days in jail, maximum fine of $2,000;
• Class A misdemeanor, if the value is $750 or more but less than $2,500:
  • up to one year in jail, maximum fine of $4,000;
• State jail felony, if the value is $2,500 or more but less than $30,000:
  • 180 days to two years in a state jail facility, maximum fine of $10,000;
• Third degree felony, if the value is $30,000 or more but less than $150,000:
  • two to ten years in prison, maximum fine of $10,000;
• Second degree felony, if the value is $150,000 or more but less than $300,000:
  • two to 20 years in prison, maximum fine of $10,000;
• First degree felony, if the value is $300,000 or more:
  • five to 99 years or life in prison, maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS?

A person charged with fraudulently securing document execution may be eligible for probation after a conviction, or deferred adjudication without a conviction.

• What is the maximum length of probation for fraudulent securing of document execution in Texas? If a person is convicted of a Class C misdemeanor, the only punishment is a maximum fine of $500. But a person may be placed on probation for up to two years if convicted of a Class A or Class B misdemeanor.For state jail and third degree felony fraud charges, the probation term may range from two to five years, and may not exceed ten years for second degree and first degree felonies.

• What is the maximum length of deferred adjudication for fraudulent securing of document execution in Texas? To avoid a fraudulent securing of document conviction, a person may plead guilty or nolo contendere (“no contest”) to a judge, and be placed on deferred adjudication. The period of deferred adjudication may not exceed 180 days for a Class C misdemeanor, or two years for a Class A or Class B misdemeanor.The deferred adjudication term for a state jail felony is between two and five years, with the possibility of extending it up to ten years. The deferred adjudication term may not exceed ten years for first degree, second degree, and third degree felonies.

WHAT ARE THE DEFENSES TO FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS?

The statute does not specifically authorize defenses to fraudulent securing of document execution. A person accused thereof may assert any defense in an attempt to negate at least one of the elements the State must prove at trial. For example, an accused may argue he or she lacked the requisite intent to defraud or harm the victim in securing the document execution, and claim any discrepancy in the document execution was a mistake.

• What is “the intent to harm or defraud”? The intent to harm or defraud is not defined in the Penal Code, but is given its plain meaning, and may be inferred from the circumstances and common sense.In Singh v. State, a defendant who was stalking a victim broke into her home. Police caught him with her mail, and computer drives. He had apparently opened an account with a credit monitoring company in her name, and was convicted of fraudulent use or possession of identifying information. The account application had the victim’s name, date of birth, address, and social security number. She testified she believed, based on her experience with the defendant, he intended to harm her, which was sufficient to uphold the conviction.

WHAT IS THE STATUTE OF LIMITATIONS FOR FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS?

The limitation period for fraudulent securing of document execution is seven years.

FRAUDULENT SECURING OF DOCUMENT EXECUTION IN TEXAS

Fraudulent securing of document execution is fraudulently inducing another to sign or execute a document affecting the value of property, a service, or another’s pecuniary interest, with intent to defraud or harm. It also includes fraudulently inducing a public servant to file or record any purported judicial or court document.

TEXAS FRAUDULENT SECURING OF DOCUMENT EXECUTION COURT CASES

The case law regarding fraudulent securing of document execution in Texas illustrates the application of the statute.

• In Liverman v. State, the defendant’s daughter hired him to remodel her home, but later fired him, and accused him of trying to take over her tile company. The defendant filed mechanic’s lien affidavits in the Denton County Clerk’s Office, which were filed and recorded. Because of the misrepresentations in the affidavits, the State charged the defendant with causing another to “sign or execute” documents with intent to harm or defraud the victim, and he was convicted.The Court of Criminal Appeals reversed, explaining the county clerk employee did not “sign or execute” anything; she recorded the affidavits, which is different than what was alleged.

• In Walker v. State, the defendant owned an electric company, and provided false invoices to the Chief Financial Officer of the Beaumont Independent School District. The CFO signed checks payable to the defendant for work he lied about doing, and the jury convicted him of fraudulently causing another to execute a document affecting Beaumont ISD’s pecuniary interest. The appellate court affirmed, explaining that BISD paid the defendant based on false invoices, which caused the school district a pecuniary loss.