Texas Penal Code 32.49 – Refusal to Execute Release of Fraudulent Lien or Claim
WHAT IS REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS?
The Texas law against refusal to execute release of fraudulent lien or claim prohibits an owner, holder, or beneficiary or a purported lien or claim from refusing to release a lien after requisite notice has been provided, with intent to defraud or harm another.
WHAT IS THE REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM LAW IN TEXAS?
Tex. Penal Code § 32.49. REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM.
(a) A person commits an offense if, with intent to defraud or harm another, the person:
(1) owns, holds, or is the beneficiary of a purported lien or claim asserted against real or personal property or an interest in real or personal property that is fraudulent, as described by Section 51.901(c), Government Code; and
(2) not later than the 21st day after the date of receipt of actual or written notice sent by either certified or registered mail, return receipt requested, to the person’s last known address, or by telephonic document transfer to the recipient’s current telecopier number, requesting the execution of a release of the fraudulent lien or claim, refuses to execute the release on the request of:
(A) the obligor or debtor; or
(B) any person who owns any interest in the real or personal property described in the document or instrument that is the basis for the lien or claim.
(b) A person who fails to execute a release of the purported lien or claim within the period prescribed by Subsection (a)(2) is presumed to have had the intent to harm or defraud another.
(c) An offense under this section is a Class A misdemeanor.
WHAT IS THE PENALTY CLASS FOR REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS?
Refusing to execute a release of a fraudulent lien or claim is a Class A misdemeanor, punishable by up to one year in county jail.
WHAT IS THE PUNISHMENT RANGE FOR REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS?
The punishment range for refusal to execute a release of a fraudulent lien or claim, a Class A misdemeanor, is up to one year in jail, and a maximum $4,000 fine.
WHAT ARE THE PENALTIES FOR REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS?
A person charged with refusing to execute a release of a fraudulent lien or claim may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed two years.
WHAT ARE THE DEFENSES TO REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS?
The statute does not authorize specific defenses to refusing to execute a release of a fraudulent lien or claim. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.
A person is presumed to intend to harm or defraud another if he or she fails to execute a release within 21 days of receiving notice.
- What is a fraudulent lien or claim? According to Texas Government Code Section 51.901(c)(2)(B), documents or instruments are presumed to be fraudulent if they purport to create lien or assert a claim against real or personal property, or an interest therein, and are “not created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person.”
Fraudulent documents also include those not created by a real court or judicial entity, or one established under the constitution or laws of Texas or the United States.
WHAT IS THE STATUTE OF LIMITATIONS FOR REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS?
The limitation period for refusal to execute a release of a fraudulent lien or claim, a Class A misdemeanor, is two years.
REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM IN TEXAS
Refusal to execute release of a fraudulent lien or claim punishes a person for failing to release a false lien after requisite notice has been provided. The person need not have created or executed the false lien to be convicted of failing to release it, but the State must show the person who failed to release the lien did so with the intent to defraud or harm another.
TEXAS REFUSAL TO EXECUTE RELEASE OF FRAUDULENT LIEN OR CLAIM COURT CASES
The case law regarding refusal to execute release of fraudulent lien or claim in Texas illustrates the statute’s application.
- In Bowles v. State, the defendant and victim were involved in contentious civil litigation. The defendant filed a claim of lien on real property owned by the victim, but accompanying documents expressly stated: “there is no valid lien or claim created by this documentation or instrument.” The victim’s attorney notified the defendant, and requested he release the fraudulent lien, but he refused. The jury convicted him of refusing to release a fraudulent lien, and the appellate court affirmed.
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CHARGES DISMISSED
DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
CHARGES DISMISSED
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
CHARGES DISMISSED
DWI 2nd
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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