No. 05-07-00088-CR
Opinion issued August 31, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-81238-06.
Before Chief Justice THOMAS and Justices RICHTER and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice, Assigned.
This is an appeal by the State of the trial court's January 3, 2007 written order granting appellee Richard Florance's motion to dismiss the information in the case of State of Texas v. Richard John Florance. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon 2006). The issue we are asked to decide is whether the trial court erred in dismissing this case based on its conclusion the statute is unconstitutional as applied to appellee. Because we conclude the trial court reversibly erred in its legal conclusion that the statute is unconstitutional as applied, we reverse and remand this case to the trial court to be reinstated on its docket and for further proceedings consistent with this opinion.
The trial court's written dismissal order states specifically, "The court concludes that Section 32.49 of the Penal Code as it applied to this case, coupled with its reference and tying to Section 51.901(c) of the Government Code is and are void for vagueness. The court further concludes this defendant in this case is being denied due process by the statute's shifting the burden of proof in a criminal case."
In April 2007, this Court issued an opinion involving the same appellee in cause number 05-06-00992-CV styled In re A PURPORTED LIEN OR CLAIM AGAINST Collin County Clerk Brenda Taylor. Concluding the "purported lienholder" failed to preserve for appellate review his claim that government code provisions allowing ex parte review of an allegedly fraudulent lien violated his right to due process, where purported lienholder did not bring this claim to the attention of the trial court, this Court affirmed the trial court's "Judicial Findings of Fact and Conclusions of Law Regarding a Document Purporting to Create a Lien." The sections of the government code at issue in that case were sections 51.901 and 51.903. See Tex. Gov't Code Ann. §§ 51.901, 51.903 (Vernon 2005 Supp. 2006).
Background
Appellee was required to pay a $129 fee for preparation of a clerk's record for an appeal in a civil suit on behalf of his daughter. Finally, being faced with dismissal of the appeal if he did not pay the fee, appellee paid the fee. Three days later, appellee filed his "First Notice of Lien" against Collin County Clerk Brenda Taylor in the amount of $129. Appellee was advised, in writing, by an attorney on behalf of Collin County, the purported lien was illegal. Demand was made that he release the lien within twenty-one days. When appellee did not release the lien within twenty-one days, as demanded, the State charged appellee by information with refusal to execute release of a fraudulent lien or claim, a class A misdemeanor. See Tex. Pen. Code Ann. § 32.49 (Vernon 2003). The record is replete with various pretrial motions filed by appellee. In short, appellee argued below, and continues to argue on appeal, that section 32.49 of the Texas Penal Code is unconstitutional because section 51.901(c) of the Texas Government Code, referenced in penal code section 32.49, improperly shifts the burden of proof from the State to the appellee, requiring appellee to prove his innocence. This, appellee contends, violates his due process. See id.; Tex. Gov't Code Ann. § 51.901(c) (Vernon 2005). The trial court agreed with appellee. After granting the State's motion to amend the information, the trial court entered a written order dismissing the amended information. This State's appeal ensued. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1). On appeal, the State contends section 32.49 of the penal code is not unconstitutionally vague, nor does it impermissibly shift the burden of proof to a defendant. The State contends the statute clearly sets out what constitutes a fraudulent lien-one that is not authorized by state or federal law, consent of the parties, or a court with jurisdiction. The State further contends the permissive presumption is a rational one, does not bind the fact finder, and does not require rebuttal by the defendant; consequently, the permissive presumption does not violate a defendant's due process right by improperly shifting the State's burden of proof to the defendant. Standard of Review
Resolution of the issue before us does not turn on an evaluation of the credibility and demeanor of a witness; therefore, the trial court was in no better position than are we to make the required determination. We, therefore, review the issue before us de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App. 2004); Goodrich v. State, 156 S.W.3d 141, 145 (Tex.App.-Dallas 2005, pet. ref'd). The challenged section of the Texas Penal Code is set out below: § 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.
The challenged section of the Texas Government Code, referenced in section 32.49 of the penal code is set out below: § 51.901. Fraudulent Document or Instrument
(a) If a clerk of the supreme court, clerk of the court of criminal appeals, clerk of a court of appeals, district clerk, county clerk, district and county clerk, or municipal clerk has a reasonable basis to believe in good faith that a document or instrument previously filed or recorded or offered or submitted for filing or for filing and recording is fraudulent, the clerk shall:
(1) if the document is a purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of a purported court, provide written notice of the filing, recording, or submission for filing or for filing and recording to the stated or last known address of the person against whom the purported judgment, act, order, directive, or process is rendered; or
(2) if the document or instrument purports to create a lien or assert a claim on real or personal property or an interest in real or personal property, provide written notice of the filing, recording, or submission for filing or for filing and recording to the stated or last known address of the person named in the document or instrument as the obligor or debtor and to any person named as owning any interest in the real or personal property described in the document or instrument.
(b) A clerk shall provide written notice under Subsection (a):
(1) not later than the second business day after the date that the document or instrument is offered or submitted for filing or for filing and recording; or
(2) if the document or instrument has been previously filed or recorded, not later than the second business day after the date that the clerk becomes aware that the document or instrument may be fraudulent.
(c) For purposes of this section, a document or instrument is presumed to be fraudulent if:
(1) the document is a purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of:
(A) a purported court or a purported judicial entity not expressly created or established under the constitution or the laws of this state or of the United States; or
(B) a purported judicial officer of a purported court or purported judicial entity described by Paragraph (A); or
(2) the document or instrument purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and:
(A) is not a document or instrument provided for by the constitution or laws of this state or of the United States;
(B) is 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; or
(C) is not an equitable, constructive, or other lien imposed by a court with jurisdiction created or established under the constitution or laws of this state or of the United States.
(d) If a county clerk believes in good faith that a document filed with the county clerk to create a lien is fraudulent, the clerk shall:
(1) request the assistance of the county or district attorney to determine whether the document is fraudulent before filing or recording the document;
(2) request that the prospective filer provide to the county clerk additional documentation supporting the existence of the lien, such as a contract or other document that contains the alleged debtor or obligor's signature; and
(3) forward any additional documentation received to the county or district attorney.
Tex. Gov't Code Ann. § 51.901. Applicable Law
When we are confronted with an attack upon the constitutionality of a statute, we presume the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id. In the absence of contrary evidence, we will presume the legislature acted in a constitutionally sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002). If a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is impermissibly vague in all applications. State v. Holcombe, 187 S.W.3d 496, 499 (Tex.Crim.App.) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)), cert. denied, 127 S.Ct. 176 (2006). Analysis
No contrary evidence appears in this record. Appellee did not meet his burden to show the statute was unconstitutional as applied to him. We presume, therefore, the legislature acted in a constitutionally sound fashion in passing the challenged, and presumptively constitutional, statute. The trial judge reversibly erred in presuming otherwise. We reverse and remand this case for reinstatement of the information on the trial court's docket and for further proceedings consistent with this opinion. Void for Vagueness
The void-for-vagueness doctrine requires that a criminal statute define the offense with sufficient specificity that ordinary people can understand what actions are prohibited and in a manner that does not permit arbitrary and discriminatory enforcement. Holcombe, 187 S.W.3d at 499. A statute is not rendered vague merely because the words or terms are not specifically defined. Ahearn v. State, 588 S.W.2d 327, 338 (Tex.Crim.App. [Panel Op.] 1979). Words not defined are given their plain meaning, and the statute must be read in context and according to the rules of grammar and ordinary usage. State v. Sandoval, 842 S.W.2d 782, 787 (Tex.App.-Corpus Christi 1992, pet. ref'd) (citing Tex. Gov't Code Ann. § 311.011 (Vernon 1988)). Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence have been held not to be vague and indefinite. Id. (citing Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App. 1978)). Analysis
Under section 32.49, the prohibited conduct is the owning, holding, or being a beneficiary of a fraudulent lien or claim and refusing to execute the release of such lien within twenty-one days after receiving notice requesting a release of the lien or claim. Tex. Pen. Code Ann. § 32.49(a). If one engages in the prohibited conduct "with intent to defraud or harm another. . . ." that person commits a class A misdemeanor offense. Id. § 32.49(c). Section 51.901(c)(3) of the Texas Government Code, which is referenced in penal code section 32.49, defines "fraudulent." Tex. Gov't Code Ann. § 51.901(c)(3). We examine section 51.901(c) within the context in which it is found. Section 51.901(a) speaks not to the conduct of a person charged under section 32.49, but, rather, to the conduct of those persons named therein: "a clerk of the supreme court, clerk of the court of criminal appeals, clerk of a court of appeals, district clerk, county clerk, district and county clerk, or municipal clerk." Section 51.901(a) also imposes on those named individuals a reasonable good faith belief a document or instrument is fraudulent. Sub-section (a) then imposes a duty on the clerk to provide certain written notice to certain people. Section 51.901(b) imposes a duty on the clerk to provide such notice within a certain prescribed period of time. Section 51.901(c), referenced in penal code section 32.49, is the sub-section challenged here. More specifically, it is the presumption within that section that appellee challenges. Sub-section (c) creates a permissive presumption that a document or instrument is fraudulent if the document or instrument is one meeting certain criteria. The purpose of this permissive presumption is to enable the clerk to fulfil his or her duty imposed under sub-sections (a) and (b) of section 51.901. Section 51.901(d) then provides if the clerk, in reasonable good faith, believes a lien-creating document filed with his or her office is fraudulent, the clerk shall perform the acts described in (d)(1), (2) and (3). We conclude section 51.901 is not void for vagueness. It is specific in its terms. It does not substantially implicate constitutionally protected conduct or speech. The words used in the statute are words defined in dictionaries and have well-known meanings to persons of ordinary intelligence. When the words used in section 51.901 are given their ordinary meaning, the statute gives sufficiently definite notice to a clerk to enable him or her to perform the required clerical duties. Moreover, section 51.901 imposes no duty upon, nor does it prohibit any conduct of, a defendant charged under 32.49 for refusing to release a lien which, in a clerk's reasonable good faith, is presumptively fraudulent under section 51.901 of the Texas Government Code. And, it would seem to go without saying, that section 51.901 of the government code in no way shifts the State's burden of proof under section 32.49 of the penal code to prove beyond a reasonable doubt that a defendant committed a criminal offense under that section by refusing to release such a lien. Although section 51.901 appears to be the main focus of both appellee's and the trial court's attention, the trial judge's written order appears to conclude that both section 32.49 of the penal code and section 51.901 of the government code are unconstitutional as applied to appellee. The court's order states, in relevant part, "The court concludes that Section 32.49 of the Penal Code as it applied to this case, coupled with its reference and tying to Section 51.901(c) of the Government Code is and are void for vagueness." (emphasis supplied). Whether intentional or not, it is clear the trial court declared section 32.49 of the Texas Penal Code unconstitutional as applied to appellee. Thus, we turn now to address the constitutionality of that section under which appellee was charged. To the extent appellee complains about section 32.49's reference to section 51.901, we will not repeat our analysis of section 51.901 here, except to note that citation to another statute's definition of a particular term is not in itself unconstitutionally vague. Cf. State v. Ford, 179 S.W.3d 117, 123 (Tex.App.-San Antonio 2005, no pet.). Instead, we focus on the presumption contained within section 32.49(b) about which appellee briefly complains in his brief. That section provides: "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." (Emphasis supplied). That presumption must be read in conjunction with section 2.05 of the penal code. See Tex. Pen. Code Ann. § 2.05 (Vernon Supp. 2006). A presumption is an evidentiary device and, in criminal law parlance, is said to be either mandatory or permissive. Sandoval, 842 S.W.2d at 788 (citing Willis v. State, 790 S.W.2d 307, 309 (Tex.Crim.App. 1990)). The distinction between a mandatory presumption and a permissive presumption is determined by the effect that each has upon the evidence. Willis, 790 S.W.2d at 309. Mandatory presumptions are unconstitutional because they eliminate the State's burden of proving guilt beyond a reasonable doubt. Id. A permissive presumption allows, but does not require, the trier of fact to infer the elemental fact or ultimate fact from the predicate evidentiary fact or facts. Id. at 310. Because it does not relieve the State's burden of proving guilt beyond a reasonable doubt, a permissive presumption is generally deemed constitutional if the reviewing court determines that a rational trier of fact could make the connection permitted by the presumption. Id. The Texas Penal Code provides that presumptions in Texas are permissive. Id. Section 2.05 provides the consequences of a presumption created by the penal code. See Tex. Pen. Code Ann. § 2.05. It also sets out specific jury instructions to be given if the issue is presented to a jury. Id. One of those jury instructions is "that the facts giving rise to the presumption must be proven beyond a reasonable doubt." Id. Another instruction is, "that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find." Id. And, finally, it provides the State still "must prove beyond a reasonable doubt each of the other elements of the offense charged;" and "if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose." Id. As long as section 2.05 is adequately incorporated into the court's charge, a presumption will be construed as permissive. Sandoval, 842 S.W.2d at 788 (citing Willis, 790 S.W.2d at 310). Thus, we conclude the presumption in section 32.49(b), in conjunction with a correct jury charge, is permissive-just as the Sandoval court did with respect to section 38.12(b). See Sandoval, 842 S.W.2d at 788. Reading section 32.49 in conjunction with section 2.05, as we must, we conclude the statute is neither void for vagueness nor does it shift the State's burden of proving appellee's guilt of the charged offense beyond a reasonable doubt. And because we conclude a rational trier of fact could make the connection permitted by the presumptions in sections 32.49(b) and 51.901(c), respectively, we conclude that both section 32.49 of the Texas Penal Code and section 51.901(c) of the Texas Government Code are constitutional as applied to appellee. Accordingly, we reverse the trial court's order to the contrary and remand this case to the trial court for reinstatement of this cause on its docket and further proceedings consistent with this opinion.