Cont'd - Pro Se Prevails Over State StatuteFri Feb 2, 2007 22:09
Penal Code § 37.10 reads as follows:
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD.
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.
(b) It is an exception to the application of Subsection (a)(3) that the governmental record is destroyed pursuant to legal authorization or transferred under Section 441.204, Government Code. With regard to the destruction of a local government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code.
(1) Except as provided by Subdivisions (2) and (3) and by Subsection (d), an offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony.
(2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was a public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the second degree.
(3) An offense under this section is a Class C misdemeanor if it is shown on the trial of the offense that the governmental record is a governmental record that is required for enrollment of a student in a school district and was used by the actor to establish the residency of the student.
(d) An offense under this section, if it is shown on the trial of the offense that the governmental record is described by Section 37.01(2)(D), is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the defendant is convicted of presenting or using the record;
(2) a felony of the third degree if the offense is committed under:
(A) Subsection (a)(1), (3), (4), or (6); or
(B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and
(3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor's intent in committing the offense was to defraud or harm another.
(e) It is an affirmative defense to prosecution for possession under Subsection (a)(6) that the possession occurred in the actual discharge of official duties as a public servant.
(f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government's purpose for requiring the governmental record.
(g) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of governmental records or blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government.
(h) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.13, the actor may be prosecuted under any of those sections.
(i) 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.
There is an email still circulating that discusses TX Penal Code § 32.49. That information is very misleading. The email suggests that the purpose of the statute is to allow the charging and jailing of IRS agents. The opposite is true. The intent of the statute is to jail those who know that something is wrong with the current operations within government, and who try to do something about it, but who don't know exactly how to assert or articulate their claims. Thus, pro se litigants, not IRS agents, are the intended defendants. Further, that statute was not passed "recently." It was first added in 1997. It has never been amended. The most recent amendments are to the related Government Code section, which amendments were effective in 2003.
To view this politically, the objective of the TX statute was to justify jailing Republic of Texas members who participated in the lien filing craze of a decade ago or so. That practice started with the Van Dyke "Commercial Lien" process, in response to which STATE OF COLORADO was likely the first of the STATES to criminalize the filing of certain liens.
STATE OF TEXAS has filed its notice of appeal in the Florance case. Despite the fact that there were at least three hearings, STATE OF TEXAS designated only one of them, the last one, from which came the dismissal order, in its request for transcripts. Florance has submitted his request that the entire case be heard on appeal, rather than just the last hearing.
Mr. Florance consented to this interview provided that readers be asked not to contact him or his daughter concerning this case. He does not feel that he is in a position to teach the details of defending oneself in court.
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