Pro Se Prevails Over State Statute
Fri Feb 2, 2007 22:06

-------- Original Message --------
Subject: Pro Se Prevails Over State Statute
Date: Fri, 02 Feb 2007 20:09:17 +0000
From: Legal Reality

2 February A.D. 2007

Pro Se Prevails Over State Statute
by Harmon L. Taylor

McKinney, Texas--On 3 January, roughly a month ago, County Court at Law No. 2 of Collin County dismissed the Class A misdemeanor charge that the Collin County DA's Office had filed against Richard John Florance, Jr., of Richardson. The DA's Office had charged Florance under TX Penal Code 32.49 "refusal to execute release a fraudulent lien or claim."

Florance first learned of the charge against him when received the Sheriff's notice, dated April Fool's Day (1 April A.D. 2006), which was a Saturday, on or about the 3d of April.

"It's not a lien," Florance said. "It's a Notice of Lien. The County Records are full of the IRS' Notices of Lien. So, why is it a crime for me to file a Notice of Lien, which federal law requires secured creditors to file, but not for IRS agents?"

Florance had filed the Notice of Lien in a civil matter which was also in the Collin County Courts at Law. In that civil matter, Florance and his daughter had requested mandamus and declaratory judgment. County Court at Law No. 1 of Collin County never even set the mandamus for a hearing, and dismissed both actions for lack of jurisdiction.

The Florances filed their Motion for New Trial in that civil matter, but had not included the filing fee. The law requires the Clerk to file the motion and then promptly give notice of the need to submit the appropriate fee. Instead, the Collin County Clerk's Office returned the motion to the Florances. Florance promptly resubmitted that motion, with the fee.

When the Collin County Clerk's Office received the motion for the second time, the Clerk's Office informed Florance that they had received the fee, but not also the motion, i.e., that the envelope was empty, except for the cover memo and the fee. "Someone in that [clerk's] office must have known what was going on, because someone sent the motion back to me, in the mail, in a Collin County envelope," Florance recalls vividly. "It's possible that they overheard my call to the FBI that I made right there from the Clerk's Office."

In full expectation that the appellate court clerk would make inquiry into the timing of the motion, which Florance then submitted for the third time, and which the Collin County Clerk's Office finally filed, Florance prepared a Probable Cause Affidavit. That Probable Cause Affidavit includes evidence from the Post Office receipt of the weight of the envelope that he mailed, which was considerably more than just a cover letter and a money order. When the Clerk for the Fifth District Court of Appeals did make inquiry, Florance promptly submitted his Probable Cause Affidavit. In due course of time, the appellate court Clerk determined that the Florances' Motion for New Trial had been filed timely. The appeal proceeded in the normal course.

In the opinion on that appeal, the court fully supported the Clerk's original determination. The court addressed the timing issue, because STATE OF TEXAS, through its Attorney General's Office, had objected, saying that the appeal was untimely, because the motion for new trial was late. The appellate court disagreed, and, considering the appeal timely, they characterized STATE's position as "without merit."

Florance considered the matter to be rather blatant criminal Record tampering by the Clerk's Office from the beginning, which conduct may be a violation of 36.05, or of 37.01, or of 37.10, or, potentially, all three. For that reason, Florance refused to finance the Clerk's Office's criminal conduct. When the Clerk's Office demanded payment for the preparation of the Record on appeal, a $129 charge, Florance submitted payment acceptable to the Clerk's Office and also filed in the Record of that civil case the Notice of Lien.

In response to that filing, Florance received a demand that he release his "fraudulent lien," accompanied with the threat that if he didn't release his lien, he'd face criminal charges. Florance purposefully ignored that demand. That demand basically threatens criminal charges solely for the purpose of settling a commercial matter, which instantly violates TX Disciplinary Rules of Professional Conduct 4.04, which reads as follows:

Rule 4.04 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer shall not present, participate in presenting, or threaten to present:
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.


That threat was carried out, but to no avail. The court dismissed that criminal case.

In the "Notice of Lien" case, Florance had filed a motion to dismiss and a motion to quash. The court heard those motions on 16 November. On or about 21 December, which, considering the holidays, was within 30 days of the trial setting of 22 January, the DA requested leave to amend the Information. Florance objected to the proposed amendments, and again moved to dismiss and to quash. The DA got his motion for leave to amend set for hearing on 3 January, which, for this particular court, was rather short notice, and the court also commented on the shortness of Notice. It was during that hearing that the court first granted STATE leave to amend, because applicable rules fairly well required that result, but then dismissed the case.

The trial judge painstakingly set out the basis for his decision, ultimately saying that the statute was vague.

"There really are jurists in this state who hear the pro se's positions." "I very much appreciate the time that this judge invested in this case. There was a lot of work involved on both sides of the bench, since these issues had never been raised before."

This was a case of first impression in Collin County, and the issues Florance presented were issues of first impression state wide. There are only a few other cases that have involved TX Government Code 51.901, and only one other case that also involved TX Penal Code 32.49. Government Code 51.901 was first added in 1997, and the most recent amendments were effective in September, 2003. It reads as follows:

Sec. 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.

Penal Code 32.49, which incorporates Government Code 51.901, was also first added in 1997, and it has not been amended since its introduction. It reads as follows:

Sec. 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.

"It simply makes no sense that they would even file this charge against me," Florance reflects. "The basis for my claim, for which the lien both attached and perfected by operation of law, is the criminal conduct committed by their very own clerks against my daughter and me."

The Collin County DA's Office has still, to date, filed no charges against anyone in the Collin County Clerk's Office, or against the lawyer who wrote and sent Florance that demand letter threatening him with the criminal charge. Penal Code 36.05 reads as follows:

Sec. 36.05. TAMPERING WITH WITNESS.

(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.

(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).

(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.

(d) An offense under this section is a state jail felony.

Penal Code 37.09 reads as follows:

Sec. 37.09. TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE.

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

(b) This section shall not apply if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.

(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree. An offense under Subsection (d)(2) is a Class A misdemeanor.

(d) A person commits an offense if the person:
(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense; or
(2) observes human remains under circumstances in which a reasonable person would believe that an offense had been committed, knows or reasonably should know that a law enforcement agency is not aware of the existence of or location of the remains, and fails to report the existence of and location of the remains to a law enforcement agency.

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 reco

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