Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No.MW-582
Supreme Court Building
Criminal District Attorney
P. 0. BOX 12546
Austin, TX. 76711. 2546
500 Stemmons Tower East Re: Prosecution of cases
5121475-2501 2700 Stemmons Freeway involving fraudulently obtained
Telex 9101674-1367 Dallas, Texas 75207 food stamps
Telecopier 5121475-0266
Dear Mr. Wade:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 You advise that the Dallas County District Attorney's Office has
214/742-6944 recently encountered some difficulty in the prosecution of certain
welfare fraud cases where food stamps are fraudulently obtained.
Further, you inquire about the appropriate provisions of the Texas
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
Penal Code under which such cases should be prosecuted and which
9151533-3464 person or entity should be pleaded as the "owner" of the property
appropriated, i.e., food stamps, if charges are presented under the
Texas theft statute. Your letter also inquires about the legalities
1220 Dallas Ave., Suite 202
of pursuing s conviction against one charged with welfare fraud under
HOUS~O”, TX. 77002-6966
7131650.0666
those sections of the Penal Code dealing with "Securing Execution of a
Document by Deception", Penal Code section 32.46, and "Tampering with
a Governmental Record", Penal Code section 37.10. Your final question
606 Broadway, Suite 312 inquires whether the specificity of section 33.011 of the Human
Lubbock. TX. 79401.3479
Resources Code bars prosecution under the Texas Penal Code.
606,747.5238
The last question was resolved in Ex parte Mangrum, 564 S.W.2d
4309 N. Tenth. Suite 6 751 (Tex. Crim. App. 1978), which discussed the applicability of the
McAllen, TX. 78501.1665 Pub1.ic Welfare Act to the prosecution of welfare fraud cases. senate
5121662.4547 Bill No. 154, Acts 1977, 65th Legislature, chapter 235, at 637,
amended the Public Welfare Act of 1941, article 695c, V.T.C.S. [now
200 Main Plaza, Suite 400 codified in the Human Resources Code] to provide that offenses deleted
San Antonio. TX. 76205.2797 by that amendment are now chargeable under the offense of theft as set
5121225-4191 forth in section 31.03 of the Penal Code.
An Equal Opportunityl It is clear that conduct occurring after May 25,
Affirmative Action Employer 1977 (the effective date of Senate Bill 154).
formerly denounced as welfare fraud is properly
chargeable under the theft provisions of V.T.C.S.
Penal Code, Section 31.03. A comparison of old
Section 34 of Art. 695, V.T.C.S.. which provided
for a maximum penalty of a $100.00 fine or two
years confinement or both, and V.T.C.S. Penal
Code, section 31.03, reveals that in some
p. 2156
Honorable Henry Wade - Page 2 (MW-582)
circumstances the penalty will now be reduced and
in other circumstances it will be significantly
increased. Ex parte Mangrum, 564 S.W.2d 751, 756
(1978).
The change wrought by Senate Bill No. 154 and cases giving it
construction since May 25, 1977, fully dictate that certain acts or
omissions formerly proscribed under the Public Welfare Act are now
denounced under the theft provisions of Penal Code section 31.03.
Additionally, the severity of the offense will now determine whether
the defendant shall be charged with a misdemeanor or felony. For
example, one who misrepresents his earnings or employment to obtain
welfare benefits greater than $200 but less than $10,000 would now be
charged with a third degree felony. This offense would carry a
maximum punishment of ten years in prison or imprisonment and a $5,000
fine. Penal Code section 12.34. Should the amount appropriated be
less than $200 but greater than $20 the defendant would be charged
with a class A misdemeanor, an offense carrying a maximum penalty of
one year confinement or a $2,000 fine or both. Penal Code 912.21.
The obvious effect of Senate Bill No. 154 was to elevate certain acts
of conduct into the felony range of punishment. Ex parte Mangrum,
supra.
Assuming then that one who fraudulently obtains possession of
food stamps may be charged under Penal Code section 31.03, the
question of ownership merits discussion at this point. "Owner" is
defined in Penal Code section 1.07(24) three ways: (1) one having
title to the property, (2) possession of the property, whether lawful
or not, or (3) a greater right to possession of the property than the
actor. The law handed down in McGee v. State, 572 S.W.2d 723 (Tex.
Grim. App. 1978), required a showing that a defendant held a joint
interest in the property before the state could proceed under the
"greater right to possession" theory. This law has been expressly
overruled. It is clear from the court's ruling in Compton v. State,
607 S.W.2d 246 (Tex. Grim. App. 1980). that the "joint interest"
prerequisite has met its demise and the "greater right to possession"
theory has been expanded to include a greater class of persons to be
protected from theft. Compton v. State, supra.
The question of ownership and what interest, if any, is held by
the United States Government, the state of Texas, or the agencies or
employees of either has received some attention from the Code of
Federal Regulations. The Food and Nutrition Service of the Department
of Agriculture has been delegated the responsibility within that
department to administer the food stamp program. The responsibilities
delegated to the Food and Nutrition Service are to be carried out by
the administrator or some official of the Food and Nutrition Service
or by state agencies with respect to claims against households. 7
C.F.R. 5721.3 (1982). The state has been delegated the authority to
2157
Honorable Henry Wade - Page 3 (MW-582)
determine the amount of, and settle, adjust, compromise or deny all or
part of any claim which results from fraudulent or non-fraudulent
over-issuances to participating households. 7 C.F.R. §271.4(b)
(1982). Further, state agencies are explicitly encouraged to refer
for prosecution under state or local fraud statutes those cases where
fraud is suspected. 7 C.F.R. §273.16(e)(2) (1982). Certainly, given
this delegation of authority from the federal to the state level, the
state of Texas, and the state agency which administers the food stamp
program, i.e., the Texas Department of Humsn Resources, would qualify
SS "one having... a greater right" to possess food stamps than one who
obtains them by fraud.
The Court of Criminal Appeals has strongly recommended pleading
special ownership in the name of a natural person acting for a
corporation or business entity. Eaton v. State, 533 S.W.2d 33 (Tex.
Grim. App. 1976); Castillo v. State, 469 S.W.2d 572 (Tex. Grim. App.
1971). The same consideration would surely apply when the United
States Government, the state of Texas, or the Texas Department of
Human Resources qualify as owners of the property in question. In
Compton, the court recognized the unlikelihood of finding any one
individual within a corporation who meets all criteria of
"possession," a, care, custody, control, and management over the
property in question. This, in and of itself, does not preclude one's
eligibility to qualify as the owner under Penal Code section 1.07(24).
Compton v. State, B, at 251. Accordingly, to plead an individual
caseworker as an owner under this section is not proscribed by
Compton, so long as the caseworker does possess managerial control
over the property appropriated. The court will ultimately look to the
employment relationship itself to examine the responsibilities of the
individual "owner" vi&a-vis the property in question. The federal
regulations discussed above, combined with the court's holding in
Compton, would evidently qualify the state, an agency of the state, or
the individual caseworker as having a sufficient possessory right to
act as an "owner" under the Texas theft statute.
Likewise, Penal Code section 32.46 would serve as grounds for
prosecution in those cases where an individual gives false information
about his earnings in order to qualify for food stamp benefits. This
provision avers that a person may be adjudged guilty of securing
execution of a document by deception if, with intent to defraud or
harm any person, he, by deception, causes another to sign or execute
any document affecting property or service or the pecuniary interest
of any person. The term "property" is defined under Penal Code
section 32.01(2) to include real property; tangible or intangible
personal property including anything severed from land; or "a
document, including money, that represents or embodies anything of
value." (Emphasis added). Clearly, food stamps would fall under this
definition.
p. 2158
Honorable Henry Wade - Page 4 (N-582)
Additionally, Penal Code section 37.10, "Tampering with a
Governmental Record," could be brought into force when construed with
the law of parties. This provision of the Penal Code declares that 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; or
(3) intentionally destroys, conceals, removes,
or otherwise impairs the verity, legibility, or
availability of a governmental record.
Penal Code 937.10(a). The culpability of an applicant who attempts to
obtain food stamps by intentionally entering, or causing another
person to enter, inaccurate information about his earnings in a
government-record is clarified under section 7.02 of the Penal Code:
A person is criminally responsible for an offense
committed by the conduct of another if:
(1) acting with the kind of culpability
required for the offense, he causes or aids an
innocent or nonresponsible person to engage in
conduct prohibited by the definition of the
offense;
(2) acting with intent to promote or assist
the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the
other person to commit the offense....
In view of the foregoing discussion, it appears possible that
several different offenses, with different elements, could arise out
of the same transaction. Consider, for example, a food stamp
applicant who causes an innocent third party, a, a caseworker, to
make an inaccurate entry pertaining to the applicant's income in a
governmental record with the intent to receive food stamp benefits for
which he is clearly not entitled. The applicant, under the law of
parties, could be prosecuted under Penal Code section 37.10 "Tampering
With a Governmental Record," a third degree felony. Assuming the
applicant succeeds in his ploy and the caseworker signs the documents
certifying the applicant's eligibility for benefits, the recipient
could be charged with "Securing Execution of a Document by Deception"
under Penal Code section 32.46, also a third degree felony. And
p. 2159
. .
Honorable Henry Wade - Page 5 (MW-582)
finally, when the recipient actually acquires possession of or
"appropriates" the food stamps, the offense of theft under Penal Code
section 31.03 has been committed.
Prosecution of all three of the above offenses would probably
have been barred under the carving doctrine. Cf. Duckett v. State,
454 S.W.2d 755 (Tex. Grim. App. 1970). The Court of Criminal Appeals
in Ex parte McWilliams, No. 64,508 (Tex. Grim. App. May 12, 1982)
abandoned this doctrine for the compelling reason that it encouraged
crime. The court's ruling and dictum in McWilliams leaves the door
open for multiple prosecutions of offenses which may be the product of
one transaction. In other words, it now appears that the state may
present evidence of criminal conduct in more than one trial against
the same defendant, so long as he is charged with two separate
offenses.
Since [the Court of Criminal Appeals] is
abandoning the carving doctrine, [it] will now
decide double jeopardy questions under the strict
construction of the Constitutions of the United
States and of this state. The prohibitions
against being twice put in jeopardy for the same
offense reauires a test for defining the 'same
offense.' kx parte McWilliams, No. 64,508 (Tex.
Crim. App. May 12, 1982).
The Supreme Court of the United States has already provided such
a test:
[T]he applicable rule is that where the same act
or transaction constitutes a violation of two
distinct statutory provisions the test will be
applied to determine whether there are two
offenses or only one, is whether each provision
reauires nroof of a fact which the other does not.
Blockburger v. United States, 284 U.S. 299 (1932).
The Fifth Circuit Court of Appeals recognized that there may be a
substantial overlap in the elements and the evidence presented to
mxwe each offense. However, the "same offense" test will be
satisfied by close examination of each statutory element of an
offense. Brown V. Alabama, 619 F.2d 376 (5th Cir. 1980).
SUMMARY
One who fraudulently obtains food stamps by
falsely stating his income to qualify for food
stamp benefits may be prosecuted under the Texas
theft statute, Penal Code section 31.03. The
p. 2160
. .
Honorable Henry Wade - Page 6 (MW-582)
owner may be designated as the United States
Government, the state of Texas, or the Department
of Human Resources, or preferably an individual
employee whose responsibilities give him
managerial control over the food stamps
themselves. The state may also prosecute for
tampering with a governmental record and securing
execution of a document by deception, depending on
how the food stamps were obtained. The
specificity of any of the three applicable
statutes would not bar prosecution under either of
the remaining two since each offense contains an
element which does not exist in the remaining two.
The state is not restricted to prosecuting one of
the three offenses assuming the facts satisfy all
of the statutory elements. Finally, section
33.011 of the Human Resources Code does not bar
prosecution under the Texas Penal Code for
offenses occurring after May 25, 1977.
-MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Tim Gull1
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Tim Gull1
Patricia Hinojosa
Jim Moellinger
p. 2161