Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
March 31, 1981
MARK WHITE
Attorney General
Honorable James B. Adams, Director Opinion No. MI+31 7
Texas Department of Public Safety
5805 N. Lamar Boulevard Re: Perjurious complaints against
Austin, Texas 78773 law enforcement officers
Dear Colonel Adams:
Article 6252-20, V.T.C.S., requires that complaints against certain law
enforcement officers be placed in writing and signed by the complainants
432,Allmrta
Ave..
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160 before the complaints may be considered by superiors 8s a basis for
ElPaso.
TX.799x disciplinary action sgainst such officers. You advise that complaints
91- sometimes consist of intentional fabrications or misrepresentations, and ask:
[IsI a person who makes a fake statement, under
oath, concerning a complaint filed against a law
enforcement officer es required in article 6252-20,
V.T.C.S., with intent to deceive and with knowledge
of the statement’s meaning. . . guilty of perjury under
the terms of section 37.02 of the Penal Code or
aggravated perjury under the terms of section 37.03
of the Penal C&t?1
Under the Texas Penal Code, a person commits perjury if, with intent
to deceive and with knowledge of the statement’s meaning: (1) he makes a
fake statement under oath or swears to the truth of a fake statement
previously made; and (2) the statement is required or authorized by law to be
made under oath. Penal Code S37.02. Cf. Penal Code 537.08 (fake report
to peace officer). He commits aggravated perjury if, in addition, the fake
statement: (1) is made during or in connection with an official proceeding;
and (2) is materiaL Penal Code S37.03.
A “statement” means “any representation of fact,” and “official
proceeding” means “any type of administrative, executive, legislative, or
judicial proceeding that may be conducted before a public servant
authorized by law to take statements under oath.” Penal Code S37.OL A
statement is material if it “could have affected the. . . outcome of the
official proceeding.” Penal Code S37.04. As to the quantum of proof
required for conviction, e article 38.18of the Code of Criminal Procedure.
-Cf. Wood v. State, 577 S.W.2d 477 (Tex. Crim. App. 1978).
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Honorable James B. Adams - Page Two (Mw-317 )
The adoption of the 1974 Penal Code worked a change in the law relating to
perjury, as explained by the Practice Commentary found at page 51, volume 4, Texas
Penal Code Annotated (Vernon 1974),following section 37.04:
Under prior law, lying under oath was covered by two
principal offenses - pejury and fake swearing, Penal Code
arts. 302, 310. Fake swearing applied only if an oath was not
required by law and if the statement was not made in an official
proceeding; perjury applied if an oath was required by law or if
the statement was under oath in an official proceeding; and
fake swearing was not a lesser included offense of perjury.
Section 37.02 replaces the old fake swearing offense but
includes some conduct that would have been perjury under prior
law; it includes all statements authorized to be made under oath
whether or not an oath is required by law. . . .
. . . .
Under Section 37.03 perjury under Section 37.02 is
aggravated if it is committed in an official proceeding, which is
defined in Section 37.01 to include hearings before executive or
administrative agencies and legislative committees es well as
judicial hearings, and if it is materiaL If either of those
elements is absent the offense is perjury under Section 37.02, a
lesser included offense, see C.C.P. art. 37.09.
Assuming the person who makes the statement has been apprised of the content
and purpose of a complaint filed pursuant to article 6252-20, V.T.C.S., and of the
official character of the investigation conducted in connection therewith, it is our
opinion that aggravated perjury is committed if a material, fake, statement is made
under oath with intent to deceive concerning a complaint filed against a law
enforcement officer pursuantto article 6252-20, V.T.C.S.
Although article 6252-20, V.T.C.S., does not require that the written complaint it
contemplates be given under oath, a statement is “authorized by law to be made under
oath” within the meaning of sections 37.02 and 37.03 of the Penal Code if it is made
under oath during an official proceeding. Ex Parte Burkett, 577 S.W.2d 265 (Tex.
Crim. App. 1979). Fake testimony given in en administrative proceeding where a
person assumes an oath before testifying, although the law does not require the witness
to do so, is punishable. See City of San Antonio v. Poulos, 422 S.W. 2d 140(Tex. 1967).
Thus all the elements necessary to convict for aggravated perjury are present under
the example posed if the statement is material and is made %luringor in connection
with an official proceeding.” Penal Code S37.03.
Prior to the adoption of the 1974 Penal Code, former penal code article 306
included in the description of perjury all oaths, whether required by law or merely
authorized by law, legally taken:
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Honorable James B. Adams - Page Three (MW-317)
in any stage of a hearing, inquiy, meeting, or investigation
conducted pursuant to law by any governmental agency or
instrumentality having legal power to issue process for the
attendance of witnesses. (Emphasisadded).
Cf. Saunders v. State, 341 S.W.2d 173 (Tex. Crim. App. 1960). Under section 37.03 of
the new code, there is no requirement that the governmental sgency or instrumentality
for which the proceeding is conducted have “legal power to issue -process for the
attendance of witnesses.” It is enough that the statement upon oath is made during or
in connection with an “official proceeding.” The present statutory definition of
“official proceeding” embraces any type of administrative proceeding that may be
conducted before a public servant authorized by law to take statements under oath.
Penal Coda S37.01(2).
In A. H. Belo & Co. v. Lacy, 111S.W. 215 (Tex Civ.. App. 1908, writ ref’d), the
court conmdered a statute denouncing libel but authorizing, absent malice, publication
by a newspaper of any “official proceedings authorized by law in the administrationof
the law.” The court ruled that the publication of an official notation placed on a court
clerk’s file docket was privileged under that statutorylanguage, saying:
‘Proceedings,~as used and meant, relate to the form and manner
of the exerciss of the power conferred by law. The phrase ‘in
the administration of the law’is general, and means to include
the performance of acts or duties required by the law of
officers in the discharge of the required duties of the office; all
of the steps taken, and all of the things done, wherein legal
procedure is required or authorized by law, are included within
its scope. ill S.W. at 217.
We think the present penal code definition of “official proceeding” is of similar breadth
and includes all such proceedings conducted before one authorized to take statements
under oath. Those generally authorizgd to administer oaths are named in article 26,
V.T.C.S. See Drake v. State, 488 S.W.2d 534 (Tex. Civ. App. - Dallas 1972, writ repd
n.r.e.1. PGns who hold notary commissions are not disqualified therefrom merely
bsaauss they are officers or employees of the Department of Public Safety. See
V.T.C.S. arts. 5954, 668713,S6(a); Greer vi State, 437 S.W.2d 558 (Tex Crim. As
1969). -Cf. Garrett v. State, 387 S.W.2d 53 (Tex. Crim. App. 1965).
A complaint placed in writing and signed by the complainant is a necessary step
in the initiation of administrative disciplinary proceedings against certain law
enforcement officers by their superiors. V.T.C.S. art. 6252-20. See V.T.C.S. arts.
44l3(4), 4413(6),4413(a). Cf. Graves v. City of Dallas, 532 S.W.2d 106Tex Civ. App. -
Dallas 1975, writ rePd n.G). In American Employers’Insurance Co. v. Thompson, 11
S.W.2d 358 (Tex. Civ. App. - BaaLde
admissible in evidence “any order, award or proceeding of said board when duly
attested and sealed by the Board or its secretary,” the court said in holding a certified
copy of a notice admissible:
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Honorable James B. Adams - Page Four (MN-317 1
Since the complaining party is required by law to give notice
of his unwillingnessto abide by the award, we think such notice,
when served upon the Industrial Accident Board, constitutes a
‘proceeding’ within the meaning of this article. 11S.W. 2d at
359.
Knowledge of the content of a complaint and of the purpose of its filing pursuant
to article 6252-20, V.T.C.S., and of the official character of the investigation
conducted in connection therewith, indicates that an affiant has consciously taken
upon himself the obligation of an oath for the fakity of which aggravated perjury will
lie. See Weadock v. State, 36 S.W.2d 757 (Tex. Crim. App. 1930); United Services
Automobile Assn. v. Ratteree, 512 S.W.2d 30 (Tex Civ. App. - San Antonio 1974, writ
rePd n.r.e.1. In our opinion, the making of a written complaint required by law as a
prerequisite to the institution of administrative disciplinary proceedings against law
enforcement officers is an official proceeding within the meaning of Penal Code
section 37.01, and statements in an affidavit given in connection therewith are
statements made in connection with an official DroCeediIIuwithin the meaning of
section 37.03 of the Penal Code. See Simpson v. &ate, 79 KW. 530 (Tex. Crim. App.
1904). See aJso United States v. Browning, 572 F.2d 720 (10th Cir. 1978); Banach v.
State C-on on HumanRelations, 356 A.2d 242 (Md. 1976).
390 S.W.2d 460 (T C’ n Prideaux v. State
247 N.W.2d 385 (Gzn. gy61
SUMMARY
A person who makes a fake statement under oath con-
cerning a complaint filed against a law enforcement officer as
required by article 6252-20, V.T.C.S., with intent to deceive and
with knowledge of me statement’s meaning, is guilty of
aggravated perjury under section 37.03 of the Penal Code if he
has knowledge of the content of the complaint, the purpose of
its filing, and me official character of the investigation
conducted in connection therewith, end if the statement is
materiaL
&mm&g (’
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
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Honorable James B. Adams - Page Five (MN-317)
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINIONCOMMTlTEE
Sush L. Garrison, Chairman
Jon Bible
Rick Gilpin
Bruce Youngblood
P. 1012