Untitled Texas Attorney General Opinion ( 1959 )

Honorable Harold B. Parish, Chairman opinion NO. w-613
Privileges, Suffrage and Elections Committee
House of Representatives Re: Whether or not there
Austin, Texas could~be convictions for
false swearing or perjury
under the declaration
,provisions to be signed
by.the elector6 when not
required to be notarized
or upon affidavit of a
witness.
Dear Mr. Parish:
YOUI'opinion request concerning Eouse Bill No. 86 and Committee
Amendment No. 1 reads inpart as follows:
"The Committee requests to be advised on the quest-
ion,as to whether or not there could be convictions for
false-witnessing or perijuryunder the declaration provi-
sions to be signed by the electors when not required to
be notarized or upon affidavit of a witness."
House Bill No. 86 purports to amend Subdivision 4 of Section 37 of
the 'ElectionCode of the State of Texas, compiled in Vernon's Revised Civil
Statutes of Texas as the Election Code, Article 5.05. This bill reads in
part as,follows:
"Such elector shall mark the ballot, or it shall
be marked.by a witness at the direction of said elector
in case of the latter's inability to mark such ballot
because of physical disability, inthe presence of a
Notary Public or other persons qualified under the law to
take acknowledgements, and in the presence of no other
person except said witness and/or such officer, and in such
manner that-such officer cannot know how the ballot is
marked, and such ballot shall thenin the presence of such
officer be folded by the elector or by said witness in case
of physical disability of said elector, deposited in said
envelope, the envelope securely sealed, the endorsement fill-
ed out, signed by the elector;"pr in case of physical disa-
bility, then by the said witness for and in behalf of said
elector, and certified by such officer and then mailed by
said officer, postage prepaid, to the county clerk."
(mphasis added)
Ronorable Harold B. Parish, Page 2. (w-613)
Article 302 of Vernon's Penal Code of the State of Texas, reads as
follows:
"Perjury is a false statement, either written
or verbal, deliberately and wilfully made, relating
to something past or present, under the sanction of
an oath, or such affirmationas is by law equiva-
lent to an oath, where such oath.or affirmation is
legally administered, under circumstances in which an
oath or affirmation is required by law, or is neces-
sary for the prosecution or defense of any private
right, or for the ends of public justice."
Article 310, 'Vernon'sPenal Code, reads as follows:
"If any person shall deliberately and wilfully,
under oath or affirmation legally administered,
make a false statement by a voluntary declaration
or affidavit, which is not required by law or made
in,the course of a judicial proceeding, he is guilty
of false swearing, and shall be punished by confine-
ment in the penitentiary not less than two nor more
thanfive years." (Emphasis added)
It should be noted that both Article 302 and Article 310 of Vernon's
Penal Code require as anelement of prosecution that statements, declarations,
etc., be made under oath or affirmation legally administered. It has been
held that "the full force and effect of such statutes is to require that the
State prove in all prosecutions for perjury in this state that the false
statement was made under the sanction of an oath which had been legally ad-
;;;+;itered". Leslie Lowry v. State of Texas, 297 S.W.2d 848 (Tex. Grim.
In Weadock v. State, 118 Tex. Grim. R. 537, 36 S.W.2d 757, the
Court held that to constitute a valid oath for the falsity of which perjury
will lie, there must be, in the presence of a person authorized to administer
it, an unequivocal act by,which affiant consciously takes upon himself the
obligation of an oath.
It would seem from the above authority that perjury convictions would
lie where it could be proved by the State that an oath was actually taken by
the affiant in.the presence of a persoriauthorised to administer such oath.
The fact that the affiant signed a statement that appeared to be sworn to with-
out the actual proof that he was in.fact sworn would not support a conviction
of perjury.
Committee Amendment No. 1 amends House Bill 86 so as to omit all
reference to a'Wotary Public and other persons qualified under law to take
acknowledgnents.
Since the statement required by House Bill 86 as amended by Com-
mittee Amendment No. 1 is not to be made under oath or affirmation, a person
making a false statement would not be guilty of "perjury" or "false swear-
ing".
Neither H. B. 86 nor Committee Amendment No. 1 contravenes any
Constitutional provision.
SUMMARY
There could be no convictions for
false swearing or perjury under
the declaration provisions of H.B.
86 or Committee Amendment No. 1
signed by the electors when not
made upon oath or affirmation ler
gaily administered. H. B. 86 and
Committee Amendment No. 1 are
Constitutional.
Very truly yours,
WILLWIISON
Attorney General of Texas
Cecil Cammack, Jr.
Assistant
CC:aw
OPINION COMMITTEE:
Geo. P. Blackburn, Chairman
Robert T. Lewis
Zellner J. Turlington
Thomas Burrus
Wallace P. Finfrock
REVIRWRDFORTREATTORNJ3Y GENERAL
BY:
Ii.V. Geppert