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Texas Appellate Law Blog Civil Appellate Practice Tips, Resources, and News

Stretch the Facts, Go to Jail?

Posted in Opinions & Judgments

The following is a guest post from Roger Hughes of Adams & Graham, LLP:

Lawyers, and perhaps appellate attorneys, now face a new problem if their briefs or pleadings stretch facts or are flat wrong about them.  That problem is indictment and jail.  This week, the Texas Court of Criminal Appeal decided round two of Vasilas v. State ( PD-1473-06) (May 7, 2008).  The Court reversed the trial court’s ruling that quashed the indictment against an attorney who allegedly made a false statement in a civil pleading.

Vasilas was an attorney for a criminal defendant who beat the criminal charges; Vasilas then filed an expunction suit.  The petition he prepared contained factual error.  Unamused, the DA indicted Vasilas under Texas Penal Code § 37.10(a), which prohibits making false entries in a “government record.”  This is a felony if there is an intent to defraud.  The trial judge quashed the indictment.  Still unamused, the DA appealed.

In the first round, the Court held that a petition in a civil case was a “government record” for the purpose of Section 37.10.  Vasilas v. State, 187 S.W.3d 486 (Tex. Crim. App. 2006).  It remanded to the Dallas Court of Appeals, which determined that the civil rule about frivolous pleadings, TRCP 13, did not supplant the Penal Code and remanded for trial.  Vasilas returned to Court of Criminal Appeals, joined by amici TTLA and TADC.

In Vasilas II, the Court decided that the doctrine of in pari materia did not apply.  Because TRCP 13 was a court rule, not a statute, it doesn’t trump the Penal Code for false statements in civil case pleadings.  The Legislature did not write TRCP 13, so there was no reason to use it construe or control Section 37.10.

The upshot is that, no matter what the judge in a civil case does, the DA can still indict and prosecute for arguably false statements in a brief or pleading.  It’s a bit scary to think that you can defeat a motion for sanctions over a statement in your brief, but your opponent can still get you indicted.

Think about going to jail for something in your factual statement the next time you write a a brief.  Your ultimate audience may be the DA and a criminal jury.

  • http://www.scotxblog.com Don Cruse

    The CCA’s holding is really that its sister court, the Supreme Court of Texas, either lacked authority (or, if it had authority, failed to effecively) seize the field in regulating lawyer conduct.
    The rules are court-made, but they are authorized by statute, and that power is vested in the Supreme Court. Tex. Gov’t Code §22.004. That Court has the “full rulemaking power in the practice and procedure in civil actions.” Id. §22.004(a).
    The Legislature recognized that conflicts between those rules and other statutes might arise, and it provided a mechanism to resolve those conflicts: “So that the supreme court has full rulemaking power in civil actions, a rule adopted by the supreme court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions, but substantive law is not repealed.” Id. § 22.004(c).
    The CCA stopped its analysis short in holding that, merely because Rule 13 was a “rule” not a “statute,” it could have no bearing on the interpretation of a statute. The Legislature has already rejected that view. Instead, the CCA should have analyzed whether this aspect of Rule 13 was procedural or substantive within the meaning of Government Code 22.004.

  • http://sophisticmiltonianserbonianblog.wordpress.com/ 020033

    Agree with your analysis, but have a question as to what Vasilas’s options now are.
    Because he can’t mandamus the CCA at SCOTX under Tex. Gov’t Code sec. 22.002(a), and it appears he can’t pursue a direct appeal to SCOTX under TRAP 57.2, is his only option now to file a civil appeal of the CCA’s decision back down at the Dallas CoA?
    To my mind, because of the statutory conflict you note above, it seems he would have fairly good grounds to assert the CCA didn’t have jurisdiction to render the judgment it did. That, under Tex. Gov’t Code Ann. sec. 22.001(a)(3) (statutory construction) and (d) (SCOTX’s power to determine its own jurisdiction), only SCOTX has jurisdiction to decide the matter.
    Would be endlessly fascinating to see this case play out further.

  • http://www.civtrial.com/blog Brooks Schuelke

    It will be interesting to wait until the first criminal defendant claims innonence and makes a criminal complaint against the prosecutor for pursuing an unmeritorious claim.
    What a quagmire this could cause.

  • Ron Fergurson

    If a prosecutor signs a motion to revoke probation making the allegation that the defendant commited a new criminal offense, then the prosecutor would be liable for filing a false government document if the allegation is wrong?