How To Stay Out Of Jail (as an elected official) Penal Code, Chapter 31, Theft

How To Stay Out Of Jail
(as an elected official)
Presented by
Bill Moore, County Attorney, Johnson County
Penal Code, Chapter 31, Theft
• A person commits an offense if he unlawfully appropriates property with the intent to deprive the owner of property.
• Appropriation of property is unlawful if:
Appropriation of property is unlawful if:
• it is without the owner’s effective consent.
Category of Offense
• Class C Misd. if the value of the property stolen is < $50
• Class B Misd. if the value of the property stolen is $50 or more but < $500 • Class A Misd. is the value of the property stolen is $500 or more but < $1500
• State Jail Felony if the property stolen is $1,500 or S
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more but < $20,000
• Third Degree Felony if the property stolen is $20,000 or more but < than $100,000
• Second Degree Felony if the property stolen is $100,000 or more but < $200,000
• First Degree Felony if the property stolen is $200,000 or more.
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Penal Code, Chapter 12 (Punishment)
• Class C Misd., fine up to $500
• Class B Misd., fine up to $2,000, jail up to 180 days or both
• Class A Misd., fine up to $4,000, jail up to 1 year or both
• State Jail Felony, jail not < 180 days or > 2 years, and may be fined up to $10,000
• Third Degree Felony, jail < 2 years or > 10 years, and may be fined up to $10,000
• Second Degree Felony, jail not < 2 years or > 20 years, and may be fined up to $10,000 • First Degree Felony, jail not < 5 years or > 99 years, and may be fined up to $10,000
Effect of being a Public Servant
• Offense is increased to the next higher category if the actor was a public servant at the time of the offense and the property came into the actor’ss custody, possession and into the actor
custody possession and
control by virtue of his status as a public servant.
Definition of Public Servant
• Penal Code Section 1.07 (41), Public Servant means a person elected, selected, appointed, employed, or otherwise designated as one of the following even if he has not yet qualified
the following, even if he has not yet qualified for office or assumed his duties: (A) an officer, employee, or agent of government, (E) a candidate for nomination or election to public office.
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Statute of Limitations
• Article 12.01 (2) Code of Criminal Procedure, Statute of Limitations, ten years from the commission of the offense: (B) theft by a public servant of governmental property over
public servant of governmental property over which he exercises control in his official capacity. “Borrowing Money”
• Can’t “borrow” money from the cash drawer in the office (even if later intend to pay back or replace the money). Taking the money is a theft. Example, public servant takes $20 from cash drawer for personal use. Auditor’s Office audits p
the cash drawer before close of business on the day the actor removed the cash and discovers $20 is missing. Actor has committed a Class B Misd. theft. The offense is a Class B theft because Class C theft is increased to next higher category because actor is a public servant. Oath of Office
• Oath for County Judge and Commissioners mentions contracts. • Under Section 81.002 of the Local Government Code, County Commissioners are required to swear to the following oath upon taking office: “I ___________, do solemnly swear (or affirm) that I will faithfully execute the duties of the office of ________________, of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State; and I furthermore solemnly
the United States and of this State; and I furthermore solemnly swear (or affirm) that I have not directly or indirectly paid, offered, or promised to pay, contributed, nor promised to contribute any money, or valuable thing, or promised any public office or employment, as a reward for the giving or withholding a vote at the election to which I was elected; and I furthermore solemnly swear (or affirm) that I will not be, directly or indirectly, interested in any contract with or claim against the County, except such contracts or claims as are expressly authorized by law and except such warrants as may issue to me as fees of office. So help me God.”
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Bribery and Corrupt Influence
• Penal Code Sec. 36.01. DEFINITIONS. In this chapter:
•
(2) "Party official" means a person who holds any position or office in a political party, whether by election, appointment, or employment.
•
(3) "Benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct and substantial interest.
Penal Code Sec. 36.02. BRIBERY
• (a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
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(1) any benefit as consideration for the recipient's decision, opinion, recommendation, vote, or i i t' d i i
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other exercise of discretion as a public servant, party official, or voter;
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(2) any benefit as consideration for the recipient's decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding;
No Defense
• (c) It is no defense to prosecution under this section that the benefit is not offered or conferred or that the benefit is not solicited or accepted until after:
•
(1) the decision, opinion, recommendation, vote, or other exercise of discretion has occurred; or
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(2) the public servant ceases to be a public servant.
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Penal Code Sec. 36.03. COERCION OF PUBLIC SERVANT OR VOTER
• (a) A person commits an offense if by means of coercion he:
•
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or
or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty; or
•
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
• (b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.
Penal Code Sec. 36.07. ACCEPTANCE OF HONORARIUM
• (a) A public servant commits an offense if the public servant solicits, accepts, or agrees to accept an honorarium in consideration for services that the public servant would not have been requested to provide but for the public servant's official position or duties.
• (b) This section does not prohibit a public servant from accepting transportation and lodging expenses in connection with a conference or similar event in which the public servant renders f
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services, such as addressing an audience or engaging in a seminar, to the extent that those services are more than merely perfunctory, or from accepting meals in connection with such an event.
• (b‐1) Transportation, lodging, and meals described by Subsection (b) are not political contributions as defined by Title 15, Election Code.
• (c) An offense under this section is a Class A Misdemeanor.
Penal Code Sec. 36.08. GIFT TO PUBLIC SERVANT BY PERSON SUBJECT TO HIS JURISDICTION
• (d) A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any contract, purchase, payment, claim, or transaction involving the exercise of his discretion.
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Penal Code Sec. 36.08. Cont.
• (h) An offense under this section is a Class A misdemeanor.
• (i) A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under this section may donate the
accepting under this section may donate the benefit to a governmental entity that has the authority to accept the gift or may donate the benefit to a recognized tax‐exempt charitable organization formed for educational, religious, or scientific purposes.
Penal Code Sec. 36.09. OFFERING GIFT TO PUBLIC SERVANT
• (a) A person commits an offense if he offers, confers, or agrees to confer any benefit on a public servant that he knows the public servant is prohibited by law from accepting.
• (b) An offense under this section is a Class A misdemeanor.
Penal Code Sec. 36.10. NON‐APPLICABLE
• (1) a fee prescribed by law to be received by a public servant or any other benefit to which the public servant is lawfully entitled or for which he gives legitimate consideration in a capacity other than as a public servant;
than as a public servant;
• (4) a political contribution as defined by Title 15, Election Code;
• (6) an item with a value of less than $50, excluding cash or a negotiable instrument as described by Section 3.104, Business & Commerce Code;
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Penal Code Sec. 36.10. Cont.
• (8) transportation, lodging, and meals described by Section 36.07(b).
• (b) Section 36.08 (Gift to Public Servant) does not apply to food, lodging, transportation, or entertainment accepted as a guest and, if the donee is required by law to report those items, reported by the i db l
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donee in accordance with that law.
• (c) Section 36.09 (Offering Gift to Public Servant) does not apply to food, lodging, transportation, or entertainment accepted as a guest and, if the donor is required by law to report those items, reported by the donor in accordance with that law.
Sec. 39.02. ABUSE OF OFFICIAL CAPACITY
• (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant'ss • (1) violates a law relating to the public servant
office or employment; or
• (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.
Sec. 39.02. Cont.
• (b) An offense under Subsection (a)(1) is a Class A misdemeanor.
• (c) An offense under Subsection (a)(2) is:
• (1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;
• (2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500;
• (3) a Class A misdemeanor if the value of the use of the thing (3) Cl A i d
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misused is $500 or more but less than $1,500;
• (4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000;
• (5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000; • (6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or
• (7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
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Consulting Work?
• Section 81.02, Local Government Code, oath of office;
• Chapter 176, Local Government Code, conflicts disclosure statement ;
• Chapter 171, Local Government Code, conflicts of interest;
• Section 36.07, Penal Code, Acceptance of Honorarium; • Section 36.08, Penal Code, Gift to Public Servant by Person S i 36 08 P l C d Gif
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Subject to Jurisdiction;
• Section 36.09, Offering Gift to Public Servant;
• Section 36.10, Non‐Applicable;
• Attorney General Opinion GA‐0354 (2005);
• Texas Ethics Commission Advisory Opinion No. 305; and
• Texas Ethics Commission Advisory Opinion No. 173.
Chapter 171, Local Government Code, Regulation of Conflicts of Interest of Officers of Municipalities, Counties, and Certain Other Local Governments
• Sec. 171.001. DEFINITIONS. In this chapter:
•
(1) "Local public official" means a member of the governing body or another officer, whether elected, appointed, paid, or unpaid, hether elected appointed paid or npaid
of any district (including a school district), county, municipality, precinct, central appraisal district, transit authority or district, or other local governmental entity who exercises responsibilities beyond those that are advisory in nature.
Chapter 171, Local Government Code Cont.
• (2) "Business entity" means a sole proprietorship, partnership, firm, corporation, holding company, joint‐stock company, receivership trust or any other entity
receivership, trust, or any other entity recognized by law.
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Sec. 171.002. SUBSTANTIAL INTEREST IN BUSINESS ENTITY
• (a) For purposes of this chapter, a person has a substantial interest in a business entity if:
•
(1) the person owns 10 percent or more of the voting stock or shares of the business entity
the voting stock or shares of the business entity or owns either 10 percent or more or $15,000 or more of the fair market value of the business entity; or
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(2) funds received by the person from the business entity exceed 10 percent of the person's gross income for the previous year.
Sec. 171.002. Cont.
• (b) A person has a substantial interest in real property if the interest is an equitable or legal ownership with a fair market value of $2,500 or more.
• (c) A local public official is considered to have a substantial interest under this section if a person related to the official in the first degree by consanguinity or affinity, as determined under Chapter 573, Government Code, has a substantial interest under this section.
Sec. 171.003. PROHIBITED ACTS; PENALTY
• (a) A local public official commits an offense if the official knowingly:
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(1) violates Section 171.004;
(2) acts as surety for a business entity that
(2) acts as surety for a business entity that •
has work, business, or a contract with the governmental entity; or
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(3) acts as surety on any official bond required of an officer of the governmental entity.
• (b) An offense under this section is a Class A misdemeanor.
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Sec. 171.004. AFFIDAVIT AND ABSTENTION FROM VOTING REQUIRED
• (a) If a local public official has a substantial interest in a business entity or in real property, the official shall file, before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter if:
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(1) in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public; or
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(2) in the case of a substantial interest in real property, it is reasonably foreseeable that an action on the matter will have a special economic effect on the value of the property, distinguishable from its effect on the public.
Sec. 171.004. Cont.
• (b) The affidavit must be filed with the official record keeper of the governmental entity.
Persons to rely on:
• Purchasing Agent
• County Attorney or District Attorney
• Auditor
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Purchasing Agent
• Each July PA files with auditor and board that appoints PA an inventory of all county property.
• Chapter 262, Local Government Code, County Purchasing Act. • Section 262.023, Competitive Bidding Requirements p
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for expenditures in exceeding $50,000.
• P.A. establishes policies and procedure for competitive purchases.
• If purchases are less than $50,000, PA shall adopt procedures that provide for competitive procurement (purchases) to the extent possible.
County Attorney or District Attorney
• Section 41.007 Government Code, Opinions to County and Precinct Officials. • A district or county attorney, on request, shall give to a county or precinct official of his district
give to a county or precinct official of his district or county a written opinion or written advice relating to the official duties of that official.
• Even if not requesting a written opinion, seek advice from your county or criminal district attorney if you have a question.
• “Better to ask forgiveness rather than permission” does not apply when you are an elected official
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County Auditor
• Sec. 113.064. APPROVAL OF CLAIMS BY COUNTY AUDITOR. •
(a) In a county that has the office of county auditor, each claim, bill, and account against the county must be filed in sufficient time for the auditor to examine and approve it before the meeting of the commissioner’ss court. approve it before the meeting of the commissioner
court
A claim, bill, or account may not be allowed or paid until it has been examined and approved by the auditor.
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(b) The auditor shall stamp each approved claim, bill, or account. If the auditor considers it necessary, the auditor may require that a claim, bill, or account be verified by an affidavit indicating its correctness.
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(c) The auditor may administer oaths for the purposes of this section.
Sec. 113.065. REQUIREMENT FOR APPROVAL OF CLAIM
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The county auditor may not audit or approve a claim unless the claim was incurred as provided by law.
Attorney General Opinion GA‐0247 (2004)
• Question: Whether a county auditor may approve a claim for payment on a contract that was not awarded in compliance with the County Purchasing Act?
• Answer: If a county auditor determines that a Answer: If a county auditor determines that a
contract was awarded in violation of the County Purchasing Act, section 113.065 of the Local Government Code prohibits the auditor from approving the claim. A claim may not be approved by the commissioners court or paid by the county without the auditor’s approval. 12
• Citing Crider, 960 S.W.2d at 706, the county auditor’s approval of a claim is a perquisite to the commissioners court’s approval; without county auditor approval, the commissioners court’s approval of a claim is void.
County auditors need not obtain a court order
• County auditors need not obtain a court order declaring the contract void for noncompliance with the County Purchasing Act to exercise the duty to withhold approval of a claim. A county auditor’s decision to approve or disapprove a claim is discretionary as opposed to a ministerial act.
• Citing, Limestone County, 234 S.W. at 134, a commissioners court could not ratify a contract awarded in violation of competitive bidding requirements.
• Claimant would have to file a legal action to recover damages in quantum meruit. Neither chapter 113 nor the County Purchasing Act authorizes a commissioners court to
County Purchasing Act authorizes a commissioners court to approve quantum meruit payments on a contract that was not awarded in compliance with the County Purchasing Act to provide a basis for the county auditor to approve claims on the contract.
• A court’s order to make quantum meruit payments would provide a basis for the county auditor to determine that a claim was “incurred as provided by law”.
Government Code, Chapter 791, Interlocal Cooperation Contracts
• "Governmental functions and services" means all or part of a function or service in any of the following areas:
(A) police protection and detention services; (B) fire protection;
(C) streets, roads, and drainage; (D) public health and welfare;
( )
(H) waste disposal;
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(I) planning;
(J) engineering;
(K) administrative functions; (L) public funds investment;
(M) comprehensive health care and hospital services; or
(N) other governmental functions in which the contracting parties are mutually interested.
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Section 791.011. CONTRACTING AUTHORITY; TERMS
• (2) provide a governmental function or service that each party to the contract is authorized to perform individually.
• (d) An interlocal contract must:
• (1) be authorized by the governing body of each party to the contract unless a party to the contract is a municipally owned electric utility in which event the governing body may
electric utility, in which event the governing body may establish procedures for entering into interlocal contracts that do not exceed $100,000 without requiring the approval of the governing body;
• (2) state the purpose, terms, rights, and duties of the contracting parties; and
• (3) specify that each party paying for the performance of governmental functions or services must make those payments from current revenues available to the paying party.
• An interlocal contractual payment must be in an amount that fairly compensates the performing party for the services or functions performed under the contract
performed under the contract.
Sec. 791.014. APPROVAL REQUIREMENT FOR COUNTIES
• Before beginning a project to construct, improve, or repair a building, road, or other facility under an interlocal contract, the commissioners court of a county must give specific written approval for the project. • (b) The approval must:
(1) be given in a document other than the interlocal
(1) be given in a document other than the interlocal
contract;
(2) describe the type of project to be undertaken; and (3) identify the project's location.
• (c) The county may not accept and another local government may not offer payment for a project undertaken without approval required by this section.
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Chapter 87, Local Government Code, Removal of County Officers from Office
Sec. 87.011. DEFINITIONS. In this subchapter:
(1) "District attorney" includes a criminal district attorney.
(2) "Incompetency" means:
(A) gross ignorance of official duties;
(B) gross carelessness in the discharge of those duties; or
(B) gross carelessness in the discharge of those duties; or
(C) unfitness or inability to promptly and properly discharge official duties because of a serious physical or mental defect that did not exist at the time of the officer's election.
• (3) "Official misconduct" means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law. The term includes an intentional or corrupt failure, refusal, or neglect of an officer to perform a duty imposed on the officer by law.
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Sec. 87.013. GENERAL GROUNDS FOR REMOVAL
(a) An officer may be removed for:
(1) incompetency;
(2) official misconduct; or
(3) intoxication on or off duty caused by drinking an alcoholic beverage.
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• (b) Intoxication is not a ground for removal if it appears at the trial that the intoxication was caused by drinking an alcoholic beverage on the direction and prescription of a licensed physician practicing in this state.
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Sec. 87.031. IMMEDIATE REMOVAL
• (a) The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as an immediate removal from office of that officer
immediate removal from office of that officer.
• (b) The court rendering judgment in such a case shall include an order removing the officer in the judgment.
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CHAPTER 37. PERJURY AND OTHER FALSIFICATION
Sec. 37.01. DEFINITIONS. In this chapter:
• (2) "Governmental record" means:
• (A) anything belonging to, received by, or kept b
by government for information, including a f i f
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court record;
• (B) anything required by law to be kept by others for information of government;
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, (2)
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document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.
Sec. 37.10. Cont.
• (2) a felony of the third degree if the offense is committed under:
• (A) Subsection (a)(1), (3), (4), or (6); or
(B) Subsection (a)(2) or (5) and the defendant
• (B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and
• (3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor's intent in committing the offense was to defraud or harm another.
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Case Study
• Elected official uses county issued credit card and makes purchases at the local big box hardware store. Card routinely used to make small purchases of less than $50 when needed. Over an eight month period purchases (some over the $50 limit) are made with the county issued credit card for personal items of the elected official, items
credit card for personal items of the elected official, items not used for a county purpose. Items such as: pool supplies, laundry and dishwasher soap, Boston fern plant, Christmas lights, stain remover, leaf rake, water hoses, bamboo window shades, outside table umbrella, and A/C filter. Total expenditures $1400.00. Auditor notices the unusual items in auditing the elected officials expenditures. Investigation is conducted by law enforcement. Result: Indictment of elected official on a state jail felony theft.
Case Study
• Elected official purchases a particular chemical product to be used in construction and improvement of county roads. Elected official receives payments from an agent of the company selling the product to the county. Investigation is g
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conducted by law enforcement. Payments were discovered by examining bank records of the elected official. Result: Indictment of Abuse of Official Capacity, 2d Degree Felony ($100,000 to $200,000) and Indictment of Abuse of Official Capacity, 1st Degree Felony (over $200,000).
Case Study
• Elected official receives payments from individuals. Purpose of payments is unknown. Investigation is conducted by law enforcement and discovers the elected official has failed to
and discovers the elected official has failed to disclose the payments on his personal financial statements filed with the county clerk. Result: Indictment for Tampering with a Governmental Record, 3rd Degree Felony, 6 counts.
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