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socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33574
Experience:  Retired (mostly)
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Has a crime been commit when an HOA President repeatedly uses

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Has a crime been commit when an HOA President repeatedly uses threats of calling Police to intimidate home owners into backing down from any disagreement they have with her mismanagement of the HOA's property? She holds HOA meetings in her home where homeowners are invited to attend and will call the police to claim a homeowner is trespassing when that homeowner disagrees with her position. She takes civil matters and tries to escalate them into criminal matters by calling the police to proclaim, "You are out of control!" when all you've done is disagree with her position. She proclaims "I am the President! What I say goes!" but doesn't realize she was elected by the homeowners and works for them, not the other way around. This is her ploy -- her game -- to do whatever she wants with the HOA's property and then call the police frivolously when homeowners disagree with her and pretend the homeowners have commit some offense of "being out of control" for objecting to her position, actions, or inactions. She even steps onto homeowners front yards to accost them verbally and then proclaims, "You're out of control! I'm calling the police!" in an effort to intimidate the homeowners into accepting her position (in this case, failing to perform property repairs then refusing to approve payment for same by others.) Isn't it a crime to use the police frivolously for civil matters proclaiming crimes have been commit when none have been? Would this constitute "malicious prosecution" or similar crime?
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello,

Malicious prosecution occurs where a person institutes criminal action without probable cause for a wrongful purpose, and the prosecution is resolved in favor of the defendant. Theoretically, the president's conduct could be a malicious prosecution, but it's not a "criminal" charge. Malicious prosecution is resolved through a civil lawsuit against the person who institutes the criminal action.

TX Pen. Code 37.08 is the false reporting statute. The law would apply to your allegations, but given the fact that the meetings are taking place in the president's home, I doubt that the district attorney would prosecute, because a homeowner can terminate any person's permission to be in the premises "at will:" at any time, for any reason, or for no reason at all.

The true solution to this problem is to vote the president out of office. The covenants and bylaws of the association may permit you to remove the president via a recall petition. That's where I would start looking to resolve this matter once and for all.

Hope this helps.
Customer: replied 1 year ago.

Is raising one's voice in public in response to someone raising their voice first, a "crime"? The HOA President in this situation is purposely baiting others to raise their voice against her when she steps onto their property and begins making false accusations in a loud voice. When the property owner responds back with the same volume, she proclaims that is being "Out of Control" as if that were some offense that would justify calling the police. Is it? Doesn't a person have to make a verbal threat or act in a threatening manner physically in order for this to be an "offense?" Or is it against to law to raise one's voice at all? Is it against the law to disagree verbally with HOA Presidents? Do HOA Presidents own the air and if you speak in any fashion that disturbs it or displeases an HOA President, you can be thrown in jail? We are well aware that this HOA President needs to be removed from office. But this question asks whether there is any merit to her charge that objecting to her verbal accusations in similar volume is somehow against the law and an actionable offense that could land one in jail. And what could be a counter charge for her raising her voice and accosting a homeowner on their own front lawn?

 

Expert:  socrateaser replied 1 year ago.
Is raising one's voice in public in response to someone raising their voice first, a "crime"?

A: Disturbing the peace and disorderly conduct is a crime. Raising one's voice is not. If it were, the entire U.S. Congress would be in prison.

The HOA President in this situation is purposely baiting others to raise their voice against her when she steps onto their property and begins making false accusations in a loud voice. When the property owner responds back with the same volume, she proclaims that is being "Out of Control" as if that were some offense that would justify calling the police. Is it?

A: Don't be silly. You could record the proceedings, if you need evidence to demonstrate that the president's assertions are frivolous.

Doesn't a person have to make a verbal threat or act in a threatening manner physically in order for this to be an "offense?"

A: “The term ‘breach of the peace’ is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community; a disturbance of the public tranquility by any act or conduct inciting to violence or tending to provoke or excite others to break the peace; a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm disturbs the peace and quiet of the community." Woods v. State, 152 Tex.Crim. 338, 213 S.W.2d 685 (1948).

Or is it against to law to raise one's voice at all?

A: TX Pen. Code Sec. 42.05(a) A person commits an offense if, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he obstructs or interferes with the meeting, procession, or gathering by physical action or verbal utterance.

Note: In order to "disrupt," there must be incitement to a breach of the peace, which is why I provided that definition, first.

Is it against the law to disagree verbally with HOA Presidents?

A: Now you're being silly.

Do HOA Presidents own the air and if you speak in any fashion that disturbs it or displeases an HOA President, you can be thrown in jail?

A: Come on...I get it -- you're pissed, but venting won't resolve the issue. You need a plan to deal with the president.

We are well aware that this HOA President needs to be removed from office. But this question asks whether there is any merit to her charge that objecting to her verbal accusations in similar volume is somehow against the law and an actionable offense that could land one in jail.

A: Considering that there would be a room full of witnesses, a fair number of whom would likely side against the president, I cannot imagine the district attorney taking this sort of case. There would have to be a physical altercation so as to confirm that something said had incited the participants to violate the criminal law.

And what could be a counter charge for her raising her voice and accosting a homeowner on their own front lawn?

A: Accosting, to me, means physical contact. Again, the baseline misdemeanor is "breach of the peace." If the president comes onto your property and starts into a verbal assault, you can simply state that she is trespassing, and that if she does not leave immediately, then you will call the police/sheriff and have her removed.

Hope this helps.
Customer: replied 1 year ago.

In this incidence, a lawful meeting had been called by me to bring a licensed termite exterminator onto my property to provide extermination services. He showed up with one helper and I met with the 3 of them on my front lawn where they proceeded to apply termiticide to the exterior base of my home.. Would that constitute a "meeting" for purposes of Penal Code 42.05(a)? The HOA President attempted to disrupt the meeting by coming onto my lawn to yell at me, making accusations that the work being performed would not be paid for by the HOA Treasury -- a fund into which I paid monthly for repairs of this kind. The purpose of the HOA President's utterances was to disrupt the meeting I was having with the exterminators. Would this qualify as an offense under 42.05(a)?

Expert:  socrateaser replied 1 year ago.
In this incidence, a lawful meeting had been called by me to bring a licensed termite exterminator onto my property to provide extermination services. He showed up with one helper and I met with the 3 of them on my front lawn where they proceeded to apply termiticide to the exterior base of my home.. Would that constitute a "meeting" for purposes of Penal Code 42.05(a)?

A: I believe that the purpose of Section 42.05 is to maintain order in meetings such as official proceedings of agencies, board of directors, public gatherings, etc. I don't think that the meeting you describe is within the scope of this particular law.

The HOA President attempted to disrupt the meeting by coming onto my lawn to yell at me, making accusations that the work being performed would not be paid for by the HOA Treasury -- a fund into which I paid monthly for repairs of this kind. The purpose of the HOA President's utterances was to disrupt the meeting I was having with the exterminators. Would this qualify as an offense under 42.05(a)?

A: What you are describing is probably within the scope of Pen. Code 42.01: "(a) A person commits an offense if he intentionally or knowingly: (1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace.

(c) For purposes of this section: (1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence."

Hope this helps.
Customer: replied 1 year ago.

As per 42.01 (a), what would be "an immediate breach of the peace?" Could that be just between 2 people? Or must there be a certain number of individuals involved for it to be considered a breach of the peace? Must such breach last for some minimum period of time? Or could the breach have lasted just a couple of minutes? And what would the form of that breach be? Raised voices? People getting upset? Does property have to be damaged to make the breach of peace manifest in some physical form? Or would this all be according to whatever the police officer determined in his or her mind was a breach of the peace? I don't mean to split hairs, but I'm looking for useful guidelines to use in recognizing when behavior crosses a line and becomes a legal offense. And would the offense be "Disrupting the Peace"...? Or something else?

Expert:  socrateaser replied 1 year ago.
Any act which has a propensity to incite others to immediate violence is a breach of the peace. It's obvious when violence actually occurs. Otherwise, it's a judgment call for a peace officer to determine at the time the offense occurs.

Pen. Code 42.01 is termed "disorderly conduct."

Example: If I "flip you the bird" and you're a friend of mine, you smile and tell me to "go to hell." If I'm a stranger, and flipping you off causes you to grab a tire iron and start walking towards me with an obvious intent to break my skull open, then that's a breach of the peace.

The incitement to violence must be immediate. It can't be a situation where one person angers another, and then that person goes away and starts planning a murder. The incitement must cause an imminently likely violent response.

Hope this helps.
Customer: replied 1 year ago.

Very good detail. But tell me if I have this right...In the example you gave above, the stranger who flipped the bird commit an offense under 42.01 in that the act was vulgar and indecent in public and incited a breach of the peace, as demonstrated by the one who was flipped and responded by picking up a tire iron and walking towards the flipper with obvious intent to break his skull open. That would be 2 people only and a breach of the peace occurred so one part of the answer is that it does not take more than 2 people for a breach of the peace to occur, and the breach could be a single act not lasting but a few seconds. And in this situation, the flipper would have commit an offense under 42.01 but then the flipee would also be guilty of breaking the peace by picking up the tire iron and going after the flipper with intent to inflict bodily harm. Is that correct? Or is there such a thing as "justified violence" whereby anybody who is flipped off can retaliate against the flipper with violence and not commit a crime and the only one who commit an offense was the flipper?


 


And would raising one's voice in public in an angry response to provocation be considered "disorderly conduct" and an actionable offense?

Expert:  socrateaser replied 1 year ago.
That would be 2 people only and a breach of the peace occurred so one part of the answer is that it does not take more than 2 people for a breach of the peace to occur, and the breach could be a single act not lasting but a few seconds. And in this situation, the flipper would have commit an offense under 42.01 but then the flipee would also be guilty of breaking the peace by picking up the tire iron and going after the flipper with intent to inflict bodily harm. Is that correct?

A: Correct.


Or is there such a thing as "justified violence" whereby anybody who is flipped off can retaliate against the flipper with violence and not commit a crime and the only one who commit an offense was the flipper?

A: Words, by themselves, are rarely enough to make out a crime (exceptions: threat to assassinate the President of the USA; lying to a law enforcement officer in a manner that obstructs justice; inciting a group to riot; falsely shouting "fire" in a crowded theater).

 

Your allegations don't rise to the level of anything other than a protected 1st Amendment exercise of free expression.


And would raising one's voice in public in an angry response to provocation be considered "disorderly conduct" and an actionable offense?

 

A: No. Not without some other manifestation of a threat of physical violence.

 

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33574
Experience: Retired (mostly)
socrateaser and 3 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

In your previous response, you wrote: "Accosting, to me, means physical contact." FYI -- Meriam-Webster defines "accost" as: "To approach and speak to often in a challenging or aggressive way." There are other definitions of "accost" that include "assault" which would include the concept of physical contact, but "accost" by itself does not mean physical contact exclusively and in common vernacular may include the verbal component of a confrontation without there being physical contact. The legal rules and definitions regarding "assault" are well defined but may be less so for "accosting." So I believe I am correct in describing an aggressive verbal confrontation brought against me without physical contact as an "accost" -- but let me know if legally, an "accost" automatically means an "assault" and is actionable in a court of law under the rules against assault.

Expert:  socrateaser replied 1 year ago.

There is a difference between civil and criminal assault under the common law. However, Texas does not adhere to the common law definition of assault, so the general definitions do not apply.

Under the Texas Penal Code, "[a] person commits an assault if he `intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.'" Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (quoting TEX. PENAL CODE ANN. § 22.01(a)(3) (Vernon [Supp.2006])).

Hope this helps.

socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33574
Experience: Retired (mostly)
socrateaser and 3 other Legal Specialists are ready to help you

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