What is perjury under Texas law?
Texas Penal Code § 37.02 defines perjury as making a false statement under a lawful oath — or swearing to the truth of a previously made false statement — with intent to deceive and knowledge of the statement's meaning. It is a Class A misdemeanor; materiality is not required.
- A false statement — § 37.02(a)
- The accused must have made a representation of fact that was untrue, or sworn to the truth of a previously made false statement. A "statement" is "any representation of fact," and the offense is not limited to live trial testimony. Opinion, prediction, or a literally true but misleading answer is not a "false statement." As the Fort Worth Court of Appeals explained, the 1974 codification "liberated the term from the restrictive formalities accompanying an 'affidavit' and expanded the category of utterances potentially criminal." Martin v. State, 896 S.W.2d 336, 339 (Tex. App.—Fort Worth 1995, no pet.).
- Under a lawful oath — required or authorized by law
- The statement had to be "required or authorized by law to be made under oath," and the oath must be administered by someone authorized to give it. A notary qualifies, and the authority "did not wane because nothing required the [defendant] to act under oath." Martin, 896 S.W.2d at 340. If the oath was defective or the official lacked authority, the lawful-oath element fails. The offense reaches affidavits, depositions, written declarations, applications signed under oath, and administrative testimony.
- Intent to deceive — § 37.02(a)
- The accused must have acted "with the intent to deceive." Martin, 896 S.W.2d at 338. A good-faith error, a misunderstanding of the question, or a faulty memory is the opposite of intent to deceive and is frequently the heart of the defense. The offense is complete the instant a person swears to something known to be false — "[t]here was no need for anyone else to see or rely upon the document." Id. at 338.
- Knowledge of the statement's meaning
- The accused must have known "the meaning of the statement uttered." Id. Ambiguous questions, compound questions, and confusing phrasing can show the speaker did not actually understand what was being asked, undermining this element. Notably absent from the list is materiality — the State does not have to prove the lie mattered for simple perjury.
What makes § 37.02 distinct from felony aggravated perjury is what it leaves out: materiality is not an element of simple perjury. A trivial false statement under a lawful oath can satisfy § 37.02. Materiality only enters the picture under § 37.03 (aggravated perjury), discussed below. That single distinction usually decides whether a client is facing a misdemeanor or a felony, and it is the first thing the defense maps on any perjury file.
Perjury sits in Chapter 37 of the Penal Code — "Perjury and Other Falsification" — alongside related offenses such as aggravated perjury (§ 37.03), false report to a peace officer, and tampering with a governmental record. Because the offense turns entirely on the precise words sworn to, the exact oath administered, and the speaker's mental state, the defense audit is document-driven from the first day: the transcript, the signed instrument, and the proceeding record decide most perjury cases long before trial.
Is perjury a felony? Classification & punishment
Simple perjury under § 37.02 is a Class A misdemeanor — up to 1 year in county jail and a $4,000 fine — not a felony. It becomes the third-degree felony of aggravated perjury under § 37.03 only when the false statement is material and made during or in connection with an official proceeding.
Simple perjury under § 37.02 is a Class A misdemeanor. It is not a felony. The confusion comes from aggravated perjury under § 37.03, which is a third-degree felony. In practice the charging decision turns on whether the false statement was material and tied to an official proceeding — the two added elements that elevate the grade.
| Offense | Statute | Classification | Confinement | Maximum fine |
|---|---|---|---|---|
| Perjury (simple) | § 37.02 | Class A misdemeanor | Up to 1 year, county jail | $4,000 |
| Aggravated perjury | § 37.03 | Third-degree felony | 2–10 years, state prison | $10,000 |
| Trigger for the felony | The false statement is material AND made during or in connection with an official proceeding (§ 37.03(a)). | |||
Beyond the statutory ceiling, a perjury conviction carries weight a fine total never captures. Because the offense is a crime of dishonesty, it can be used to impeach your credibility as a witness in any future case, and it can surface in professional-license and employment screening. For many clients, that collateral damage — not the jail exposure — is the reason a misdemeanor perjury charge is worth fighting hard.
Elements the State must prove
To convict under § 37.02 the State must prove, beyond a reasonable doubt, a false statement, made under a lawful oath, with intent to deceive, and with knowledge of the statement's meaning. Each element is a place where a defense can be built — and materiality is deliberately not on the list.
To convict under § 37.02, the prosecutor must prove each of the following beyond a reasonable doubt. Each element is a place where a defense can be built.
- A false statement
- The accused made a representation of fact that was untrue, or swore to the truth of a previously made false statement. Opinion, prediction, or a literally true but misleading answer is not a "false statement."
- Under a lawful oath
- The statement had to be "required or authorized by law to be made under oath." The oath must be administered by someone authorized to give it. A notary qualifies, and the authority "did not wane because nothing required the [defendant] to act under oath." Martin, 896 S.W.2d at 340. If the oath was defective or the official lacked authority, the element fails.
- Intent to deceive
- The accused must have acted "with the intent to deceive." Martin, 896 S.W.2d at 338. A good-faith error, a misunderstanding of the question, or a faulty memory is the opposite of intent to deceive and is frequently the heart of the defense.
- Knowledge of the statement's meaning
- The accused must have known "the meaning of the statement uttered." Id. Ambiguous questions, compound questions, and confusing phrasing can show the speaker did not actually understand what was being asked.
Notice what is missing from this list: materiality. The State does not have to prove the lie mattered for simple perjury. That omission is deliberate — it is precisely what separates the misdemeanor from the felony of aggravated perjury under § 37.03.
How prosecutors prove perjury — and the two-witness rule
Under Code of Criminal Procedure Article 38.18, no person may be convicted of perjury if proof that the statement is false rests solely on the testimony of one witness other than the defendant. The State needs a second witness or strong corroboration — a frequently file-dispositive requirement.
Perjury is one of the few Texas offenses with a special evidentiary rule baked into how it must be proved. Under Code of Criminal Procedure Article 38.18, "[n]o person may be convicted of perjury or aggravated perjury if proof that his statement is false rests solely upon the testimony of one witness other than the defendant." Goswick v. State, 559 S.W.3d 258, 263 (Tex. App.—Eastland 2018, no pet.). The State needs a second witness, or one witness plus strong corroborating evidence, to establish that the sworn statement was false. One person's word against the defendant's is not enough.
This rule has real teeth. In Goswick, the State indicted the defendant for a specific false statement but produced only one witness to prove the falsity. The court reversed and entered a judgment of acquittal, holding the evidence legally insufficient. Id. at 268. The two-witness requirement is not a technicality a prosecutor can argue around; when it is not met, "the court shall instruct the jury to render a verdict of acquittal." Id. at 264 (quoting Tex. Code Crim. Proc. art. 38.17).
There is one route around the rule. The State can charge under § 37.06 by alleging that the defendant made two irreconcilable statements under oath, both of which cannot be true. As Goswick put it, "an indictment under Section 37.06 removes an element of perjury or aggravated perjury (the statement's falsity) that the State must otherwise prove," and the State is "no longer bound by the requirement that it produce more than one witness." Id. at 266. But to use that pleading, the charging instrument "must allege that the declarant made inconsistent statements under oath, both of which cannot be true." Id. at 263. If the State drafts an ordinary perjury indictment and only one witness shows up, the two-witness rule controls — and that is an early, file-dispositive question the defense presses on every perjury case.
Practically, the State proves perjury through transcripts, signed and notarized documents, recordings of the proceeding, and the testimony of people who can contradict the sworn statement. The defense audit runs the other direction: Was the oath properly administered? Is there a clean transcript of the exact words? Can the State field a second witness on falsity, or is it relying on one person? Did the question actually call for the answer the State claims is false?
Materiality and the "official proceeding"
Materiality is not an element of simple perjury — it matters only for felony aggravated perjury under § 37.03. A statement is material under § 37.04 if it could have affected the course or outcome of an official proceeding, and whether it is material is a question of law for the judge.
Materiality is defined by § 37.04: a statement is material "if it could have affected the course or outcome of the official proceeding," regardless of whether it was admissible. Critically, "whether a statement is material in a given factual situation is a question of law" for the judge, not the jury. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1995) (quoting Tex. Penal Code § 37.04(c)).
The Court of Criminal Appeals also held in Rosenbaum that a defendant cannot force a pretrial mini-trial on materiality; "a facially valid indictment is sufficient to mandate trial of the charge on its merits." Id. Materiality gets resolved on the law, by the court — a meaningful difference from how the rest of the elements are litigated. For simple perjury under § 37.02, materiality plays no role at all: a false statement under a lawful oath is enough.
Why this matters to a person under investigation: prosecutors sometimes overcharge a borderline statement as aggravated perjury when the misdemeanor is the better fit, or threaten the felony to extract a plea. Pinning down whether the statement was truly material and tied to an official proceeding is often the difference between a felony and a misdemeanor outcome — and it is a determination the defense litigates directly to the judge.
How aggravated perjury (§ 37.03) differs
Aggravated perjury under § 37.03 adds two requirements to simple perjury — the false statement must be material and made during or in connection with an official proceeding — and raises the offense from a Class A misdemeanor to a third-degree felony punishable by 2 to 10 years.
This page is about simple perjury under § 37.02. Its felony cousin, aggravated perjury under § 37.03, adds two requirements: the false statement must be material, and it must be made during or in connection with an official proceeding. Meet those, and a Class A misdemeanor becomes a third-degree felony punishable by two to ten years in prison and a fine up to $10,000. For the full felony analysis, see our separate aggravated perjury defense page.
Because the felony hinges on materiality — a question of law for the judge under § 37.04(c) and Rosenbaum — the line between the two offenses is litigated, not assumed. A statement made in a casual or non-official context, or a statement that could not have affected the course or outcome of the proceeding, belongs under § 37.02 even when the State pleads § 37.03. The defense audits the indictment against the proven facts and presses for the correct grade, the correct court, and the correct exposure.
The forum follows the grade. A simple-perjury misdemeanor is filed by information and tried in a county court at law; aggravated perjury is presented to a grand jury and tried in a district court. That procedural difference — misdemeanor information versus felony indictment — is itself a point of leverage when the State's materiality theory is thin.
Local DFW practice
A simple-perjury misdemeanor is filed by information and heard in a county court at law; aggravated perjury goes to a grand jury and a district court. In Collin, Dallas, Denton, and Tarrant counties, perjury referrals frequently originate inside another case — an affidavit, a deposition, or a benefits application.
Where a perjury case is heard depends on the level charged. A simple-perjury misdemeanor is filed by information and tried in a county court at law; aggravated perjury is presented to a grand jury and tried in a district court. In the four counties the firm serves, that means:
- Collin County — misdemeanor perjury runs through the County Courts at Law at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney; felony aggravated perjury is heard in the district courts there.
- Dallas County — cases are handled at the Frank Crowley Courts Building, with misdemeanors in the county criminal courts and felonies in the district courts.
- Denton County — perjury matters proceed through the Denton County courts at the Courts Building in Denton.
- Tarrant County — cases are heard at the Tim Curry Criminal Justice Center in Fort Worth.
Perjury referrals frequently originate inside another case — a family-law affidavit, a protective-order hearing, a civil deposition, or an application for a government benefit. That origin matters: the assigned prosecutor often already has the underlying file, the transcript, and a theory. Engaging counsel before the case is formally filed lets the defense shape the record and, where appropriate, present mitigation directly to the intake or grand-jury division. L and L Law Group defends perjury cases across all four counties from its Frisco office at 5899 Preston Rd, Suite 101.
Collateral consequences & clearing your record
A perjury conviction is a crime involving dishonesty: it can impeach your testimony in later proceedings, trigger professional-license discipline, and complicate immigration matters. A dismissal or acquittal may allow an expunction; a final conviction generally cannot be expunged.
A perjury conviction is a crime involving dishonesty, and that label follows a person. It can be used to impeach your testimony in later proceedings, it can trigger discipline against a professional or occupational license, and it can complicate immigration matters because offenses involving fraud or deceit may be treated as crimes involving moral turpitude. Employers running background checks see it for what it is. These consequences are why the firm treats even a misdemeanor perjury charge as a serious matter.
The path to clearing the record depends on the outcome. If the case is dismissed or you are acquitted, you may be eligible for an expunction under Code of Criminal Procedure Chapter 55, which erases the arrest record. If you receive and complete deferred adjudication, you may qualify for an order of nondisclosure that seals the record from public view. A final conviction for perjury, however, generally cannot be expunged — one more reason the time to fight is before a conviction is entered.
The right time to engage counsel is at the first sign of a perjury referral — before any further statement to investigators, before the charging decision, and before witness memories fade. Because perjury turns on intent to deceive and the precise words used under oath, an unguarded explanation can supply the very evidence the State lacks. Co-founding partners Reggie London and Njeri London handle these cases personally, from the investigation stage through plea or trial, with collateral-consequence analysis built into every strategic decision. Free initial consultations are available; contact the firm at (972) 370-5060 or info@landllawgroup.com to schedule.
