Clarity on tampering with a governmental record

By Clinton Morgan
Assistant District Attorney in Harris County

Penal Code §37.10 is broader than its name implies. “Tampering with a Governmental Record” sounds like it proscribes tampering—i.e., altering a thing that exists—with a governmental record—i.e., some record the government has. Like breaking into the courthouse at night and changing property records so that I now own my neighbor’s pool.

            But §37.10, which takes up a whole page in the TDCAA code book, covers many things that feel more like forgery or fraud. Making a fake driver’s license from scratch is “tampering with a governmental record,” even though it involves no tampering and the government has no record of it. Given the length and breadth of the statute, it is unsurprising that most appeals from it deal with what, exactly, it makes an offense.

            In Chambers v. State,[1] the Court of Criminal Appeals dealt with a case in which the defendant, a government employee, submitted false reports to a government agency. It later turned out that the reports he submitted were not required reports. Is submitting a false, but optional, report “tampering with a governmental record?” The Court held that it could be. But the fact that the agency collecting the report had no use for it meant the defendant could not have the “intent to harm or defraud,” meaning the offense is merely a misdemeanor.

Background
Chambers was the chief of police of Indian Lake, a small town in Cameron County. While he was the only paid year-round police officer, the department had “20 to 30” volunteer reserve officers. In January 2015, the Texas Commission on Law Enforcement (TCOLE) audited the department’s records and determined the department did not have valid firearms proficiency records for several reserve officers.

            TCOLE gave the department 10 days to correct this deficiency. The letter from TCOLE advised that if the department did not comply, it could take administrative actions against Chambers’s peace officer license or assess a hefty administrative penalty.

            Chambers ordered his only paid subordinate, Avalos, to falsify the missing proficiency records. Avalos contacted TCOLE about this, and TCOLE told him to follow Chambers’s instructions. Avalos did so, creating and submitting 14 false reports. Chambers was then charged with 14 counts of tampering with a governmental record. The indictments alleged he did so with the intent to harm or defraud, which made the offense a state jail felony.

            The jury was instructed with two statutory definitions of “governmental record”: “anything belonging to, received by, or kept by government for information,” or “anything required by law to be kept by others for information of government.”[2] The jury convicted Chambers on all counts. He was given probation and a fine.

            On appeal, Chambers re-urged an argument he had made at trial: The reports were not “governmental records.” It turns out he had a point. Every police agency must maintain firearms proficiency records for every peace officer it “employs.” But as the appellate courts here would later determine, based on provisions in the Administrative Code, Occupations Code, and Local Government Code, reserve officers are not “employed,” they are “appointed.” Thus the police department had no obligation to maintain the reports, and TCOLE had no authority to demand them. 

            Chambers presented this argument in a few ways on appeal. First, he argued that because the department was not required to keep the firearms proficiency records, they were not “governmental records”; thus, the evidence was insufficient to show he committed the charged offense. Second, he argued that the trial court had erred by rejecting his request to instruct the jury on the statutes showing that reserve officers were not “employed.” Third, he argued that because TCOLE had no use for the reports, it was impossible for him to have intended to harm or defraud the agency by submitting false reports.

            The Thirteenth Court rejected all these arguments.[3] Regarding sufficiency, the Thirteenth Court pointed out that Penal Code §37.01 has several definitions of “governmental record,” only one of which is something the government is “required” to keep. Even if TCOLE or the local department was not required to keep the reports, they were something “belonging to, received by, or kept by government for information” because they were created by Chambers and Avalos in their capacity as government employees.

            The Thirteenth Court rejected the jury-charge complaint for a similar reason— whether the reserve officers were “employees” went only to whether the reports were “required,” not to whether they were governmental records.

            Regarding the intent to defraud or harm, Chambers argued that there could not have been harm or fraud because the State had neither a proprietary nor pecuniary interest in the reports. The Thirteenth Court rejected this notion, pointing to cases holding that one can “defraud” someone else by “caus[ing] another to rely upon the falsity of a representation, such that the other person is induced to act or is induced to refrain from acting.”[4] Because Chambers had ordered the false reports to be filed to prevent TCOLE from fining him, the Thirteenth Court held the evidence was sufficient to show an intent to defraud.

            On discretionary review, the Court of Criminal Appeals upheld the first two holdings but reversed the third. It remanded the case to the Thirteenth Court to address a question that court had missed on the first try.

            Writing for a six-judge majority, Judge Newell began his opinion by addressing Chambers’s jury-charge argument. Chambers argued the jury should have been instructed on the section of the Local Government Code that shows reserve officers are “appointed” and not “employed.”[5] The court held that the omission of this instruction was harmless because it went only to whether the government was required to keep the firearms proficiency reports, not whether they were “governmental records” under other statutory definitions.

            Chambers advanced an alternative argument, that there must be a “government purpose” for a document to constitute a “governmental record.” Using the plain text of the statute, the Court rejected that argument as well: The “government purpose” of a record is relevant for some theories of liability under §37.10 but not others. Implicit in these holdings was a rejection of Chambers’s sufficiency challenge regarding whether the reports were “governmental records.”

Legal impossibility
The Court looked more favorably on Chambers’s argument that the evidence was insufficient to show he had the intent to defraud or harm. Section 37.10 has a complicated punishment scheme, ranging from a Class C to a second-degree felony, but most instances of the offense are a Class A misdemeanor, unless the State alleges and proves the defendant had the intent to harm or defraud, in which case it is a state jail felony.[6]

            The Court treated Chambers’s argument as an issue of “legal impossibility.” This seldom-used doctrine applies to attempt or intent crimes, and it holds that if the act the defendant attempted or intended to commit was not a crime, then the attempt or intent cannot be criminalized. For example, in Lawhorn v. State,[7] the case on which the Court relied, the defendant was an inmate who escaped from custody. Twenty minutes later, he broke into a house while hiding from police. He was convicted of burglary with the intent to commit the felony offense of escape. The court overturned the conviction because the offense of escape had already been completed, so whatever Lawhorn intended to do when he broke into the house could not be the felony offense of escape.

            In Chambers, the Thirteenth Court had jumped to the conclusion that Chambers’s intent of keeping TCOLE from acting against him was an intent to harm or defraud. The Court of Criminal Appeals backed up a step. It viewed Chambers’s intent more discretely: He intended to stop TCOLE from taking administrative action against him. Because TCOLE had no legal right to take administrative action against Chambers, it could not have been defrauded or harmed by Chambers’s act. Thus, the evidence was insufficient to show Chambers had the intent to harm or defraud.

Sufficiency claim
After this interesting holding, the Court turned to a matter that will interest only appellate lawyers. In the Thirteenth Court, after raising a general sufficiency claim in his original brief, Chambers had filed a reply brief clarifying that he believed the evidence was insufficient to support the jury’s rejection of a statutory defense that bars prosecution if “the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.”[8] The Thirteenth Court had not addressed this argument. Normally a party cannot raise a new issue in a reply brief, but here the Court of Criminal Appeals held this wasn’t a new issue, but a clarification of the original issue, so it remanded the case for the Thirteenth Court to consider. There are presently no cases interpreting this statutory defense, so this case will merit attention again when the Thirteenth Court issues its opinion on remand. 

            Judge Keasler dissented without opinion. Judge Slaughter dissented in an opinion joined by Judge Yeary. She would have held the evidence insufficient to show that the firearms proficiency reports were “governmental records.” That is because the applicable definition of “governmental records here” requires that the “record” be “kept by government for information.” Judge Slaughter believed that because TCOLE had no use for the reports, the evidence was insufficient to show they were kept “for information.”

Takeaways
There are a couple of takeaways from this case. The most obvious is that §37.10 is a big, complicated statute that covers a lot of things. This point was emphasized a week after Chambers, when the Court of Criminal Appeals released Alfaro-Jimenez v. State.[9] There, the defendant was charged with tampering with a governmental record for creating a fake Social Security card. But the State used the wrong definition of “governmental record” in the charging instrument, and the defendant was acquitted on appeal. Chambers and Alfaro-Jimenez show that prosecutors and defense attorneys alike need to pay particular attention on these cases and take both the statute and the charging instruments literally.

            The second takeaway regards the doctrine of impossibility. It does not come up often, so this case is a useful reminder. In attempt or intent offenses, the question is not, “Did the defendant attempt or intend to commit a crime?” but rather, “Was the act the defendant attempted or intended to commit a crime?” Even if a defendant thinks he is harming or defrauding someone, if the specific act he does could not cause harm or fraud, that is not criminal.

Endnotes

[1] ___ S.W.3d ___, No. PD-0771-17, 2019 WL 2612770 (Tex. Crim. App. June 26, 2019).

[2] See Tex. Penal Code  §37.01(2)(A), (B).

[3] Chambers v. State, 523 S.W.3d 681 (Tex. App.—Corpus Christ 2017) rev’d, ___ S.W.3d ___, No. PD-0771-17, 2019 WL 2612770 (Tex. Crim. App. June 26, 2019).

[4] Id. at 690 (quoting Wingo v. State, 143 S.W.3d 178, 187 (Tex. App.—San Antonio 2004), aff’d, 189 S.W.3d 270 (Tex. Crim. App. 2006)).

[5] See Tex. Loc. Gov’t Code § 341.012.

[6] Tex. Penal Code §37.10(c), (d).

[7] 898 S.W.2d 886 (Tex. Crim. App. 1995)

[8] Tex. Penal Code §37.10(f).

[9] ___ S.W.3d___, No. PD-1346-17, 2019 WL 2814864 (Tex. Crim. App. July 3, 2019).