Untitled Texas Attorney General Opinion ( 1976 )

The Honorable A. R. Schwartz Opinion No. H-808 Chairman Senate Jurisprudence Committee Re: Whether a peace State Capitol officer's destruction of Austin, Texas 78711 an arrest record pursuant to an official expunge- ment policy is an offense under section 37.10, Penal Code. Dear Senator Schwartz: You have requested our opinion regarding the applica- bility of the exception provided in section 37.10(b) of the Penal Code to a peace officer's destruction of a record relating to an individual's arrest. Sedtion 37.10 provides in pertinent part: (a) A pereon commit6 an offense if he: . . . (3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a govern- mental record. (b) It is an exception to the application of Subsection (a)(3) of this section that , the governmental record is destroyed pur- suant to legal authorization. p. 3407 . . .- The Honorable A. R. Schwartz - page 2 (H-808) "Governmental record" is defined in section 37.01 as "anything: (A) belonging to, received by, or kept by government for informa- tion; or (B) required by law to be kept by others for information of government." No Texas statute specifically requires that records of arrests be maintained by any law enforcement agency. But see V.T.C.S. arts. 4413(14) and 4413(16). In our opinion, xject to the limitations noted below, a record of an arrest may be destroyed pursuant to the same authority by which it is kept. If such records are required or permitted to be maintained by city charter or by order of the commissioners court, they may be disposed of only as provided in the city charter or commissioners court order. If they are main- tained pursuant to an order of the sheriff or chief of police, that official must authorize their destruction. If they are kept merely on the initiative of individual offi- cers, the officer who files the record is authorized to dispose of it. We note two limitations upon the authority to destroy records of arrests. The disposition of any record relating to an individual's arrest is, of course, subject to over- riding judicial order. Furthermore, since a record of a person's arrest is a "public record" under the Open Records Act, article 6252-17a, V.T.C.S. [See Houston Chronrcle Pub. Co. v. City of Houston, 531S..m(Tex. -m Civ. App. -- Houston [nth Dist.]mwrit filed)], it may not be destroyed after it has become the subject of a valid request under that statute. In such a case, destruction of the record might well constitute an offense under section 39.02 of the Penal Code. SUMMARY Subject to judicial order and to the public's rights under the Open p.3408 . ‘.. - h 0 The Honorable A. R. Schwartz - page 3 (H-808) Records Act, a record of a person's arrest may be destroyed pursuant to the same authority by which it is maintained. Very truly yours, Attorney General of Texas APPROVED: jwb p-3409