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
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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