Comment

This manner of committing the offense requires the document at issue to be a real governmental record. Putting fictitious information in a fake driver’s license, for example, does not constitute tampering under Tex. Penal Code § 37.10(a)(1) because the license was not issued by government and thus is not a “governmental record” under the statutory definition. Tex. Penal Code § 37.01(2)(C); Thompson v. State, 215 S.W.3d 557, 559 (Tex. App.—Texarkana 2007, no pet.) (rendering acquittal for prosecution under section 37.10(a)(1) and suggesting same for prosecution under section 37.10(a)(5)—because both require an actual governmental record—but indicating section 37.10(a)(2) is the proper one to prosecute use of counterfeit governmental records).

Section 37.10(a)(1) also requires that the document be a governmental record at the time the defendant makes the false entry in or alteration of the document. Ex parte Graves, 436 S.W.3d 395, 399 (Tex. App.—Texarkana 2014, pet. ref'd); Pokladnik v. State, 876 S.W.2d 525, 527 (Tex. App.—Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169, 174 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd). Section 37.10(a)(5), which prosecutes the use of the governmental record rather than the entry of false information, lacks this requirement. See State v. Vasilas, 187 S.W.3d 486, 491 (Tex. Crim. App. 2006) (contrasting subsections 37.10(a)(1) and (5)).

Culpable Mental State.  The court of criminal appeals has not considered what element or elements the requirement of “knowingly” applies to: (1) making the entry or alteration, (2) the falsity (of the entry or alteration), or (3) the nature of the thing as a governmental record.

The Committee agreed that the court of criminal appeals would apply “knowingly” to at least the first two elements. Grammatically, “knowingly” modifies the conduct element “making” and likely also continues down the phrase to modify the circumstance that the entry or alteration was false, which may be the gravamen of this manner of committing the offense. But the Committee split on whether the defendant would also be required to know that the law has classified a particular document (like a food stamp application) as a governmental record. For some members, this came too close to requiring actual knowledge of the law. See Tex. Penal Code § 8.03(a) (“It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect.”). Also, the legislature specified further mental states in section 37.10(a)(2). The fact that it did not do so in relation to the governmental record element in (a)(1) may indicate a mental state was not intended to apply.

A smaller subset of the Committee believed knowledge should apply to the governmental record element. The definition of “governmental record” in Tex. Penal Code § 37.01(2)(A) includes “anything belonging to, received by, or kept by government for information,” and thus may encompass incidental papers or lists in a government office that an office worker may not recognize as qualifying. This same concern was raised in Chambers v. State, 523 S.W.3d 681, 687–88 (Tex. App.—Corpus Christi–Edinburg 2017, pet. granted), although the court of appeals ultimately found the defense in section 37.10(f) alleviated these concerns. These members believed the gravamen of the offense extended to the knowledge element and would set out the elements as follows:

Defense of No Effect on Government Purpose. Tex. Penal Code § 37.10(f) provides a defense to prosecution under section 37.10(a)(1), (2), and (5) if the jury finds, or has a reasonable doubt that, “the false entry or false information could have had no effect on the government’s purpose for requiring the governmental record.” As the court of appeals in Chambers observed, an implicit element of this defense is that the government required the record in the first place. Chambers, 523 S.W.3d at 687. Since the burden is on the state to disprove it, the state would have to show: (1) the government required the record; (2) the government had a purpose for requiring the record; and (3) the false entry or information could have had an effect on that purpose.

The third element only requires that the false entry “could have had” an effect on the government’s purpose. This may include situations of false entries that in fact had no effect but could have had an effect under a different set of circumstances. See Baumgart v. State, No. 01-14-00320-CR, 2015 WL 5634246 (Tex. App.—Houston [1st Dist.] Oct. 5, 2016, pet. ref’d) (not designated for publication) (upholding jury’s rejection of defense despite evidence that officials intercepted falsified governmental record so that it was never processed). Not only that, there is no requirement that the effect be negative, although including as an “effect” a situation where a false entry actually better facilitates the government’s purpose for the record could perhaps be an absurd result. See Ex parte White, 506 S.W.3d 39, 42 (Tex. Crim. App. 2016) (applying the plain meaning of a statute’s text unless it is ambiguous or leads to absurd results the legislature could not have intended).

The defense refers to “false entry or false information” but this second term—“false information”—is not defined or referenced anywhere else in the statute. Because the defense applies to manners of committing the offense that do not require a false entry (like when the entire purported governmental record is fake or inaccurate), the legislature may have chosen “false information” to invoke these diverse situations. In any event, the ordinary meaning of the phrase should provide jurors sufficient guidance in applying the defense.