Tampering With Governmental Record: Texas Penal Code §37.10

The Texas Tampering With Governmental Record law gives police the right to arrest you if they believe you faked, altered or destroyed a government record, or that you had a blank or unused record that you intended to use falsely, or you traded in any such false records.

The Tampering With Governmental Record law has not substantially changed over the last few legislative sessions. But in 2021, the lesgislature created a specific penalty level classification for offenses involving an application for a place on the ballot. And in 2023, the legislature created a specific penalty level classification for tampering with temporary tags.

This law has recently been implicated in a high-profile first amendment case, where Sylvia Gonzalez, a retiree in Castle Hills, Texas, won a seat in her City Council and was arrested for Tampering With Governmental Record when she accidentally put the a petition criticizing the local city manager in her personal binder after a public meeting. Brian Morris, from the Institute for Justice, sued and the Supreme Court took up the case.

The Penal Code codifies the Texas Tampering With Governmental Record law under Title 8 “Offenses Against Public Administration,” Chapter 37 “Perjury and Other Falsifications.” Learn more about the Texas offense of Tampering With Governmental Record below.

What is the current Texas law about Tampering With Governmental Record?

The current Texas law defines the offense of Tampering With Governmental Record in Penal Code Section §37.10 as follows:^[1]

(a) A person commits an offense if he:

(1) knowingly makes a false entry in, or false alteration of, a governmental record;

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;

(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;

(5) makes, presents, or uses a governmental record with knowledge of its falsity; or

(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

What changed in 2021

In 2021, the legislature made offenses involving applications for a place on the ballot a Class B misdemeanor, when the actor knowingly provided false information.^[2] Learn more about the punishment for violations of Tampering With Governmental Record here.

What changed in 2023

In 2023, the legislature added this offense to the list of Class A and Class B misdemeanors offenses that do not require a custodial arrest, but only when the tampering involves a temporary tag.^[3] In addition, the legislature made tampering with a temporary tag a Class A misdemeanor.^[4] Learn more about the punishment for violations of Tampering With Governmental Record here.

What are the affirmative defenses to Tampering with Government Record in Texas?

For offenses charged under subsection (a)(6) (possessing, selling, or offering to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully), the statute provides and affirmative defense if you can show that the possession occurred in the actual discharge of official duties as a public servant.^[5]

For offenses charged under subsections (a)(1), (a)(2), or (a)(5) (see above), it is a defense to prosecution that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.^[6]

However, the code specifies that it is not a defense to prosecution under subsection (a)(2) that the record, document, or thing made, presented, or used displays or contains the statement “NOT A GOVERNMENT DOCUMENT” or another substantially similar statement, unless the record, document, or thing displays the statement diagonally printed clearly and indelibly on both the front and back of the record, document, or thing in solid red capital letters at least one-fourth inch in height.^[7]

How can I be charged with a Tampering With Governmental Record offense in Texas?

You can be charged with Tampering with Government Record in Texas if the state’s attorneys believe that each of the elements of 37.10(a) as described in the section above have been met.

What is the statute of limitation for Tampering With Governmental Record in Texas?

Misdemeanor level Tampering With Governmental Record charges have a two-year limitations period.^[8] Felony-level offenses have a three-year limitations period.^[9]

What is the penalty for a Texas Tampering With Governmental Record offense?

Unless subsection (d) or subdivisions (2), (3), (4), (5), or (6) apply, Tampering with Government Record is punished by default as a Class A misdemeanor, unless the actor’s intent was to defraud or harm another, in which event the offense is a state jail felony.^[10]

Subdivision (2) specifies that violations of the Tampering with Government Record law are classified as felonies of the third degree if the governmental record was:

(A) a public school record, report, or assessment instrument required under Chapter 39, Education Code, data reported for a school district or open-enrollment charter school to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Section 42.006, Education Code, under a law or rule requiring that reporting, or a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor’s intent is to defraud or harm another, in which event the offense is a felony of the second degree;

(B) a written report of a medical, chemical, toxicological, ballistic, or other expert examination or test performed on physical evidence for the purpose of determining the connection or relevance of the evidence to a criminal action;

(C) a written report of the certification, inspection, or maintenance record of an instrument, apparatus, implement, machine, or other similar device used in the course of an examination or test performed on physical evidence for the purpose of determining the connection or relevance of the evidence to a criminal action; or

(D) a search warrant issued by a magistrate.

Subdivision (3) specifies that violations of the Tampering with Government Record law are classified as Class C misdemeanors if the governmental record is a governmental record that is required for enrollment of a student in a school district and was used by the actor to establish the residency of the student.

Subdivision (4) specifies that violations of the Tampering with Government Record law are classified as Class B misdemeanors if the governmental record is a written appraisal filed with an appraisal review board under Section 41.43(a-1), Tax Code, that was performed by a person who had a contingency interest in the outcome of the appraisal review board hearing.

Subdivision (5) specifies that violations of the Tampering with Government Record law are classified as Class B misdemeanors if the governmental record is an application for a place on the ballot under Section 141.031, Election Code, and the actor knowingly provides false information under Subsection (a)(4)(G) of that section.

Subdivision (6) specifies that violations of the Tampering with Government Record law are classified as Class A misdemeanors if the governmental record is a temporary tag issued under Chapter 502 or 503, Transportation Code.

Subsection (d) specifies that violations of the Tampering with Government Record law are classified as:

(1) a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the defendant is convicted of presenting or using the record;

(2) a felony of the third degree if the offense is committed under:

(A) Subsection (a)(1), (3), (4), or (6); or

(B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and

(3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor’s intent in committing the offense was to defraud or harm another.

Learn about the differences between grades of felonies and misdemeanors here.

Can you get probation for Tampering With Governmental Record in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Tampering With Governmental Record, and judges are also allowed to accept deferred adjudication plea deals.^[11]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[12] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[13]

What level of crime is Tampering With Governmental Record in Texas?

The Penal Code classifies Tampering With Governmental Record as a Class A misdemeanor, state jail felony, second degree felony, or third degree felony, depending on the circumstances.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §37.10. This law is current as of the 88th Legislature Regular Session.^2. Texas Penal Code §37.10(c)(5), as enacted by HB 4555, 87th Legislature (RS), Section 3^3. Texas Code of Criminal Procedure Art. 14.06(d)(5-a), as enacted by HB 914, 88th Legislature (RS), Section 1^4. Texas Penal Code §37.10(c)(6), as enacted by HB 914, 88th Legislature (RS), Section 3^5. Texas Penal Code §37.10(e)^6. Texas Penal Code §37.10(f)^7. Texas Penal Code §37.10(j)^8. Code of Criminal Procedure 12.02(a)^9. See Code of Criminal Procedure 12.01(9)^10. Texas Penal Code §37.10(c)^11. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^12 Art. 42A.053(c), Texas Code of Criminal Procedure^13. Art. 42A.054(b), Texas Code of Criminal Procedure