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.




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           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




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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




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