In Texas, one commits a violation of Texas Penal Code 37.10, Tampering with Government Records, if any of the following are identified:
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (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.
We have requested records we knew would be required to be maintained by the City of Kyle. The Chief Administrator for the Police Department is required to have job knowledge to satisfy the requirement to perform the duties of Record Custodian for his Department, as identified in the City of Kyle Charter:
The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Department head means the officer who by ordinance, order, or administrative policy is in charge of an office of the city that creates or receives records.
All city records as defined in section 2-499 are hereby declared to be the property of the city. No city official or employee has, by virtue of his position, any personal or property right to such records even though he may have developed or compiled them. The unauthorized destruction, removal from files, or use of such records is prohibited.
(Ord. No. 508, § 3, 8-7-2007)
In addition to other duties assigned in the division, department heads shall:
(1) Cooperate with the records management officer in carrying out the policies and procedures established in the city for the efficient and economical management of records and in carrying out the requirements of this division;
(2) Adequately document the transaction of government business and the services, programs, and duties for which the department head and his staff are responsible;
(3) Maintain the records in his care and carry out their preservation, microfilming, destruction, or other disposition only in accordance with the policies and procedures of the records management program of the city and the requirements of this division.
(Ord. No. 508, § 8, 8-7-2007)
As you can see, these are city ordinances, this means the items are government regulations. There are also state and federal regulations one should be aware of, such as the Texas Commission on Law Enforcement (TCOLE) record retention requirements and training for Chief Administrators:
Commission Rule 211.19
An agency chief administrator is responsible for making any and all reports and submitting any and all documents required of that agency by the commission.
Per the Chief Administrator Desk Guide, published by TCOLE:
Appointment of individuals already licensed by TCOLE:
The Texas Occupations Code 1701.451 mandates that appointing agencies conduct a specific pre-employment background investigation in accordance with TCOLE guidelines, on any person who has already served in a TCOLE licensed capacity. This is referred to as the F-5R process. This process is in addition to, not in replacement of, the normal background investigation. Chief administrators must ensure all pre-employment background investigation requirements are met, properly recorded and kept readily accessible for inspection at all times. At minimum, the applicant’s file must contain proof of: a properly conducted criminal background check; a signed consent form (release) to view the applicant’s previous employment record(s); written record of contacts made with each of the applicant’s previous employers (F-5R); legible copy of the applicant’s TCOLE training and service record (electronic PSR); and a proper, legibly completed personal history statement (PHS) – free template available on TCOLE website
Audits of Agency Records:
Section 1701.162 of the Texas Occupations Code requires that all law enforcement agencies in the state be audited at least once every five (5) years. Agencies found to have numerous or repeated deficiencies will be evaluated more frequently, as determined by the Commission.
Random audits of agency records are intended not only to ensure full compliance with all legislatively mandated requirements; but to appraise chief administrators and/or their designees of changes in administrative rules and TOC statutes. The ultimate objective of the field inspection program is to help stake holders achieve full compliance and prevent serious infractions. Agency records are compared with TCOLE records to ensure their accuracy and authenticity. When errors or deficiencies are uncovered, immediate assistance is provided to rectify the discrepancies.
Chief administrators are responsible for the integrity and security of credentialing records and training files for each licensee appointed to their agency. This includes making all required documents immediately available to TCOLE representatives upon request. All licensing, educational and proficiency records must be retained by the appointing agency for a minimum of five (5) years after the licensee’s date of termination. Failure to maintain these records is a serious violation of rule and statute subject to suspension of the chief administrator’s own license, administrative fines, and in some cases, even criminal prosecution.
Here is the last audit conducted by TCOLE on the City of Kyle Police Department:
Here is the notarized signature of the Chief Administrator, confirming the records exist:
Here is our most recent request and answer from the City of Kyle:
As one can clearly see, it would be hard to disprove “intentionally,” and/or “knowingly,” to the records retention requirements of the Federal, State, and Local policies, procedures, regulations, ordinances, laws, and otherwise.
We believe this is a very clear violation of 37.10; especially, when were present the repeated requests for records, to confirm intent to conceal required to possess records.
We do have a complaint filed with the City of Kyle’s Ethics Compliance Officer. We have also sent information to the Hays County Criminal District Attorney’s Office (due to the Abuse of Official Capacity allegation we have made, in counter to the Police Chiefs claims).
We believe we are perfectly justified and have provided sufficient evidence for Preponderance of the Evidence, which is a higher standard than Probable Cause.
What are your thoughts?