An issue has come up here regarding the intent of Tex. Penal Cd. Sect. 37.10(a)(3), which imposes criminal penalties on one who, "intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a geovernmental record."

Our District Clerk interprets this statute to mean that a person commits an offense if he removes a document for inspection, then replaces it in the same place in the file before checking the file back in. Our District Clerk says this is the position of the District Clerk's Association.

While I would absolutely prosecute someone who removes a document from a file in order to "impair the verity, legibility, or availability of a geovernmental record," I cannot see imposing a penalty on someone (an attorney, for example) who "un-prongs" a document in order to read it, then places it back into the file.

What do you think? What is the policy in your county?

When the removal does not otherwise impair the verity, legibility or availability of the document, but allows for proper viewing of the public record, no crime is committed. When the removal allows for proper copying of the court document for certification, no crime is committed. If the DC is adamant, you might be obligated to prosecute them also if they remove papers for copying, afterall, being a District Clerk or a Deputy District Clerk is not an affirmative defense to prosecution under the code

As alluded to by Ms. Gibson, under the clerk's reasoning, a deputy district clerk is guilty of an offense if he/she "removes" a document to make a copy then replaces it in the file. I think that, among other rationales, the clerk's reading of the statute is rebutted by its context; specifically, the other offensive acts involve permanent alteration or destruction of the document. A reading of the document that prevents copies from being made (thereby facilitating utilization of the document) portends an absurd result.

Scott,
I agree with both you and Beck, and that is the opinion that I gave to our District Clerk. Nevertheless, she insists that hers is the position of the District Clerk's Association and she tells me that this is the policy of "all the District Clerks in Texas." Having personally removed items from files in courthouses across the state (in order to make copies or simply read what was under the prong) I was surprised to learn that my actions offended the policies of "all of the District Clerks in Texas." When I posted this query, I was interested in the policies of District (or County) Clerks across the state. Are there any other counties with a "do not unprong the papers" policy?

[This message was edited by John C. Grace on 11-19-04 at .]

John,

Our district clerk's office generally provides copies upon request and payment, so the issue doesn't often arise. They're quite cautious in overseeing the integrity of their files. In fact, I think their policy is that dismantling of the files must be effected by a deputy district clerk, thereby (putatively) triggering the affirmative defense in subsection (e). Nonetheless, the statute must be read within its own context. The list of offending acts under section 37.10(a)(3) -- that is, destroying, concealing, or removing -- constitute an offense only if they "impair the verity, legibility, or availability of a governmental record." Simply taking a document out long enough to make a copy generally does not satisfy this standard. Thus, I reiterate my agreement with your advice, and respectfully dissent from the opinion of the state district clerk's association.

Our District Clerk is also very willing to take a file apart and make copies (for a fee.) The current situation occurred when a document firm sent one of their employees (the owner's son) to the courthouse to make copies of a civil pleading for their client. He checked out the file, took out the pleading, then used a hand scanner to make his copy (thereby depriving the Clerk of her fee.) This prompted the Clerk to kick the kid out of the courthouse and ask our Criminal Division to consider prosecution. The Clerk SWEARS she is only protecting the integrity of the files and is not interested in getting her copy fee. This lead to the broader issue of interpreting TPC 37.10(a)(3). After advising her that we would not prosecute the case under this set of facts, she agreed to let the guy back into the courthouse and would let him scan pleadings under the direct supervision of her staff.

Although I'm unfamiliar with any arrangement reached with our district clerk, our county clerk fairly routinely arranges for contracting (with approval by the commissioners court) with document firms to make public records available for scanning. This, of course, also contemplates payment of a fee. Experience teaches that these dust-ups often are, in fact, fee-driven.

Good grief. In our county our clerk will let any one of the three local attorneys take a file (she does keep a log) back to their office to make copies on their own copying machines. The file has to be back before closing. I am guilty of multiple offenses. Is the removal of each page from the ACCO clasp a separate offense? Thankfully the statute has run on most of the crimes. Please don't call the Rangers.
John