August 20, 1993 

 

Honorable Andy J. McMullen 

District Attorney 

220th Judicial District 

P.O. Box 706 

Hamilton, Texas 76531

Letter Opinion No.  93-65 

 

Re:   When, if ever, an application for a place 

on a party primary ballot, filed with the 

party's county chairman, becomes a 

"governmental record" for purposes of Penal 

Code, section 37.01    (ID#  16194)



 

Dear Mr. McMullen:  

 

	You ask at what point, if ever, an application for a place on a party primary ballot 

for a public office, filed with the party's county chairman, becomes a "governmental 

record" for purposes of Penal Code, chapter 37.  See Elec. Code § 172.022 (authority 

with whom application to appear on primary ballot is filed). 

 

	Section 37.01(1) defines "governmental record," for purposes of that chapter as: 

 

	(A)  anything belonging to, received by, or kept by government 

for information; 

 

	(B)  anything required by law to be kept by others for 

information of government; or 

 

	(C)  a license, certificate, permit, seal, title, or similar document 

issued by government.  

	 

	We first address your concern that "the application was never filed in a 

governmental office."  Although a political party may not be a public entity, nor its 

officers, such as the county chairman with whom the application here was filed, public 

officers, we think the primary ballot application at issue here nevertheless falls within the 

definition of "governmental record" set out in section 37.01(1)(B) as a document 

"required by law to be kept by others for information of government."  This is the only 

application a party candidate for public office in the November general election will ever 

have to  file, his placement on the ballot in the latter election being effected by the 

county chairman's certifying him as the party's nominee if he receives the majority of 

votes for the office at the primary or runoff primary election.  Elec. Code §§ 172.002 -

 172.004, 172.117.  The contents required in such application are set out in section 

141.031 of the Election Code and are the same as for applications for places on any 

public election ballot.  Such an application becomes public information "immediately 

upon its filing" with the county chairman who must preserve it for two years.  Id. 

§§ 141.034, 141.035.   We think it clear the party's maintenance and preservation of 

these documents, pursuant to legislative directive, serves governmental purposes in 

connection with the election process--both for the provision of general information to the 

public and as records of candidates' attestations that they meet the eligibility 

requirements of the offices they seek.  See, e.g., id. § 141.034 (challenge of application).  

The applications are thus, in our opinion, documents "required by law to be kept by 

others for information of government" under the definition of "governmental record" in 

Penal Code section 37.01(B).  

 

	You also suggest that the holding in Constructors Unlimited, Inc. v. State, 717 

S.W.2d 169 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd), precludes treating such an 

application as a "governmental record," at least until the document is filed and in the 

possession of the filing authority. In Contractors Unlimited, Inc., a contractor on a 

building project for the University of Texas had filed a document which included an 

allegedly false statement that "all current invoices and obligations had been paid."  The 

document had been filed, pursuant to an agreement between the parties, as a prerequisite 

to the contractor's being paid.  The contractor was subsequently charged under section 

37.10(a)(1) of the Penal Code with "knowingly making a false entry in, or false alteration 

of, a government document."  The state argued that the document in question was a 

"governmental record" under the definition set out in section 37.01(1)(A)--as "belonging 

to, received by, or kept by government."  The court found the document in question had 

not been a governmental document under the section 37.01(1)(A) definition at the time 

of the alleged false entry--the document not at that time "belonging to," or having been 

"received by," or "kept by government" and that the defendant had therefore not 

committed the offense set out in section 37.10(a)(1), of "knowingly making a false entry 

in, or false alteration of a governmental record."  The court specifically noted, however, 

that the state had not argued that the document was a "governmental record" by virtue of 

section 37.01(1)(B)--as one "required by law to be kept by others for information of 

government"--and moreover that the state had not charged the defendant with an offense 

under section 37.10(a)(2)--for one who "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."  Compare Lewis v. State, 773 S.W.2d 689 (Tex. App.--Corpus 

Christi, writ ref'd) (arrest warrant became "governmental record" simultaneously with 

justice of the peace's completion of it, including allegedly false entry thereon).  

 

	As discussed above, we think that the definition of "governmental record" 

applicable in the situation you ask about is that in subsection (1)(B) of section 

37.01:  "anything required by law to be kept by others for information of government," 

rather than that in subsection (1)(A), which was found in Contractors Unlimited, Inc. to 

require that the document be already in the possession of the government in order to be a 

"governmental record."  As the Contractors Unlimited, Inc. opinion turns on the 

definition of "governmental record" in section 37.01(1)(A), it does not, we think, govern 

here. Subsection (1)(B), unlike subsection (1)(A) as construed in Contractors Unlimited, 

Inc., does not, we think, preclude a document's becoming a "governmental record" until 

it actually belongs to, has been received by, or is being kept by government.  In our 

opinion, the application for a place on the primary ballot at issue here may be deemed to 

have become a governmental record under the subsection (1)(B) definition, as a 

document "required by law to be kept by others for information of government," at the 

time it was executed. 

 

	We caution, finally, that whether any particular conduct constitutes an offense 

that should be prosecuted would depend on the facts of the case, and is subject, of course, 

to the reasonable discretion of the prosecutor having jurisdiction over the matter. We in 

the opinion process are unable to make the fact-findings requisite to such determinations. 

	 

 





S  U  M  M  A  R  Y 

 

	An application for a place on a party primary ballot for a public 

office, filed with the party's county chairman, may be deemed to 

have become a "governmental record" for purposes of the definition 

of that term in section 37.01(1)(B) of the Penal Code, as "anything 

required by law to be kept by others for information of 

government," at the time it was executed. 

 

						Yours very truly, 

 

 

 

						William Walker 

						Assistant Attorney General 

						Opinion Committee 





LO- 

LDB 

 

id#-16194 

 

 

 

INDEX HEADINGS 

 

Elections  

Criminal Law and Procedure 

Public records 

______________________________ 

 

______________________________  



 "Governmental record" is an operative term in the offense set out in section 37.10, "Tampering 

With Governmental Record."  Section 37.10 reads, in relevant part, as follows:   

(a)  A person commits an offense if he: 

 

	(1)  knowingly make 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; [or] 

 

	(3)  intentionally destroys, conceals, removes, or otherwise impairs the 

verity, legibility, or availability of a governmental record. 

 

 Prior to there being specific indication in the election laws that primary application components 

were public information, this office opined that such information held by political parties, such as the 

Democratic Party, which receive state funds under what is now chapter 173 of the Election Code, was 

public information under the Open Records Act.  Attorney General Opinion MW-175 (1980) (nominating 

petitions). 

  

(footnote continued) 

 

Honorable Andy J. McMullen  -  Page  5