PD-0771-17 01/10/2018
1. “The Appellate Court Improperly Reviewed the Legal Sufficiency of the Evidence Against Chambers pursuant to § 37.10 of the Texas Penal Code when it Refused to Acknowledge that the Texas Commission on Law Enforcement was Acting in Contravention of its Legal Authority.”
2. “This Court Should Summarily Grant this Petition for Discretionary Review and Remand the Case to The Court of Appeals Because of That Court’s Failure to Comply with Texas Rule of Appellate Procedure 47.1.”
3. “The Trial Court Abused its Discretion by Failing to Submit an Instruction to the Jury on the Applicable Law Regarding the Distinction Between an Employee and a Volunteer Reservist.”
4. “The Difference Between the Class A Misdemeanor and the Felony Enhancement Pursuant to § 37.10 of the Texas Penal Code is a Distinction Without a Difference. In Addition, the Appellate Court’s Reliance Upon an Improper Application of Law is Legally Insufficient to Uphold a Finding of an ‘Intent to Defraud.’”
Chambers was convicted of tampering with governmental records while he was the Indian Lake police chief. The department had only one other paid, full-time officer. The other 20-30 officers were volunteer reservists. When TCOLE audited the department’s firearms qualifications records, they made a preliminary finding that records for 8 of the reserve officers were missing. With 10 days to correct the deficiency, Chambers directed the other officer to document the passage of the firearm qualification course for 14 reserve officers. Those officers had not, however, passed on the date, or with the weapon, provided in the forms. At trial, Chambers requested a jury instruction describing the distinction between an employee and reservist. According to Chambers, Tex. Loc. Gov’t Code § 341.012 gives the police chief, not TCOLE, the authority to set firearm qualifications for reserve officers. The trial court denied his request.
On appeal, Chambers claimed that the evidence was insufficient to support his conviction because the records do not fall under the definition of “governmental record”—“anything belonging to, received by, or kept by government for information” or “anything required by law to be kept by others for information of government.” First, TCOLE regulations mandated the records only for employed officers, not reserve officers. Second, Section 341.012 gave him sole authority to set firearm qualifications for his reserve officers. The court of appeals sidestepped the arguments and held that any record kept by the government, which includes the Indian Lake PD, is a “governmental record kept for information.” The court of appeals also affirmed the denial of the Section 341.012 instruction, holding that the issue of whether “governmental records” were involved was subsumed by the elements of the offense.
Chambers maintains that the court of appeals refused to acknowledge that TCOLE acted in contravention of its delegated authority. Under Tex. Occ. Code §§ 1701.001(6) and 1701.355, a police chief can regulate his own reserve police force pursuant to Section 341.012, and reservists can carry a firearm even if they are not licensed peace officers. Therefore, the documents in question do not fit within the meaning of “for information of government.” Additionally, he references the statutory defense that “the false entry or false information could have no effect on the government’s purpose for having the governmental record.” Tex. Penal Code § 37.10(f). Chambers points out that the court of appeals failed to address this argument; thus, a remand would be appropriate. Finally, based on the foregoing, Chambers argues that he was entitled to an instruction under Section 341.012 because it would have enabled the jury to determine whether the records here were either “governmental record[s] kept for information” or “required to be kept by law.”
