PD-0286-24 06/05/2024
“The court of appeals erred in its interpretation of Tex. Pen. Code 39.06(d) when it basically eliminated the meaning of ‘prohibited from disclosure’ as written in the code and replaced it with a vague ‘information that is confidential’ standard.”
Avalos was a city police lieutenant whose ex-girlfriend was dating Hernandez. After using his TLETS credentials to run a driver’s license and warrants’ check on Hernandez, he asked a patrolman to run a license-plate check on two vehicles parked at Hernandez’s home. As Avalos requested, the patrolman sent screenshots of the results to Avalos’s personal cell phone. In addition to ownership information, the screenshots showed that the owner did not have any criminal history. At trial, Avalos was convicted of misuse of official information. That offense makes it a crime if a public servant, for a nongovernmental purpose and to obtain a benefit, discloses or uses “information that has not been made public” and that his employment gives him access to.
On appeal, Avalos argued that the evidence was insufficient to prove that what he received was “information that has not been made public.” The statute defines that phrase as “any information to which the public does not generally have access, and that is prohibited from disclosure under Chapter 552, Government Code (the Open Records Act).” The court of appeals held that the evidence was sufficient. The first component was satisfied since TLETS was the source of the license-plate information and that system is not for the public. The second component was satisfied since a statute in Ch. 552 excepts from disclosure under the Open Records Act information considered confidential “by law” and a law (Gov’t Code § 411.083) provides that criminal history information is statutorily “confidential” and “may not be disseminated.”
Avalos contends that both components of the “information … not … made public” definition must be proven. He argues that a person’s criminal history is not prohibited from disclosure and that services are available to the public to obtain the criminal history of anyone. He argues that the opinion writes Chapter 552 out of the definition and reduces the Legislature’s “prohibited from disclosure” language to anything required to be confidential.
