Courtesy Copies Are Not “Government Records” Under Texas Penal Code § 37.10(a)(1): Probable Cause, Franks Liability, and Retaliatory Arrest in Thompson v. McGehee

I. Introduction

In Thompson v. McGehee (5th Cir. July 17, 2026), the Fifth Circuit addressed a politically charged arrest of a city councilmember, Jennifer Thompson, who had become a vocal critic of Godley, Texas’s mayor and interim police chief. Minutes before a city council meeting at which Thompson intended to vote against the mayor’s preferences, she was arrested on a warrant alleging misdemeanor tampering with a governmental record under Texas Penal Code § 37.10(a)(1).

Thompson sued the City of Godley and several officials under 42 U.S.C. § 1983, asserting First Amendment retaliatory arrest, Fourth Amendment false-arrest/Franks violations based on alleged misstatements in a warrant affidavit, and related municipal (Monell) claims. The district court dismissed her Second Amended Complaint for failure to state a claim.

The Fifth Circuit largely reversed, holding (most importantly) that Thompson plausibly alleged no probable cause because the “record” she edited was merely a courtesy copy in her email inbox, not a “government record” for § 37.10(a)(1). This statutory construction drove the constitutional analysis: without probable cause, Thompson could proceed on Franks and retaliatory arrest theories.

II. Summary of the Opinion

The opinion proceeds in a structured sequence:

1. Fourth Amendment (Franks): The court held Thompson plausibly alleged that key statements in the warrant affidavit were false or misleading and “necessary” to the probable-cause finding. Central to that conclusion was the court’s interpretation of Texas Penal Code § 37.10(a)(1): Thompson’s edits to a courtesy email copy of an agenda did not constitute tampering with a “government record.”
2. First Amendment retaliatory arrest: Because Thompson plausibly alleged absence of probable cause, the court applied the Mt. Healthy City School District Board of Education v. Doyle framework (as contemplated by Nieves v. Bartlett and Lozman v. Riviera Beach) rather than requiring the plaintiff to fit within the narrow Nieves “objective evidence” exception.
3. Monell: The court held Thompson pleaded sufficient facts of an alleged municipal custom/practice of retaliatory policing against disfavored speech—supported not only by her own incident but also by alleged retaliation against others and notice to city leadership.
4. “Abuse of process”: There is no standalone constitutional “abuse of process” right (Morgan v. Chapman), but the court treated Thompson’s claim as a potential fabrication-of-evidence due process claim and remanded for the district court to address it.

III. Analysis

A. Precedents Cited

1. Fourth Amendment: Warrant affidavits and Franks liability

• Franks v. Delaware: The foundational rule—intentional/reckless false statements or omissions that are necessary to probable cause invalidate the warrant’s constitutional footing.
• Winfrey v. Rogers and Hughes v. Garcia: Fifth Circuit applications clarifying the pleading posture and that reckless/intentional misstatements defeat qualified immunity; also supporting that non-affiant officers can be liable if they materially contribute misinformation used to procure a warrant.
• Melton v. Phillips (en banc): Limits and scope—Franks liability is defendant-specific; it extends to those who sign/present affidavits and can extend to those who help prepare by supplying information.
• Wilson v. Stroman, McLin v. Ard, and Terwilliger v. Reyna: The court relied on these for pleading standards and the “reconstructed affidavit” analysis—setting aside tainted statements and asking whether probable cause remains.
• Maryland v. Pringle and District of Columbia v. Wesby: Probable cause as a totality-of-the-circumstances, practical judgment.

2. Texas statutory interpretation and § 37.10(a)(1)

• LaSalle Bank Nat'l Ass'n v. Sleutel, McNeil v. Time Ins. Co., Wagner v. State: Methodology—apply Texas interpretive rules; plain meaning controls unless it yields absurd results.
• Alfaro-Jimenez v. State and State v. Vasilas: The breadth/purpose of § 37.10 and the harms it targets (fraud on institutions, falsified records, miscarriage of justice).
• Constructors Unlimited Inc. v. State: Critical distinction—documents not yet “received by” the government at the time of falsification are not governmental records for § 37.10(a)(1).
• Fernandez v. State and Hernandez v. State: Government-employee-created records can be governmental records “starting at inception” if made at work for an official purpose; drafts can qualify. But the Fifth Circuit carefully treated these as not establishing a per se rule that all copies are governmental records.
• Mills v. State and Fox v. State: Illustrative examples of items “received by” or kept for governmental information.
• Out-of-state persuasive authority: State v. Brantner, United States v. Isler, and State v. Shows supported a narrower, custody/official-purpose conception rather than criminalizing personal copies.
• Papachristou v. City of Jacksonville: Used to caution against constructions that transform broadly innocent conduct into crime.
• Hernandez v. State (Tex. Crim. App. 2019) (Slaughter, J., dissenting): Though not controlling, the court treated the dissent’s concern as persuasive—rejecting a sweeping rule that everything saved/created on a government system is automatically a governmental record.

3. First Amendment retaliatory arrest

• Nieves v. Bartlett: Generally, probable cause defeats retaliatory arrest claims; includes a narrow qualification where objective evidence shows similarly situated persons not engaged in protected speech are typically not arrested.
• Lozman v. Riviera Beach and Mt. Healthy City School District Board of Education v. Doyle: If the plaintiff establishes absence of probable cause, the Mt. Healthy substantial-or-motivating-factor framework governs.
• Gonzalez v. Trevino (Alito, J., concurring): Cited to emphasize that under Mt. Healthy, parties may rely on both objective and subjective evidence.

4. Municipal liability (Monell) and pleading standards

• Monell v. Department of Social Services of City of New York, Pembaur v. City of Cincinnati: Municipal liability attaches only for action the municipality is “actually responsible” for—policy, custom, or an authorized policymaker’s act.
• Piotrowski v. City of Houston, Zarnow v. City of Wichita Falls, Tex., Burge v. Parrish of St. Tammany, and Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown: “Moving force,” deliberate action, and the barrier against respondeat superior.
• Groden v. City of Dallas: At the pleading stage, plaintiffs need only allege facts showing an official policy promulgated/ratified by a policymaker; the policymaker need not always be specifically identified in the complaint.
• Peña v. City of Rio Grande City and Connick v. Thompson: A single incident is typically insufficient to plead a widespread practice “having the force of law,” but Thompson alleged additional instances beyond her own.
• Webster v. City of Houston (en banc) and Bennett v. City of Slidell (en banc): Defining policymakers and the ways policymaking authority can be delegated.
• Spiller v. City of Texas City, Police Dep't, Meadowbriar Home for Children, Inc. v. Gunn, and Fraire v. Arlington: Requirement that the policy/custom and causal link be pleaded with specific facts, not conclusory assertions.
• Becerra v. Asher: Without an underlying constitutional violation, municipal liability fails (explaining why the court analyzed the individual violations first).

5. “Abuse of process” recharacterized as fabrication-of-evidence

• Morgan v. Chapman (as recognized by Espinal v. City of Houston): No freestanding constitutional “abuse of process” right.
• Castellano v. Fragozo: State tort concepts must be anchored to rights “locatable in constitutional text.”
• Dean v. Phatak and Cole v. Carson (with the procedural history noted in the opinion): Fifth Circuit recognition of a due process right not to have officials deliberately fabricate evidence and use it to bring false charges.
• Johnson v. City of Shelby, Miss.: Pleading rules do not require perfect labeling of the legal theory if the facts plausibly state a claim.

6. Appellate housekeeping

• Monteon-Camargo v. Barr: Forfeiture for inadequate briefing.
• Carswell v. Camp: Raised regarding discovery, but the issue was not reached as no live dispute remained.

B. Legal Reasoning

1. The key statutory move: a courtesy email copy is not a “government record” under § 37.10(a)(1)

The opinion’s doctrinal fulcrum is statutory: § 37.10(a)(1) criminalizes knowingly making a false entry in, or false alteration of, a governmental record. The court held Thompson’s edited document was not such a record because the file she altered was merely a copy sitting in her personal email inbox—lacking the “legal salience” of the official notice required by the Texas Open Meetings Act.

Rule articulated by the court: even if an agenda created and digitally signed by a city secretary could be a governmental record, a courtesy copy of that agenda in a recipient’s inbox is not “belonging to, received by, or kept by government for information” (Tex. Penal Code § 37.01(2)(A)) merely because it originated from government.

The court emphasized the limiting principle embedded in § 37.01’s definition: the statute does not “sanctify” every printed or emailed artifact produced by government. It also invoked the “absurd results” canon (via Texas interpretive authorities) and the cautionary logic of Papachristou to avoid criminalizing common, innocent administrative behavior (e.g., suggesting edits, proofreading, circulating revisions).

2. Franks at the motion-to-dismiss stage: reconstructed affidavit and probable cause

Having narrowed what counts as a governmental record, the court concluded the affidavit’s challenged language was central to creating the impression that Thompson altered an “official” record (e.g., references to “original,” “forgery,” “government document,” “official source document”). Under the reconstructed affidavit method described in Terwilliger v. Reyna, removing those statements left only innocuous conduct: disagreement and drafting over what agenda items should be included.

This sufficed to plead both prongs of the Franks framework (via Winfrey v. Rogers and Franks v. Delaware): (1) intentional/reckless falsehoods, and (2) materiality to probable cause.

On defendant-specific scope (Melton v. Phillips), Arbuthnot faced plausible Franks exposure as the affiant. Templer also plausibly fell within the rule at the pleading stage because the complaint alleged he drafted an investigative report for prosecution containing fabricated/omitted material facts and he was “deeply involved” in the case (the court analogized to the logic in Hughes v. Garcia). By contrast, Thompson conceded McGehee and Cantrell were not proper Franks defendants (no affidavit preparation/presentation role), leading to affirmance as to them on that theory.

3. Retaliatory arrest: absence of probable cause triggers Mt. Healthy, not the Nieves exception

The district court had applied Nieves v. Bartlett on the premise that probable cause existed. The Fifth Circuit’s finding that Thompson plausibly alleged no probable cause changed the governing framework: under Nieves and Lozman, the case proceeds under Mt. Healthy.

Thus, Thompson needed to plausibly allege retaliation was a substantial or motivating factor behind the arrest and that the arrest would not have occurred absent retaliatory motive. The court credited allegations of retaliatory animus: prior warnings to stop speaking publicly, direction to arrest her immediately before a pivotal meeting, and alleged coordination to ensure she would miss the vote.

4. Monell: pleading a custom of retaliatory policing with “specific facts”

Because Thompson plausibly alleged underlying First and Fourth Amendment violations (and mindful of Becerra v. Asher), the court revived her claims against the City. The opinion applied Groden v. City of Dallas to emphasize the pleading burden: identify facts supporting an official policy/custom and a causal link, without needing perfect identification of the precise policymaker at the outset.

Crucially, the court distinguished Peña v. City of Rio Grande City, where the plaintiff pleaded essentially only his own incident. Thompson alleged other instances—particularly Chief Jordan’s “blue folder” materials describing directives to target speech—and she alleged notice to leadership. Those allegations, taken as true, plausibly described a “persistent widespread practice” (per Zarnow, Webster, and Connick) sufficient to proceed beyond dismissal.

5. “Abuse of process” reframed as fabrication; remand to develop the record

The Fifth Circuit reiterated (via Morgan v. Chapman and Castellano v. Fragozo) that “abuse of process” is not itself a constitutional tort. But it treated Thompson’s allegations as potentially invoking the Fifth Circuit’s recognized due process right against deliberate evidence fabrication (citing Dean v. Phatak and Cole v. Carson). Applying Johnson v. City of Shelby, Miss., the court remanded for the district court to address whether the complaint adequately pleaded fabrication.

C. Impact

1. Narrowing § 37.10(a)(1) in a practical, litigation-relevant way

Although styled as a probable-cause/constitutional pleading decision, the opinion meaningfully constrains a common prosecutorial move: treating any government-origin document or copy as a “government record.” The Fifth Circuit’s approach signals that for § 37.10(a)(1), the State must tie the allegedly altered document to the statutory definition—“belonging to, received by, or kept by government for information”—rather than relying on origin alone.

2. Political-retaliation arrests: probable cause is still the hinge

The opinion underscores a recurring structural point: in retaliatory arrest litigation, the presence or absence of probable cause often determines not only the outcome but the governing standard (Nieves exception versus Mt. Healthy). When plaintiffs can plausibly plead no probable cause, they avoid the demanding “objective evidence” comparator showing and proceed under a motive-centered framework.

3. Expanded practical exposure for non-affiant officers at the pleading stage

By allowing a plausible Franks claim to proceed against an officer alleged to have generated investigative materials used in charging, the opinion reinforces the Fifth Circuit trend (e.g., Hughes v. Garcia) that liability risk is not limited to the affiant if other officers feed fabricated or misleading information into the warrant pipeline.

4. Monell pleading: “other incidents” and “notice” matter

For municipal defendants, Thompson illustrates what can separate a conclusory custom allegation from a plausible one: allegations of additional victims/episodes, internal reports, and leadership awareness—facts that link the asserted practice to policymaker knowledge and causation.

IV. Complex Concepts Simplified

• Probable cause: a practical, common-sense basis to believe a crime probably occurred; if the alleged facts don’t actually fit the elements of the crime, probable cause can fail.
• Franks violation: if police knowingly/recklessly lie (or omit key facts) in a warrant affidavit and those lies/omissions matter to the judge’s probable-cause decision, the resulting arrest can violate the Fourth Amendment.
• “Government record” (Texas § 37.10): not every document created by a government employee qualifies; the record must be one the government possesses/keeps/receives for official informational purposes (or one others must keep for government).
• Retaliatory arrest frameworks:
  • Nieves v. Bartlett: probable cause usually defeats the claim; plaintiff may still proceed only in narrow circumstances with objective comparator evidence.
  • Mt. Healthy: if no probable cause is plausibly alleged, the question becomes whether retaliation was a substantial motivating factor and whether the arrest would have happened anyway.
• Monell liability: cities aren’t liable just because they employ a wrongdoer; the plaintiff must connect the violation to an official policy/custom or an authorized policymaker’s decision.
• Fabrication of evidence: a due process theory alleging officials deliberately manufactured false evidence and used it to bring charges—distinct from state-law “abuse of process.”

V. Conclusion

Thompson v. McGehee is a consequential Fifth Circuit decision at the intersection of state criminal elements and federal constitutional torts. Its central contribution is a limiting construction of Texas Penal Code § 37.10(a)(1) in the probable-cause context: a courtesy copy of an agenda in a recipient’s inbox is not, without more, a “government record” capable of being “tampered with” under that subsection. That holding, in turn, allowed Thompson’s Franks and retaliatory arrest claims to proceed, shifted the First Amendment analysis to the Mt. Healthy framework, and revived related Monell theories premised on an alleged municipal practice of retaliatory policing. The remand on fabrication further signals that constitutional scrutiny will follow not only the arrest decision but also the evidentiary path used to justify it.