Thompson v. McGehee

Case: 25-10196 Document: 100-1 Page: 1 Date Filed: 07/17/2026 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-10196 ____________ FILED July 17, 2026 Jennifer Thompson, Lyle W. Cayce Clerk Plaintiff—Appellant, versus Acy McGehee, individually and in his official capacity as Mayor of the City of Godley; City of Godley, Texas; Matthew Cantrell, individually and in his official capacity as Interim Police Chief of the Godley Police Department; Jeremy Arbuthnot, Badge #980; Spencer Templer, Badge #985, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:23-CV-1441 ______________________________ Before Elrod, Chief Judge, Richman, and Willett, Circuit Judges. Priscilla Richman, Circuit Judge: Jennifer Thompson was a Godley City Councilwoman and critic of Godley’s Mayor and interim Police Chief. In February 2023, minutes before a city council meeting, a Godley police officer arrested her for a putative violation of Texas Penal Code § 37.10(a)(1), which makes it a misdemeanor to tamper with a government record. She sued the City of Godley (the City) Case: 25-10196 Document: 100-1 Page: 2 Date Filed: 07/17/2026 No. 25-10196 and several Godley officials under 42 U.S.C. § 1983, asserting violations of her First, Fourth, and Fourteenth Amendment rights. The district court dismissed her Second Amended Complaint for failure to state a claim. We REVERSE the dismissal of her First, Fourth, and Fourteenth Amendment claims against Jeremy Arbuthnot and Spencer Templer, her First Amendment retaliatory arrest claim against Individual Defendants, her Monell claims against the City, and her fabrication claim against all defendants. Those claims are REMANDED for further proceedings. We AFFIRM the dismissal of her Fourth and Fourteenth Amendment claims against former Mayor Acy McGehee and former interim Police Chief Matthew Cantrell. I In late 2022 and early 2023, municipal politics in Godley were acrimonious. Godley operates under an aldermanic form of government. The City Council consists of a mayor and five city council members. The mayor does not vote unless his vote is needed to break a tie. In October 2022, Police Chief Jason Jordan resigned after Officer Solomon Omotoya accused him of racial discrimination. Before he resigned, Chief Jordan passed around a folder at the city council meeting with information supporting his belief that city officials—including his own officers—were violating state and federal law by targeting residents and city council members for the content of their speech. After the City Council accepted Jordan’s resignation, three city council members reviewed Jordan’s materials and had second thoughts. They sought to reinstate Jordan, which would have displaced Mayor Acy McGehee’s replacement candidate. These three city council members—Plaintiff-Appellant Jennifer Thompson, Michael Papenfuss, and Roger Cornelison—soon emerged as the “opposition party” to Mayor McGehee and the City’s employees. Friction 2 Case: 25-10196 Document: 100-1 Page: 3 Date Filed: 07/17/2026 No. 25-10196 ensued. Papenfuss sought to discover whether Officer Omotoya had made untruthful statements and falsified legal documents while employed with a previous law enforcement agency; shortly thereafter, two police officers (including Omotoya) and another city employee filed sexual harassment complaints against Papenfuss. Thompson sought information about an allegation that a retired fire truck had been transferred to a friend of the City Administrator for free rather than being sold at auction. Thompson also questioned—inter alia—the City’s uncontracted employment of the City Administrator’s relative to service the City’s police cars. Thompson alleges that she was then summoned to the police station and that Interim Chief Cantrell, Officer Arbuthnot, and Officer Omotoya “told [her] . . . to stop publicly voicing her concerns. They said that if she did not, there would be consequences, which implied the Department would retaliate.” Later, Mayor McGehee accused Thompson of being an outsider whose actions caused the loss of many city employees and risked changing the character of the City. These frictions occurred prior to Thompson’s arrest in connection with a city council meeting. The Texas Open Meetings Act requires municipalities to give notice of the time, place, and subject of upcoming council meetings. 1 The notice must be posted publicly at City Hall for at least three business days before the meeting. 2 The City Secretary circulated a draft agenda for the upcoming city council meeting via email on Thursday, December 22, 2022. Thompson emailed the Secretary, asking her to add items that Thompson alleged should have been carried over from the prior meeting. The Secretary responded that _____________________ 1 Tex. Gov’t Code § 551.041. 2 See id. §§ 551.043, 551.050(b). 3 Case: 25-10196 Document: 100-1 Page: 4 Date Filed: 07/17/2026 No. 25-10196 she did not know which items should have been carried over. Shortly thereafter, around 5:20 p.m., the Secretary circulated a final agenda that omitted the items that Thompson thought should have been added and contained the Secretary’s digital signature “certifying that the agenda was posted on Thursday . . . at 6:00 p.m.,” even though the email was sent 40 minutes before 6:00 p.m. Apparently recognizing that time was of the essence to meet the Texas Open Meetings Act’s three-business-day requirement, Thompson added the omitted discussion items to the agenda and returned it via email to the Secretary, instructing her to post the updated agenda rather than the originally-circulated version. When Thompson made these additions, she did not remove the Secretary’s digital signature at the bottom of the document. Thompson blind copied fellow councilmember and Mayor Pro Tempore Michael Papenfuss on her return email to the Secretary, which read “Please see attached and post the updated agenda.” This—according to the City and the individual defendants—was a crime—or, at least, they asserted in a motion to dismiss that it would give a reasonable officer probable cause to believe that a crime had been committed. Thompson’s alleged crime was misdemeanor tampering with a government record, a violation of Texas Penal Code § 37.10(a)(1): “A person commits an offense if he . . . knowingly makes a false entry in, or false alteration of, a governmental record[.]” 3 The theory of the crime was that Thompson had violated the statute by adding her proposed agenda items with the City Secretary’s certification intact. By making her proposed alterations on a version of the document digitally signed by the City Secretary, they alleged that she had falsely altered a governmental record. Papenfuss would later _____________________ 3 Tex. Penal Code § 37.10(a)(1). 4 Case: 25-10196 Document: 100-1 Page: 5 Date Filed: 07/17/2026 No. 25-10196 post Thompson’s version of the agenda on his Facebook page, then take it down when he learned that the City Secretary had declined to certify Thompson’s proposed additions. The investigation began the following week. The Godley Police first investigated Papenfuss and Thompson for felony forgery. Officer Arbuthnot took the case to the Johnson County District Attorney but was rebuffed. Thompson alleges that “Assistant District Attorney Ryan Eady immediately recognized the frivolity of the case and informed Arbuthnot that the facts and circumstances did not give rise to forgery in part because they negated intent to deceive . . . . [H]e suggested that the pending [retaliation] complaints [by Thompson against the officers] created conflicts of interest that would taint any investigation and prosecution.” Officer Arbuthnot informed Interim Chief Cantrell, Mayor McGehee, City Attorney Callaway, and Officer Templer that the district attorney had rejected the felony case. Mayor McGehee and City Attorney Callaway “directed the Department to find a way to ‘get it done.’” The officers then sought to charge Thompson with a misdemeanor, which would be prosecuted by the Johnson County Assistant County Attorney, rather than the District Attorney. The officers submitted the probable cause affidavit to the County Attorney on December 29. Nothing further transpired regarding the potential charges until February 7, the day of a council meeting at which Thompson planned to vote for the removal of Interim Chief Cantrell and the installation of a City Attorney of her choosing. Around 11 a.m. on February 7, the County Attorney emailed Arbuthnot that “your warrant looks good to go.” Arbuthnot presented the affidavit to a magistrate, who signed it. One of the officers erroneously entered the warrant into the system as a felony warrant, a tactic that Thompson alleges was intended to require her strip search upon booking. 5 Case: 25-10196 Document: 100-1 Page: 6 Date Filed: 07/17/2026 No. 25-10196 Either Cantrell or Arbuthnot directed Officer Templer to arrest Thompson at her residence. Officer Templer instead arrested Thompson in the parking lot of City Hall, five and a half weeks after the putative crime and a few minutes before the city council meeting. Thompson’s absence left the City Council deadlocked 2-2; Mayor McGehee used his tiebreaking authority to secure his preferred appointees for City Attorney and City Secretary. Three days later, the County Attorney declined to prosecute. Thompson alleged that Mayor McGehee, Interim Police Chief Cantrell, and Officers Arbuthnot and Templer “with knowledge that [Thompson], Papenfuss and Cornelison would likely pass those [agenda] items [inter alia, securing Mayor McGehee’s preferred appointees] at the February 7, 2023 meeting, agreed that the arrest should be executed in such a way that [Thompson] would be sitting in jail during the city council meeting.” Thompson sued, asserting seven § 1983 claims. Thompson alleges a First Amendment violation by the City, a retaliatory arrest First Amendment violation by the City, and a retaliatory arrest First Amendment violation by Mayor McGehee, Interim Police Chief Cantrell, and Officers Arbuthnot and Templer (Individual Defendants). She alleges a Franks false arrest claim under the Fourth Amendment against both the City and Individual Defendants. She alleges a Fourth and Fourteenth Amendment malicious prosecution claim against both the City and Individual Defendants. She alleged—but has now abandoned—a § 1983 conspiracy claim against both the City and Individual Defendants. Finally, she alleges a standalone § 1983 “abuse of process” claim against both the City and Individual Defendants. The district court granted the City and Individual Defendants’ motions to dismiss all claims in Thompson’s Second Amended Complaint. 6 Case: 25-10196 Document: 100-1 Page: 7 Date Filed: 07/17/2026 No. 25-10196 II Because the viability of Thompson’s Monell claims against the City depends on the existence of an underlying constitutional violation, 4 we begin with her claims against the Individual Defendants. A § 1983 claim has two elements: “a violation of the Constitution or of federal law, and . . . that the violation was committed by someone acting under color of state law.” 5 It is uncontested that the Individual Defendants acted under color of state law. We focus on whether there was a constitutional violation. We first evaluate whether Thompson has adequately pled a Fourth Amendment violation, and we then consider whether she has adequately pled a First Amendment violation. A Thompson asserts a Fourth Amendment Franks false arrest claim. “[A]n officer who recklessly or intentionally contribute[s] misleading statements or omissions to a warrant affidavit violates the arrestee’s constitutional rights.” 6 To prevail, Thompson must prove that “(1) the affiant, in support of the warrant, include[d] ‘a false statement [made] knowingly and intentionally, or with reckless disregard for the truth’ and _____________________ 4 Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997) (“Without an underlying constitutional violation, an essential element of municipal liability is missing.”). 5 Rich v. Palko, 920 F.3d 288, 293-94 (5th Cir. 2019) (citation omitted) (quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)). 6 Hughes v. Garcia, 100 F.4th 611, 620 (5th Cir. 2024). 7 Case: 25-10196 Document: 100-1 Page: 8 Date Filed: 07/17/2026 No. 25-10196 (2) ‘the allegedly false statement is necessary to the finding of probable cause.’” 7 Franks liability is assessed on a defendant-by-defendant basis. A law enforcement officer is only subject to liability if they “assisted in the preparation of, or otherwise presented or signed a warrant application.” 8 An officer who does not present or sign the affidavit may be liable if “he helped prepare the complaint by providing information for use in it.” 9 An officer who makes knowing and intentional or reckless omissions that result in a warrant being issued without probable cause is also subject to Franks liability. 10 Reckless or intentional misstatements or omissions will defeat qualified immunity. 11 1 Assessing whether an allegedly false statement is “necessary to the finding of probable cause” turns on what would establish probable cause for a violation of the statute at issue. To assess Thompson’s Franks claim, then, we must first interpret the Texas statute under which the warrant issued. “We apply the statutory analysis that a Texas court would apply.” 12 “In Texas, the cardinal rule of statutory construction is to ascertain the _____________________ 7 Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018) (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). 8 Melton v. Phillips, 875 F.3d 256, 263 (5th Cir. 2017) (en banc). 9 Id. at 264. 10 Id. 11 See Winfrey, 901 F.3d at 494; see also Hughes, 100 F.4th at 620 (“[A]n officer who recklessly or intentionally contributed misleading statements or omissions to a warrant affidavit violates the arrestee’s constitutional rights. That violation has been clearly established since Franks.”). 12 LaSalle Bank Nat’l Ass’n v. Sleutel, 289 F.3d 837, 839 (5th Cir. 2002). 8 Case: 25-10196 Document: 100-1 Page: 9 Date Filed: 07/17/2026 No. 25-10196 ‘legislature’s intent,’ and to give effect to that intent. The duty of the court is to construe a statute as written and ascertain the legislature’s intent from the language of the act.” 13 When a statute’s language is unambiguous, we interpret it in accordance with its plain meaning, unless its plain meaning “leads to absurd results that the Legislature could not possibly have intended.” 14 “Texas Penal Code § 37.10, the ‘Tampering with Governmental Record’ statute, is complicated, covering a multitude of potential harms. The offense can be committed six different ways—and may involve a real ‘governmental record’ (itself defined six different ways) or a fake one.” 15 “By enacting § 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records.” 16 Officer Arbuthnot’s affidavit alleged that Thompson had violated Texas Penal Code § 37.10(a)(1). “The elements for tampering with a government record under [§] 37.10(a)(1) are that (1) a person (2) knowingly made a false entry in or a false alteration of (3) a governmental record. According to its plain language, [§] 37.10(a)(1) requires the document to be _____________________ 13 McNeil v. Time Ins. Co., 205 F.3d 179, 183 (5th Cir. 2000) (internal citation omitted) (quoting Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994), then citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)). 14 Wagner v. State, 539 S.W.3d 298, 306 (Tex. Crim. App. 2018). 15 Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019) (footnotes omitted). 16 State v. Vasilas, 187 S.W.3d 486, 492 (Tex. Crim. App. 2006). 9 Case: 25-10196 Document: 100-1 Page: 10 Date Filed: 07/17/2026 No. 25-10196 an authentic ‘governmental record.’” 17 To sustain a conviction under § 37.10(a)(1), the document at issue must be a government record at the time the false entry is made—unlike, for instance, § 37.10(a)(2), which criminalizes the creation of a fake document with intent that it be taken as a genuine government record. 18 The statute defines “government record” in relevant part as “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.” 19 Different lines of Texas precedent govern the disjunctive “belonging to” or “received by” elements of the definition. In Constructors Unlimited Inc. v. State 20—addressing a document “received by” the government for information—a contractor made false entries on “contractor’s estimates” that were later submitted to the government. 21 Because the estimates “did not belong to the government; had not been received by the government; and were not kept by the government for information” 22 at the time the false entries were made, they were not government records and thus could not support liability under § 37.10(a)(1). 23 Nor does it violate § 37.10(a)(1) to make a fake Social Security card. A genuine Social Security card, having been issued by the _____________________ 17 Neuwirth v. State, No. 09-18-00248-CR, 2019 WL 3937997, at *4 (Tex. App.— Beaumont Aug. 21, 2019, no pet.) (mem. op., not designated for publication). 18 See Tex. Penal Code § 37.10(a)(2). 19 Id. § 37.01(2)(A)-(B). 20 717 S.W.2d 169 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d). 21 Id. at 170-72. 22 Id. at 172. 23 See id. at 174. 10 Case: 25-10196 Document: 100-1 Page: 11 Date Filed: 07/17/2026 No. 25-10196 government, is a government record; a fake Social Security card created on a defendant’s computer is not. 24 A different line of cases governs “government records” created by government employees in the course of their duties. These are records “belonging to” the government. In Fernandez v. State, 25 Sheriff’s Deputy Fernandez made a false entry in a jail incident report that he created in the course of his duties. 26 Convicted of violating § 37.10(a)(1), he argued—in line with Constructors—that his false entry was made prior to the incident report becoming a “government record.” 27 A Texas intermediate appellate court disagreed, reasoning that the cases that “fall under the ‘received by’ portion of [§] 37.01 . . . are inapposite here, because Fernandez was a county- employed deputy.” 28 “Fernandez was acting in his official capacity as a detention officer when he completed the report about his altercation with Ramos, and the purpose of the report was to keep accurate and credible records at the detention center. Therefore, the report was an official government record.” 29 In Hernandez v. State, 30 a police officer drafted and saved onto his work computer an incident report that incorporated false statements. 31 It was _____________________ 24 Alfaro-Jimenez v. State, 577 S.W.3d 240, 247 (Tex. Crim. App. 2019). 25 619 S.W.3d 779 (Tex. App.—San Antonio 2020, pet. ref’d). 26 Id. at 781. 27 See id. at 782. 28 Id. 29 Id. 30 577 S.W.3d 361 (Tex. App.—Houston [14th Dist.] 2019, pet ref’d). 31 Id. at 364-65. 11 Case: 25-10196 Document: 100-1 Page: 12 Date Filed: 07/17/2026 No. 25-10196 marked “DRAFT” at the top of each page. 32 While the officer did not submit the document for review, the act of saving the draft onto his work computer’s network made it available to others at the department. 33 He was convicted under § 37.10(a)(1), and a Texas intermediate appellate court affirmed: “[T]he Offense Report bore the indicia that appellant had written the report on the precinct’s computer system, property which the jury reasonably could have inferred belonged to and was kept by appellant’s government employer for information.” 34 From Fernandez, we learn that “[a] governmental record can include an officer’s report or a judge’s warrant, starting at its inception if it is made at work for an official purpose.” 35 From Hernandez, we learn that a draft document can be a government record. 36 However, neither Fernandez nor Hernandez clearly addresses the issue in this case: whether copies of government records are themselves always government records. Some copies could be government records within the meaning of § 37.10(a)(1). If a copy “belong[s] to, [is] received by, or kept by government for information” 37 or is “required by law to be kept by others for information of government,” 38 then that copy is a government record. If a statute required that a permit be filed in triplicate, the original with the game warden, one copy with the city police, and one copy with the sheriff, a defendant could not appeal to the _____________________ 32 See Hernandez v. State, 614 S.W.3d 760, 760 (Tex. Crim. App. 2019) (Slaughter, J., dissenting). 33 Hernandez, 577 S.W.3d at 364. 34 Id. at 368. 35 Fernandez, 619 S.W.3d at 781 (emphasis added) (citations omitted). 36 Hernandez, 577 S.W.3d at 367-68. 37 Tex. Penal Code § 37.01(2)(A). 38 Id. § 37.01(2)(B). 12 Case: 25-10196 Document: 100-1 Page: 13 Date Filed: 07/17/2026 No. 25-10196 happenstance that his false entry on the version filed with the sheriff was made on a copy of the original filed with the game warden to avoid conviction under § 37.10(a)(1). However, not every copy of a government record is itself a government record within the meaning of § 37.10(a)(1). To be a government record, a document must (in relevant part) “belong to, [be] received by, or kept by government for information.” 39 Examples of such documents belonging to, received by, or kept by government for information are legion: vouchers and receipts accounting for jail commissary funds, 40 the pre-suit notice required by the Texas Tort Claims Act, 41 or a correctional officer’s incident report.42 But not every document that emerges from a government employee’s printer is so sanctified. The weight of out-of-state authority agrees. 43 _____________________ 39 Id. § 37.01(2)(A) (emphasis added). 40 Mills v. State, 941 S.W.2d 204, 208 (Tex. App.—Corpus Christi-Edinburg 1996, writ ref’d). 41 Fox v. State, 418 S.W.3d 365, 371 (Tex. App.—Texarkana 2013, no pet.) (“[T]his record was indeed received by the government for information. The City was statutorily entitled to the information in the notice so that it could investigate the claim, settle the matter, or prepare for trial, among other things.”). 42 Fernandez v. State, 619 S.W.3d 779, 781-82 (Tex. App.—San Antonio 2020, pet. ref’d). 43 See State v. Brantner, 758 A.2d 84, 95 (Md. 2000) (“Given the legislative history of the statute, as well as the reasoning behind similar statutes, it is thus clear that the purpose of the § 45A(a)(1) is protection of those public records in official custody, and not the protection of personal, officially generated copies of public records.”); accord United States v. Isler, 36 M.J. 1061, 1064 (A.F.C.M.R. 1993) (“To hold every personal copy of one’s [Permanent Change of Station] orders is a public record would, in effect, make every airman an official custodian of those copies, for we believe that is the only means for imposing individual criminality for not protecting one’s personal copies as a public record.”); cf. State v. Shows, 508 So. 2d 991, 994-95 (La. Ct. App.) (“While this statute definitely imposes a duty of maintaining books and records, neither it nor any other statute in the chapter prescribes the formal filing or depositing of checks or their duplicates. This requirement is crucial. Other cases in which convictions have been affirmed involved the 13 Case: 25-10196 Document: 100-1 Page: 14 Date Filed: 07/17/2026 No. 25-10196 The Texas courts, however, have not conclusively resolved this issue. The Texas Court of Criminal Appeals declined to review Hernandez. 44 Justice Slaughter dissented, expressing concern that “the court of appeals’ decision appears to create a per se rule that all electronic documents created by government employees and stored on government computers constitute ‘governmental records’ . . . regardless of whether such documents are shown to be ‘belonging to, received by, or kept by [the] government for information.’” 45 That reasoning is persuasive, and we quote it at length: Appellant’s conduct in entering information into a government database and hitting ‘save’ is the kind of action engaged in thousands, or perhaps tens of thousands, of times per day by government employees across the state. I disagree with the court of appeals’ suggestion that all such actions necessarily result in the creation of a governmental record that may be tampered with, regardless of the type of document or information at issue. . . . Surely not every email, memo, report, etc., generated by a government employee constitutes a governmental record that is kept by the government for information. To hold otherwise would broadly permit criminal sanctions against government employees, even for de minimis falsifications on documents that are lacking in any official purpose. I can also see this being abused for selective or political prosecutions. . . . I would grant review in this case to clarify that not every document generated by a government employee on his government computer automatically constitutes a governmental record for purposes of the tampering statute. Rather, the State is bound to put forth _____________________ mutilation or falsifying of records whose filing or depositing had been clearly and specifically authorized by law.”), writ denied, 512 So. 2d 464 (La. 1987). 44 614 S.W.3d 760 (Tex. Crim. App. 2019). 45 Id. at 760-61 (Slaughter, J., dissenting) (quoting Tex. Penal Code § 37.01(2)(A)). 14 Case: 25-10196 Document: 100-1 Page: 15 Date Filed: 07/17/2026 No. 25-10196 sufficient evidence to show that the document at issue is “belonging to, received by, or kept by” the government for some official informational purpose before it may constitute the type of document that would subject an actor to criminal liability for tampering. Because the Court declines to address these issues and refuses review, I respectfully dissent. 46 Here, the City Secretary, a government employee, created and circulated a meeting agenda via email to the Mayor, City Administrator, City Attorney, and City Council Members around 5:20 p.m. on December 22. The circulated agenda contained a certification and the City Secretary’s signature, indicating that the agenda was posted—or, at least, it was to be posted—at 6:00 p.m., some forty minutes later. We assume, without deciding, that she created and circulated this agenda pursuant to her official duties. Thompson received this email, added her proposed items to the attached agenda, then returned it to the City Secretary (blind-copying Papenfuss) with the instruction “Please see attached and post the updated agenda.” The document to which Thompson added items was not a “government record” within the meaning of § 37.10(a)(1), because it was not “belonging to, received by, or kept by government for information.” 47 The courtesy copy of the agenda in Thompson’s email inbox had no legal salience. It was of informational salience only to Thompson. The legal purpose of the official version of the agenda was to satisfy the requirements of the Texas Open Meetings Act: “A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental _____________________ 46 Id. at 765-66 (Slaughter, J., dissenting). 47 Tex. Penal Code § 37.01(2)(A) (emphasis added). 15 Case: 25-10196 Document: 100-1 Page: 16 Date Filed: 07/17/2026 No. 25-10196 body.” 48 “The notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least three business days before the scheduled date of the meeting . . . .” 49 For a municipal government, that means posting it at city hall. “A municipal governmental body shall post notice of each meeting on a physical or electronic bulletin board at a place convenient to the public in the city hall.” 50 With narrow, enumerated exceptions, only the subject matter displayed on the required notice may be discussed at the meeting. 51 To hold otherwise would make a misdemeanant out of many municipal employees. If any copy of a document created by a government official for an official purpose is a “government record,” then proofreading and marking suggested edits for one’s colleague could be a crime. We decline to construe the law to “make[] criminal activities which by modern standards are normally innocent.” 52 We need not decide whether the electronic document signed by the secretary was a government record or whether only the physically-posted notice was a government record within the meaning of § 37.10(a)(1), though we note that only the posted notice satisfied the requirement of the Texas Open Meetings Act. However—assuming arguendo that the electronic document signed by the Secretary was a “government record”—the courtesy copy in Thompson’s inbox was not. Thompson’s edits to that document were to convey her directive to the _____________________ 48 Tex. Gov’t Code § 551.041. 49 Id. § 551.043(a). 50 Id. § 551.050(b). 51 See id. § 551.0415. 52 Papachristou v. City of Jacksonville, 405 U.S. 156, 163 (1972). 16 Case: 25-10196 Document: 100-1 Page: 17 Date Filed: 07/17/2026 No. 25-10196 Secretary to revise the agenda to reflect what Thompson thought should be added. Those edits were not made on a “government record.” 2 Having determined that the copy of the agenda that Thompson edited was not a government record, we turn to the elements of Thompson’s Franks claim: “(1) the affiant, in support of the warrant, include[d] ‘a false statement knowingly and intentionally, or with reckless disregard for the truth’ and (2) ‘the allegedly false statement is necessary to the finding of probable cause.’” 53 “At the pleading stage, ‘“mere allegations of ‘taint’” . . . may be adequate to survive a motion to dismiss where the complaint alleges other facts supporting the inference.’” 54 “At the motion to dismiss stage, plaintiffs need only ‘point out specifically the portion of the warrant affidavit that is claimed to be false . . . accompanied by a statement of supporting reasons.’” 55 A court assessing a Franks claim performs a reconstructed affidavit analysis: “[T]he essential inquiry is whether ‘there remains sufficient content in the warrant affidavit to support a finding of probable _____________________ 53 Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018) (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). 54 Wilson v. Stroman, 33 F.4th 202, 212 (5th Cir. 2022) (alteration in original) (quoting McLin v. Ard, 866 F.3d 682, 690 (5th Cir. 2017)); see McLin, 866 F.3d at 690 (“[A]lthough our precedent demonstrates that mere allegations of taint are insufficient at summary judgment, such allegations may be adequate to survive a motion to dismiss where the complaint alleges other facts supporting the inference.” (internal quotation marks omitted) (citation omitted)); see also Terwilliger v. Reyna, 4 F.4th 270, 283 (5th Cir. 2021) (noting distinction between burden of alleging a Franks violation to “withstand the test of Iqbal/Twombly” and ultimately proving Franks violation). 55 Hughes v. Garcia, 100 F.4th 611, 620 (5th Cir. 2024) (alteration in original) (quoting Terwilliger, 4 F.4th at 283). 17 Case: 25-10196 Document: 100-1 Page: 18 Date Filed: 07/17/2026 No. 25-10196 cause’ after the ‘material that is the subject of the alleged falsity or reckless disregard is set to one side.’” 56 On appeal, Thompson identifies four portions of the warrant affidavit that she avers are false. Of those, we conclude only three are germane. First, paragraph 6 of the warrant affidavit states that the City Secretary asked Thompson whether she had edited the “original City Council Meeting Agenda” document: City Secretary “Hill related that she asked Mrs. Thompson if she had edited her original City Council Meeting Agenda document. Mrs. Hill related that Mrs. Thompson advised Mrs. Hill yes, she had.” Second, paragraphs 4 and 5 contain allegations of forgery. “In the document Mrs. Thompson provided [sic] had forged Mrs. Hills [sic] name on the document and added items to the agenda that she did not make.” “At 1745 hours Mrs. Thompson sent Mrs. Hill an email with the forged and changed agenda that she created.” Third, paragraph 10 of the affidavit states that “[d]ue to Mrs. Thompson doing the editing city council agenda [sic] the government document could have misinformed citizens/city council members of Godley.” It then enumerated several purposes of making and distributing city council agendas, including to “[m]emorialize compliance with the Texas Open Meeting act-legal compliance-and to allow for compliant or legal action if a violation of the Texas Open Meetings Act has occurred. The agenda is the official source document put forth for public scrutiny of compliance.” We set these alleged misstatements to the side and ask whether what remains in the affidavit supports probable cause. Viewing the existence of _____________________ 56 Terwilliger, 4 F.4th at 281-82 (quoting Franks, 438 U.S. at 171-72). 18 Case: 25-10196 Document: 100-1 Page: 19 Date Filed: 07/17/2026 No. 25-10196 probable cause in the light most favorable to Thompson—as we must, at this stage 57—we conclude that it does not. Probable cause is a “practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” 58 “[C]ourts must look to the ‘totality of the circumstances’ and decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer’ demonstrate ‘a probability or substantial chance of criminal activity.’” 59 Each of the alleged misstatements supported the magistrate’s apparent inference that the document at issue was a “government record.” Thompson argues that Arbuthnot falsely inserted the word “original” in paragraph 6 of the affidavit, which asserted that Thompson told City Secretary Hill that Thompson edited the “original City Council Meeting Agenda document.” She argues that the affidavit’s assertions of forgery in paragraphs 4 and 5 were knowingly false, as were the assertions in paragraph 10 that the document was a “government document . . . the official source document . . . an official record.” Stripped of the objected-to misstatements, the affidavit fails to support a probable cause determination. That is because a violation of § 37.10(a)(1) requires a knowing false entry in a “government record” and where—as here—the document was not a government record, the elements of § 37.10(a)(1) are not satisfied. Remove Thompson’s apparent confession to editing the “original” meeting agenda, the references to “forgery,” and the various assertions that what was at issue was a “government document” _____________________