OPINION
This is an appeal from a revocation of probation proceeding. The court assessed punishment at five years imprisonment. We reverse and remand.
In Ground of Error No. Two, Appellant contends thаt the State’s motion to revoke adult probation was insufficient for failure to state an offense.
The State’s motion to revoke adult probation read in pertinent part:
[0]n or about the 18th day of February, 1981, in thе County of El Paso and State of Texas, the said defendant, DAVID WAYNE LABELLE, did then and therе (unlawfully), intentionally remove a governmental record from the El Pasо County Court Residential Treatment Center in violation of the above mentioned condition of probation.
Furthermore, on or about the 18th day of February in the County of El Paso and State of Texas, the said defendant, DAVID WAYNE LABELLE, did then and there unlawfully, intentionally destroy a governmental record belonging to the El Paso County Adult Probation Department in violation of the аbovemen-tioned condition of probation.
*756 The offense relied upon by the State in its motion to revoke adult probation is found in Tex.Pеnal Code Ann. sec. 37.-10(a)(3) (Vernon 1974) and reads, in part-
ía) A person commits an offense if he:
(3) intentionally destroys, сonceals, removes, or otherwise impairs the verity, legibility, or avаilability of a governmental record.
Section (b) provides that:
It is an exception to the application of Subsection (a)(3) of this section that the governmental record is destroyed pursuant to legal authorization.
Tex.Penal Code Ann. sec. 2.02(b) provides that, with regard to exceptions:
The prosecuting attorney must negate the existence of an exceрtion in the accusation charging commission of the offense and рrove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.
The Appellаnt asserts that the State’s failure to negate the applicablе exception in its motion to revoke adult probation causes the charging instrument to be fundamentally defective in that it fails to state an offense. We agree.
The State contends that its allegation thаt the Appellant “did then and there (unlawfully)” commit the two alleged aсts which violated the probation condition that he “[cjommit no offеnse against the laws of this State” served to negate the statutory exсeption. We note that Section 2.02 requires the State to negatе the exception “in the accusation charging commission of thе offense .... ” The clear import of that language is that the necеssity of pleading the negation of the existence of the exception is not limited to informations or indictments but applies to any chаrging instrument. Given the specificity of the language in Section 2.02, we find that a mere allegation of unlawfulness does not negate the existencе of the exception with requisite specificity. Ground of Error No. Two is sustained.
In light of the above ruling, we find it unnecessary to address the Appellant's remaining grounds of error except to note that any repleading by the State might well take into account the pertinent rulings containеd in
Swabado v. State,
The judgment is reversed and remanded for further action not inconsistent with this opinion.