Can a Texas county clerk use the records management fee to buy historical documents?

TX AG Opinion GA-0521: Can a county clerk's records-management fee buy archival documents?

Plain-English summary

The Bexar County Criminal District Attorney asked whether a county clerk could tap the records management and preservation fee to buy a particular historical document: verified 1838 correspondence from a colonel under Ben Milam to Jose Antonio Navarro, dealing with alleged voting irregularities in Navarro's election to the Congress of the Republic of Texas. The clerk had a copy but believed the original belonged in the county's permanent records and should be returned there as part of his preservation and records-retention duties.

The Attorney General said no. Under section 118.011(b) of the Local Government Code, a county clerk may set and collect a records management and preservation fee of not more than $5 for non-court-related services. But section 118.0216(a) ties that fee to "the records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk," and section 118.0216(d) says the fee "may be used only to provide funds for specific records management and preservation, including for automation purposes." The original document, whatever its history, was not at that time part of the clerk's records. Reading the statute by its plain language, the opinion concluded the fee could not be used to buy original records that are not in the clerk's possession; its use is limited to managing and preserving records the office already holds.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The fee amounts and the section 118.011 / 118.0216 scheme in the Local Government Code may have been amended since 2007. Anyone deciding today how a county clerk's records management and preservation fee can be spent should check the current statute rather than the 2006 Vernon citations used here.

Who this opinion affected (as of 2007)

County clerks: The opinion told them the records management and preservation fee was a maintenance fund for the documents already filed and recorded in their office, not a fund for acquiring documents the office did not hold, no matter how historically significant.

Commissioners courts: The opinion is consistent with the statutory role of approving expenditures from the county clerk records management and preservation fund in advance; spending that fund to purchase an outside original would fall outside the fee's authorized uses.

County historical and archival interests: The opinion meant that acquiring a privately held historical original (like the 1838 Navarro letter) had to be funded some other way, because this particular fee could not reach it.

Common questions

What is the county clerk records management and preservation fee for?
The opinion explained it pays for managing and preserving documents after they have been filed and recorded in the clerk's office, including automation, under sections 118.011 and 118.0216 of the Local Government Code.

Can the fee be used to buy a historically important document the county does not have?
No. The opinion concluded the fee may not be used to purchase original records that are not currently in the clerk's possession.

Does it matter that the document may once have been a county record?
The opinion noted the original "may or may not have been originally filed and recorded" with the clerk, but what controlled was that it was not part of those records at present, so the fee could not be spent to reacquire it.

Who approves spending from this fund?
The opinion cited section 203.003(5), which directs the commissioners court to establish the county clerk records management and preservation fund and to approve expenditures from it in advance.

Background and statutory framework

A county clerk may set and collect a records management and preservation fee of not more than $5 from any person for non-court-related services (Tex. Loc. Gov't Code Ann. § 118.011(b) (Vernon Supp. 2006)). That fee is for the records management and preservation services the clerk performs after a document is filed and recorded in the office of the clerk, and it may be used only to provide funds for specific records management and preservation, including automation (Tex. Loc. Gov't Code Ann. § 118.0216(a), (d) (Vernon Supp. 2006)). A separate provision directs the commissioners court to establish a county clerk records management and preservation fund for fees subject to section 118.0216 and to approve any expenditures from the fund in advance (Tex. Loc. Gov't Code Ann. § 203.003(5) (Vernon 1999)).

The opinion applied ordinary rules of statutory construction, beginning with the statute's plain language to give effect to legislative intent (McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); In re Canales, 52 S.W.3d 698, 702 (Tex. 2001)). Because the fee is tied to services performed after a document is filed and recorded in the clerk's office, and the original at issue was not then part of the clerk's records, the opinion concluded the fee could not be used to purchase it.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 118.011(b) (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 118.0216(a), (d) (Vernon Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 203.003(5) (Vernon 1999)

Cases:

• McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003)
• In re Canales, 52 S.W.3d 698, 702 (Tex. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0521
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0521.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 21, 2007

The Honorable Susan D. Reed
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

Opinion No. GA-0521

Re: Whether funds collected by a county clerk as part of the records management and preservation fee may be used to purchase certain archival records (RQ-0525-GA)

Dear Ms. Reed:

You ask whether funds collected by a county clerk as part of the records management and preservation fee may be used to purchase certain archival records.[1]

You indicate that the document at issue

consists of verified correspondence from William E. Howth, a Colonel under Ben Milam, and third signer of the first Declaration of Independence at Goliad, to Don Jose Antonio Navarro, dated September 10, 1838, and addresses Navarro's election to the Congress of the Republic of Texas on the grounds of "Voting Irregularities." The document is addressed to the "Republic of Texas, County of Bexar" and to Mr. Navarro and is a notice of intent to take the deposition of A.B. Col. [EFH] who is believed to have been a polling clerk or other election official.

Request Letter, supra note 1, at 2. You declare that, although the county clerk has in his possession a copy of the document, the clerk believes that the original "document was . . . part of the permanent records of the County and must be returned to those records as part of his duties of preservation and records retention completeness." Id. at 3.

Pursuant to section 118.011(b) of the Local Government Code, a county clerk "may set and collect . . . from any person" a records management and preservation fee of "not more than $5" for non-court-related services. TEX. LOC. GOV'T CODE ANN. § 118.011(b) (Vernon Supp. 2006). The referenced fee "is for the records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk." Id. § 118.0216(a). "The fee may be used only to provide funds for specific records management and preservation, including for automation purposes." Id. § 118.0216(d). Another statutory provision directs a commissioners court to "establish a county clerk records management and preservation fund for fees subject to Section 118.0216 and approve in advance any expenditures from the fund." Id. § 203.003(5) (Vernon 1999).

The primary purpose of statutory construction is to ascertain and give effect to the Legislature's intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In order to ascertain legislative intent, we begin by construing a statute according to its plain language. See In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). As we have noted, the records management and preservation fee described by section 118.011 of the Local Government Code is to be used "for the records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk." TEX. LOC. GOV'T CODE ANN. § 118.0216(a) (Vernon Supp. 2006) (emphasis added). The original of the document at issue here, while it may or may not have been originally filed and recorded in the records of the county clerk, is not at present a part of those records. In our view, the fee described by section 118.011 may not be used to purchase original records that are not in the clerk's possession. Rather, its use is restricted to "records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk." Id.

SUMMARY

The records management and preservation fee described by section 118.011 of the Local Government Code may not be used to purchase original records that are not currently in the possession of the county clerk. The use of the fee is restricted to "records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk." TEX. LOC. GOV'T CODE ANN. § 118.0216(a) (Vernon Supp. 2006).

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Aug. 24, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].