Must a Texas county clerk let the public use a sheet-feed scanner to copy records?

Plain-English summary

The Texas Attorney General concluded in 2012 that the public had a statutory right to inspect and copy records maintained by county clerks, subject to reasonable clerk rules. Local Government Code sections 191.006 and 118.024 protected access while allowing a clerk to regulate the time, place, equipment, and method of copying within statutory limits.

The opinion did not decide whether the Atascosa County Clerk had to allow a member of the public to use a sheet-feed scanner instead of a handheld scanner. No controlling authority addressed that equipment directly, and the dispute turned on facts such as available office space, the scanner's footprint, and the staff needed to supervise its use. Attorney general opinions could not resolve those factual disputes.

The AG identified Permian Report v. Lacy as the governing framework. That case upheld clerk rules assigning a reasonable copying space and allowing equipment-specific restrictions, but invalidated rules that added requirements the statutes did not authorize, such as a bond or cash deposit.

Currency note

This opinion was issued in 2012. 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.

Common questions

Q: Did the AG say the clerk could ban sheet-feed scanners?
A: No. The opinion expressly declined to decide whether the handheld-scanner rule was reasonable or whether the clerk had to allow a sheet-feed scanner.

Q: Could a county clerk make rules about how people copied records?
A: Yes. The cited statutes and cases allowed reasonable rules governing public access and copying, including the space used and restrictions tied to particular equipment or techniques.

Q: What kinds of clerk rules exceeded the statute?
A: The opinion described Permian Report as invalidating rules that required a bond or cash deposit before copying because the Local Government Code did not authorize those conditions.

Q: Why could the AG not settle whether the scanner rule was reasonable?
A: The answer depended on disputed facts about office space, equipment, and operational demands, and the opinion said the attorney general could not resolve disputed fact questions.

Background and statutory framework

A member of the public sought to copy Atascosa County Clerk records with a sheet-feed scanner. The clerk allowed handheld scanners but argued that a sheet-feed device would consume too much office space and staff time.

Section 191.006 made unrestricted county-clerk records open to the public at reasonable times and allowed members of the public to make copies. Section 118.024 placed that access under the clerk's reasonable rules during public office hours. The opinion also discussed the common-law right to inspect and copy public records but confined its conclusion to Texas statutes and Texas cases.

Citations and references

• Tex. Loc. Gov't Code §§ 118.024, 191.006
• Tex. Gov't Code § 311.023(4)
• Permian Report v. Lacy, 817 S.W.2d 175 (Tex. App.—El Paso 1991, writ denied)
• Tobin v. Knaggs, 107 S.W.2d 677 (Tex. Civ. App.—San Antonio 1937, writ ref'd)
• Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.—San Antonio 1915, writ ref'd)
• Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978)
• Tex. Att'y Gen. Op. Nos. GA-0400 (2006), GA-0459 (2006), V-681 (1948)
• Tex. Att'y Gen. ORD-204 (1978), ORD-521 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0915
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0915.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

March 22, 2012

The Honorable Lucinda A. Vickers
Opinion No. GA-0915
Atascosa County Attorney
#1 Courthouse Circle Drive #3-B
Re: Whether a county clerk must allow the public
Jourdanton, Texas 78026
to copy records with a sheet-feed scanner
(RQ-0916-GA)

Dear Ms. Vickers:

A member of the public wants to use a sheet-feed scanner to copy records maintained by the Atascosa County Clerk (the “Clerk”).¹ You state that using such a scanner would violate the Clerk’s rule that allows the use of handheld scanners. Request Letter at 1-2. You also suggest that a sheet-feed scanner would require too much of the Clerk’s office space and personnel. Id. at 2; see also id. at Exhibit 2-a (containing the Clerk’s rule that provides, “limit use of records, equipment, or space”). You ask whether the Clerk must allow the use of a sheet-feed scanner and whether the Clerk’s rules regarding access to and copying of records are reasonable. Request Letter at 1. Because no legal authority specifically addresses the issues your questions raise, we cannot directly answer your questions. We will, however, discuss the laws a court would likely review in determining the validity of a rule and identify rules that a Texas court has determined to be valid.

Section 191.006 of the Local Government Code provides, “All records belonging to the office of the county clerk to which access is not otherwise restricted by law or by court order shall be open to the public at all reasonable times. A member of the public may make a copy of any of the records.” TEX. LOC. GOV’T CODE ANN. § 191.006 (West 2008). Similarly, section 118.024 provides, “A person is entitled to read, examine, and copy [records in a county clerk’s office] . . . under the reasonable rules of the county clerk at all reasonable times during the hours in which the clerk’s office is open to the public.” Id. § 118.024. Texas courts have construed this section and its predecessor as confirming that a county clerk may impose reasonable regulations on the public’s right to copy a clerk’s records. Permian Report v. Lacy, 817 S.W.2d 175, 177-78 (Tex. App.—El Paso 1991, writ denied). See also Tobin v. Knaggs, 107 S.W.2d 677, 680 (Tex. Civ. App.—San Antonio 1937, writ ref’d) (interpreting Texas Revised Civil Statute article 1945, the predecessor statute of section 191.006, and noting that county clerks may not deny anyone who agrees “to observe all reasonable rules and regulations imposed in good faith” by the clerk the right to copy the clerk’s records).

¹ See Letter from Honorable Lucinda A. Vickers, Atascosa Cnty. Att’y, to Honorable Greg Abbott, Tex. Att’y Gen. at 1 & Exhibit 1 (Sept. 9, 2010), http://www.texasattorneygeneral.gov/opin (“Request Letter”). The person who wants to use a sheet-feed scanner disputes this. See Letter from Keith Houseman to Honorable Greg Abbott, Tex. Att’y Gen. (Sept. 26, 2010) (on file with the Op. Comm.) (“Houseman Letter”).

Texas courts have also identified a common-law right to inspect public records that includes a right to make copies. E.g., Palacios v. Corbett, 172 S.W. 777, 781-83 (Tex. Civ. App.—San Antonio 1915, writ ref’d); Tex. Att’y Gen. Op. No. V-681 (1948) at 3-5; Tex. Att’y Gen. ORD-204 (1978); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). This right generally informs the construction of statutory enactments that confer a right to inspect and copy public records. Palacios, 172 S.W. at 782; Tobin, 107 S.W.2d at 680; see also TEX. GOV’T CODE ANN. § 311.023(4) (West 2005) (directing court to consider common law on same subject when construing legislation); Tex. Att’y Gen. ORD-521 (1989) at 3. While courts outside of Texas have described the common law as creating a presumption favoring those seeking to inspect and copy, and those courts have often upheld clerks’ rules only to the extent they are shown to be necessary to avoid destruction to the records or disruption of the office’s function,² Texas courts have not attempted a definitive exposition of the common-law right of access in connection with Texas statutes. See Tobin, 107 S.W.2d at 680. Accordingly, we will confine our analysis to Texas statutes and the cases applying them.

The court in Permian Report examined a county clerk’s rules regarding public access to the clerk’s records and determined that some of the rules were valid and that others were invalid. Permian Report, 817 S.W.2d at 176-78. The invalid rules purported to allow the clerk to do things that the Local Government Code did not authorize or prescribe, such as requiring the public to post a bond or cash deposit before copying the clerk’s records. Id. at 177-78 & App. One of the valid rules required the clerk to “determine . . . a reasonable space necessary to conduct the copying of the records” and restricted copying to the space specified by the clerk. Id. at 178 & App. Another valid rule provided that, “[b]ecause of the extensive variations in reproduction equipment and the duplication techniques employed, it may become necessary for the Clerk to impose such reasonable and necessary rules to be applied based upon the particular equipment or technique described in the application.” Id.

While Permian Report prescribes a general framework for analyzing the reasonableness of a clerk’s rules, we have not found any other legal authority addressing the validity of rules like the Atascosa County Clerk’s rules. Cf. Tex. Att’y Gen. Op. No. GA-0400 (2006) (analyzing an analogous situation and stating that the result applies only to the office of the San Patricio County Clerk). To determine whether the Clerk’s rules requiring the use of a handheld scanner and limiting the use of space are reasonable, a court would likely have to answer disputed fact questions such as how much of the Clerk’s office space is available and how much space the Clerk and the public need. See Request Letter at 1-2 (discussing how much office space is available); Houseman Letter at 1-2 (discussing how much office space is available and how much space the sheet-feed scanner would need). Because we cannot answer such questions, we cannot determine whether the Clerk’s interpretation of its rules is reasonable. See Tex. Att’y Gen. Op. No. GA-0459 (2006) at 3-4, 5 (noting that attorney general opinions cannot resolve disputed fact questions). Therefore, we cannot predict whether a court would find the Clerk’s rules valid. Because we cannot conclude that the Clerk’s rule regarding use only of handheld scanners is valid, we cannot determine whether the Clerk must allow the use of a sheet-feed scanner.

² E.g., Nixon, 435 U.S. at 603; Bell v. Commonwealth Title Ins. & Trust Co., 189 U.S. 131, 132-34 (1903); Bruce v. Gregory, 423 P.2d 194, 197-98 (Cal. 1967) (surveying decisions of other state Supreme Courts).

SUMMARY

Under Texas law, the public has a right to access and copy records maintained by county clerks. Texas courts have held that this right is subject to a county clerk’s reasonable rules and regulations. A county clerk’s rules regarding the public’s access to and copying of records would be valid if the rules did not go beyond the statutes providing for access to and copying of records.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee