Who controlled records that elected Harris County officers stored in the county computer, and could the county allow private dial-up access?

Elected officers retained control of records stored in the county computer

Plain-English summary

Harris County operated a central computer through its Justice Information Management System department and a commissioners-court-created management board. Disputes arose over criminal-case data, control of records entered by elected offices, criminal-history restrictions, access to a state law-enforcement network, and proposed private dial-up access.

The Attorney General concluded that storing information in the central computer did not transfer control away from the elected county, district, or precinct officer whose office created or received it. State records statutes charged those officers with managing, preserving, and controlling their records. Neither the commissioners court nor its computer agency could displace that authority.

An elected county officer could delegate specified records-management duties under Local Government Code section 203.005(g). The commissioners court's computer department could also manage records created by nonelective county offices under the authority given to it.

The commissioners court and its computer-management agency did not have general authority to enforce state or federal criminal-history dissemination laws. Those laws still governed the agencies and officers to whom they applied, but county computer administrators did not acquire independent enforcement jurisdiction merely by operating the system.

The commissioners court had implied authority to contract with the Department of Public Safety for county access to the Texas Law Enforcement Telecommunications System. That county contracting authority did not allow the court to control records assigned by law to elected officers.

The commissioners court could not authorize private users to obtain dial-up access to records of elected county, district, or precinct officers stored in the county computer. The opinion did not decide whether a particular elected officer could consent to access under conditions protecting confidential information.

Currency note

This opinion was issued in 1990. 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.

What the opinion said for affected groups in 1990

Elected county, district, and precinct officers

Each officer retained statutory authority over information created or received by that office. Computer storage did not make the information a commissioners court record or a JIMS department record.

Commissioners court

The court could provide and contract for a county computer system, manage records of nonelective offices through its agency, and contract for state telecommunications access. It could not use those functions to take over an elected officer's records or authorize private access to them.

County computer administrators

JIMS could operate the shared system, program access, train users, and maintain security. It was not generally empowered to decide or enforce every criminal-history disclosure rule applicable to the records stored in the system.

Law-enforcement and court offices

Each participating office remained responsible for its own statutory records and applicable confidentiality rules. Access to a shared system did not erase the separate legal authority of the district clerk, prosecutor, sheriff, courts, or other officials.

Members of the public and private subscribers

The commissioners court could not create a private dial-up route into elected officers' computerized records. The opinion left open a narrower question involving consent by the affected officer and protection of confidential data.

Common questions

Did putting a record in the county computer transfer ownership or control to JIMS?

No. The opinion treated storage as a technical arrangement, not a transfer of the elected officer's statutory records authority.

Could an elected officer delegate records duties to the county computer office?

Yes, for the duties allowed by Local Government Code section 203.005(g). The delegation came from the officer rather than from commissioners court power to displace the officer.

Could JIMS enforce criminal-history dissemination laws across the county?

Not generally. The opinion found no broad enforcement authority in the commissioners court or the computer agency.

Could Harris County contract for access to the state law-enforcement telecommunications system?

Yes. The commissioners court had implied authority to make the county contract with the Department of Public Safety.

Could the commissioners court sell or authorize private dial-up access to computerized records?

Not for records controlled by elected county, district, or precinct officers. The court lacked authority to grant access to records it did not control.

Did the opinion decide every Open Records Act disclosure question?

No. It discussed the governing records and criminal-history rules, but several conclusions depended on which office controlled a record and which confidentiality provision applied.

Background and legal framework

The former Open Records Act, article 6252-17a, governed public access and exceptions as they then existed. The opinion discussed the Houston Chronicle litigation concerning criminal-case records and distinguished basic public information from protected investigative details and criminal-history databases.

Local Government Code chapters 201 through 205 governed local-government records. Sections 203.002 and 203.005 assigned records-management duties to elected county officers, while section 205.002 addressed electronic storage. The opinion applied those statutes to information maintained on a shared computer.

Federal criminal-history rules restricted dissemination of information obtained through federally supported systems. The opinion distinguished those substantive restrictions from the institutional question of which county body possessed enforcement power.

The commissioners court possessed only express and necessarily implied powers. It could contract for county needs, including access to the state telecommunications system, but could not grant an agent authority that the court itself lacked or intrude on statutory duties assigned to other elected officers.

Key citations

• V.T.C.S. article 6252-17a
• Local Government Code §§ 203.002, 203.005, and 205.002
• 42 U.S.C. § 3789g(c)
• 28 C.F.R. part 20
• Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App. - Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976)
• Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980)
• Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972)
• Aldrich v. Dallas County, 167 S.W.2d 560 (Tex. Civ. App. - Dallas 1942, writ dism'd)
• Jones v. Veltmann, 171 S.W. 287 (Tex. Civ. App. - San Antonio 1914, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1224
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1224.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected where verified against the scan and reporter citations; minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

JIM MATTOX September 17, 1990
ATTORNEY GENERAL

Honorable Mike Driscoll Opinion No. JM-1224

Harris County Attorney

1001 Preston Re: Whether information relating

Suite 634 to criminal cases is subject to

Houston, Texas 77002 disclosure and related questions
(RQ-1482)

Dear Mr. Driscoll:

You ask nine questions regarding the operation of the
Harris County computer system and the authority of a board
created by the Harris County Commissioners Court to manage
the system. The questions stem from disagreements over the
control of and access to information stored in the computer.
Before considering your questions, we will briefly review

o— the factual information supplied by your office and others.

In October of 1977 the commissioners court created a
county department called the Justice Information Management
System (JIMS), evidently for the purpose of operating and
maintaining the county’s central computer system.1 The
duties of the department include, among other things, the
programming of the central computer to meet the needs of
those county offices with authorized access to the system,
the training of county officials and employees in the use of
the computer, and the assignment of passwords and trans-~
action codes to control access to information stored in the
computer. Some of these tasks are performed in conjunction
with the county data processing department.

Your request for this opinion is prompted by the use of
the county computer to collect and maintain information
regarding pending and closed criminal cases. You inform us
that the district clerk, the district attorney, the county
sheriff, the county criminal courts, the county pre-trial

1. As we understand it, the central computer is the
   only electronic data processing resource available to most
   county offices.
   
   Honorable Mike Driscoll - Page 2 (JM-1224)

services agency, the county adult probation department and
juvenile probation department, justices of the peace, and
county constables all store information concerning criminal
cases in the computer. Though controls are programmed into
the system by JIMS andthe data processing department,
information originally collected and entered into the
computer by one agency may later be retrieved and updated by
other agencies or be integrated with information collected
by other agencies. These conditions have raised questions
concerning the "custody" and control of criminal case
information stored in the county computer.

The commissioners court appointed an executive board to
oversee the operation of JIMS and the computer system. The
board was specifically empowered to “establish and audit
security codes" and to “authorize data elements to be
entered and to whom they shall be distributed." The
board’s membership is composed of the administrative judge
of the district courts trying criminal cases, the presiding
judge of the county criminal courts at law, a judge of one
of the family district courts, a judge of one of the
juvenile district courts, a justice of the peace, the
district attorney, the district clerk, the county sheriff,
and a county constable.

In 1985 the JIMS executive board executed an agreement
with the Texas Department of Public Safety (DPS) regarding
access to the Texas Law Enforcement Telecommunications
Systems (TLETS), a statewide clearinghouse for information
collected and exchanged between law enforcement agencies
throughout the state. The system, managed and operated by
the DPS, provides local law enforcement agencies access to
the resources of the National Crime Information Center, the
National Law Enforcement Telecommunications System, the
Texas Crime Information Center, the vehicle registration
files of the Motor Vehicle Division of the Texas Department
of Highways and Public Transportation, and the adriver’s
license files of the DPS.

Among other things, the agreement between the JIMS
board and the DPS requires JIMS to abide by all applicable
state and federal laws, as well as any policies and pro-
cedures adopted by the administrators of the information
systems that comprise the network. Though the agreement is
silent on the matter, the JIMS board apparently interpreted
the agreement to also impose on it the duty to ensure
compliance by all users of the _ system. Violation of

p. 6486

Honorable Mike Driscoll - Page 3 (JM-1224)

applicable policies may result in an immediate suspension of
service.2

Security breaches at the county level prompted the JIMS
board to adopt security policies and procedures governing
access to the computer system and retrieval of information
collected in criminal proceedings. The board now requires
all persons with access to the system to execute a form
acknowledging that they understand the security policies and
that violation of the policies and procedures may result in
termination of their employment. The board also has
instituted a policy of unilaterally terminating access to
the computer system by persons, offices, or departments
deemed in noncompliance with the security policies. In
1986, this policy was invoked against the office of the
district clerk for its refusal to execute the security
forms.

With these facts in mind, we now proceed to your first
set of questions.

1. If the district clerk enters information
   contained in instruments, pleadings,
   orders, and documents in criminal cases
   in the county’s computer to produce
   indices, registers and dockets, are such
   electronic/computer records public? Does
   such information constitute exempt crinm-
   inal justice information?

2. Are such computer records part of the
   district clerk’s ‘official records’?

These questions relate to the status of information
collected by the district clerk from court documents and
transmitted to the county computer. The information the
district clerk transfers to the computer includes basic data
such as the defendant’s name and date of birth, the name of
his attorney, and other information reflecting progress of

2. We are informed that the DPS, in the exercise of
   its discretion, designated the Harris County central
   computer system as the sole link to the TLETS network in
   Harris County. All local law enforcement agencies in Harris
   County that receive TLETS, including those not affiliated
   with the county government, must obtain access to the system
   through the Harris County computer.

p. 6487

Honorable Mike Driscoll - Page 4 (JM-1224)

the defendant’s case through the court system. The district
clerk maintains the original documents from which the infor-
mation was obtained, a microfilm or microfiche copy of the
document, or both. With this information the district clerk
creates a number of separate documents including indices,
case summaries, case status reports, calendars, and other
documents relating to pending or closed criminal cases.

You have informed us of a case filed with the Texas
Court of Criminal Appeals that deals with issues similar to

the ones you pose. It is styled Houst Chronicle blish-
ing Co. v. The Honorable Charles Hearn, District Judge,

263rd District Court, Harris County, Texas, No. 20,998-01

(filed Nov. 22, 1989). At issue was an order of the admin-
istrative judge of the district courts of Harris County that
forbids the district clerk and county sheriff from disclos-
ing the street addresses or telephone numbers of any defen-
dant in any criminal case in the district courts until an
attorney is hired or appointed to represent the defendant.

A newspaper publisher anda reporter contested the
order. They attacked it as an infringement of their right
of access to court files under the First Amendment to the
United States Constitution and article I, sections 8, 10,
and 13, of the Texas Constitution. They filed a motion
before the Court of Criminal Appeals for leave to file
application for writs of mandamus and prohibition.

The Court of Criminal Appeals denied the motion without
written order on March 7, 1990. As a result of this ruling,
the order of the district judge prohibiting the district
clerk and sheriff from releasing the specified information
remains in effect. It is inappropriate in an opinion of the
attorney general to review or interpret the orders of the
courts mandating that certain information be kept confiden-
tial. See, e.g., Open Records Decision No. 560 (1990). And
in light of the possibility of further litigation on this
matter, we will defer answering your questions as they
relate to records in the custody. of the district clerk until
the matter is finally resolved. If, following resolution of
this matter, you still require an opinion on the status of
the records of the district clerk, please resubmit your
questions at that time.

3. What criminal history information, if
   any, which is maintained or which may be
   accessed through the county’s computer
   may be disclosed by the district clerk
   and other county officials?

p. 6488

Honorable Mike Driscoll - Page 5 (JM-1224)

We assume that by use of the term "criminal history
information" you refer to information relating to criminal
cases, the disclosure of which may be governed by state or
federal law and regulations.

Federal law and regulations govern the dissemination of
criminal history record information by agencies that
collect, maintain, and exchange such information with
support provided by the federal government for such
purposes. See 42 U.S.C. § 3789g(c); 28 C.F.R. § 20.21(b).
Criminal history record information is defined as

information collected by criminal justice
agencies on individuals consisting of iden-
tifiable descriptions and notations of
arrests, detentions, indictments, informa-
tions, or other formal criminal charges, and
any @isposition arising therefrom, sentenc-
ing, correctional supervision, and release.

28 C.F.R. § 20.3(b). The federal regulations are intended
to protect individual privacy and to insure that criminal
history information, wherever it appears, is collected,
stored, and disseminated in a manner that insures its
completeness, accuracy, and security. Id. § 20.1.

State and local agencies maintaining and disseminating
criminal history information with federal assistance are
subject to certain restrictions on dissemination set forth
in the federal regulations. See id. §§ 20.20 - 20.25.
These restrictions do not apply to criminal history
information contained in court records of public judicial
proceedings. Id. § 20.20(b)(3). Thus, federal regulations
have no bearing on the disclosure of criminal history
information in records of public judicial proceedings that
are in the custody of the district clerk. There remains,
however, the issue of the disclosure of information from
court records under state law, an issue left unresolved by
the Houston Chronicle v. Hearn case. For this reason, we
are unable to answer your third question as it relates to
the district clerk at this time. We can answer the question
as it applies to other county and district offices.

The federal regulations described here affect two
categories of criminal history information: (1) information
collected, stored, and disseminated by state or local
agencies, and (2) information obtained from any United
States Department of Justice criminal history record
information system.

p. 6489

Honorable Mike Driscoll - Page 6 (JM-1224)

The regulations affecting state and local operations do
not purport to make any criminal history information confi-
dential, but authorize the states and local governments’ to
determine the purposes for which criminal history record
information may be disseminated pursuant to state law, exec-
utive order, local ordinance, or a rule, decision, or order
of a court. Id. § 20.21(c) (3). The regulations do not
limit dissemination by a state or local agency of criminal
history information that originates from the agency itself.
See Open Records Decision No. 144 (1976). One regulation
allows dissemination to “individuals and agencies for any
purpose authorized by statute *- « - aS construed by
appropriate state or local officials or agencies." Id.
§ 20.21(b) (2). These provisions require consultation of the
Open Records Act, V.T.C.S. article 6252-17a, and interpreta-
tions of the act by the courts and this office.

The availability of information relating to arrests
under section 3(a)(8) of the Open Records Act was determined
in Houston Chronicle Publishing Co. v. City of Houston, 531
S.W.2d 177 (Tex. Civ. App. - Houston [14th Dist.] 1975),
writ ref’d n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976),
and summarized in Open Records Decision No. 127 (1976). The
holding in that case prohibits the disclosure to the public
of the chronological history of an individual’s arrests and
their disposition. 531 S.W.2d at 187-88.

The federal regulations referenced here also address
the dissemination of criminal history information contained
in any United States Department of Justice criminal history
information system, including NCIC. See 28 C.F.R. §§ 20.30

• 20.38. Dissemination of criminal history information
  contained in any such system is authorized in four
  instances. See id. § 20.33. In addition, the subjects of
  criminal history information are allowed access to their own
  criminal histories. Id. § 20.34; see Open Records Decision
  No. 565 (1990). These regulations are not germane to the
  office of district clerk, since it does not have access to
  Department of Justice criminal history information systems.
  County offices that have access to such systems must, of
  course, abide by federal regulations and policies in order
  to receive assistance from the information systems. See 28
  C.F.R. § 20.36.

Consequently, county officials are not required to
disclose to the public criminal history information
maintained on the Harris County computer system that is
collected by a county or district office, even if acquired
without the assistance of any Department of Justice criminal
history information system. Information obtained from these

p. 6490

Honorable Mike Driscoll - Page 7 (JM-1224)

federal sources may be disseminated in accordance with
federal regulations.

State law also addresses the collection and dissemi-
nation of criminal history information by criminal justice
agencies. Chapter 60 of the Code of Criminal Procedure,
articles 60.01 through 60.09, was enacted by the 71st Legis-
lature and became effective on September 1, 1989. Acts
1989, 71st Leg., ch. 785, § 6.01 at 3548. It delegates to
the Texas Department of Criminal Justice (TDCJ) the respons-
ibility of establishing a data base for a centralized
criminal history record information system. Code Crin.
Proc. art. 60.02(a). The DPS is given the duty of main-
taining a data base for a computerized criminal history
information system that serves as a "record creation point"
for criminal history information maintained by the state.
Id. art. 60.02(b).

Under chapter 60, criminal justice agencies are expect-
ead to maintain and report to the TDCJ and the DPS' specified
information relating to criminal cases, with certain excep-
tions. See id. arts. 60.05, 60.06(a). Criminal ‘justice
agencies must also provide other criminal justice agencies
with access to their own criminal history information
systems. The duties imposed on criminal justice agencies by
article 60.06 are also imposed on the clerks of the district
and county courts. Id. art. 60.06(e).

Information on an individual collected by the TDCJ and
the DPS from criminal justice agencies and stored in a
central location that consists of

an identifiable description and notation of
an arrest, detention, indictment, informa-
tion, or other formal criminal charge and a
disposition of the charge including sen-
tencing, correctional supervision, and re-
lease... is not subject to public dis-
closure except as authorized by federal or
state law or regulation.3

3. This language parallels the definition of "criminal
   history record information" found at title 28, section 20.3,
   of the Code of Federal Regulations and quoted in a preceding
   paragraph.

p. 6491

Honorable Mike Driscoll - Page 8 (JM-1224)

id. art. 60.06(b). This limitation does not apply to a
document of a criminal justice agency that is the source of
information collected by the TDcJ. Id. art. 60.06(c).
Similarly, an individual’s criminal history record may not
be disclosed to the public by either a criminal justice
agency or the Criminal Justice Policy Council if the record
is protected by state or federal law or regulation. Id.
art. 60.03(b). Chapter 60 thus requires an examination of
other state and federal laws governing disclosure of
criminal history information. See generally Open Records
Decision No. 565 (1990).

4. Who is the ‘custodian’ of all or portions
   of the records contained in the county’s
   computer?

This question is prompted by general concerns over the
control and "custody" of information stored in the county
computer. The JIMS board, you advise, contends it is the
custodian of all information housed in the county computer
and is thereby authorized to determine who may have access
to that information. You emphasize that the question of
control is significant because computer programming allows a
county office to manipulate information in the computer
files of other offices simply by updating information in its

own computerized records. The example you give is a
notation in the records of a court that a defendant in a
criminal case is released on personal recognizance. Once

this information is entered into the court’s or the district
clerk’s computer files, the computer system automatically
updates the information in computer files created for the
same case by other county offices (e.g., the county sheriff
er district attorney). You acknowledge that this may be an
efficient use of the county computer, but you believe that
it improperly wrests control from the hands of county
officers who may have a legal duty to retain control over
such information.

You argue that county officers, designated the
custodians of records of their respective offices by the
Open Records Act, should retain control of information
maintained by their offices, including information housed in
the county computer. We agree with your conclusion, but
note that the issue of control is resolved by recent
legislation.

Prior to 1989, there was little law expressly governing
the establishment or operation of a computerized
recordkeeping system for the use of county or district
officers. See, e.g., Code Crim. Proc. art. 2.26 (repealed

p. 6492

Honorable Mike Driscoll - Page 9 (JM-1224)

in 1989, provided that commissioners court could authorize,
among other things, the electronic entry, storage, and
retrieval of records which the Code of Criminal Procedure
requires county officers to keep); Gov’t Code §§ 51.801 -
51.807 (authorizing the electronic filing of certain
documents in district and county courts, subject to rules
and procedures adopted by the Supreme Court of Texas).
Authority for the establishment of a computer system by a
commissioners court is now expressly recognized in the Local
Government Code.

Subtitle Cc of Title 6 of the Local Government Code was
amended during the 71st Legislative Session and designated
the Local Government Records Act. Acts 1989, 71st Leg., ch.
1248, at 4996. Section 205.002 of the Local Government
Code, enacted as part of the Local Government Records Act,
provides that "“[a]ny local government record data may be
stored electronically in addition to or instead of source
documents in paper or other media," subject to the
provisions of chapter 205 of the Local Government Code and
rules adopted under it. This provision authorizes the
storage of information on _ computer. Local Gov’t Code
§ 205.001(1) (definition of "electronic storage"). "Local
government record data" is defined simply as any information
that comprises a local government record under law,
regulation, rule of court, ordinance, or administrative
procedure. Id. § 205.001(2). With exceptions not
applicable here, "local government record data" is defined
to mean

any document, paper, letter, book, map,
photograph, sound or video recording,
microfilm, magnetic tape, electronic mediun,
or other information recording medium,
regardless of physical form or characteristic
and regardless of whether public access to it
is open or restricted under the laws of the

state, created or received by a local

government or any of its officers or
employees pursuant to law, including an

ordinance, or in the transaction of public
business. (Emphasis added.)

Id. § 201.003(8).

The term “local government" includes, among other
entities, a county, “including all district and precinct
offices of a county." Id. § 201.003(7). District and
precinct offices such as the offices of district attorney,

p- 6493

Honorable Mike Driscoll - Page 10 (JM~1224)

district clerk, justice of the peace, and constable are
Classified as county offices for the purposes of the act.

The subject of control and custody of information col-
lected by county officers and stored electronically in a
computer is addressed by the Local Government Records Act.
The act identifies three agents of county government -- the
commissioners court, “records management officers," and
"custodians" -- and prescribes in careful detail their
duties regarding the management and preservation of county
records. See id. §§ 203.001 - 203.003, 203.021 - 203.023.

The "records management officer" is either an elected
county officer or a person, office, or position designated
by the governing body to serve in that capacity. See id.
§§ 201.003(14), 203.001, 203.025. The duties of the records
management officer vary, depending on whether the particular
county office or department is elective or nonelective, but
in either case the officer is made chiefly responsible for
the administration of a records management program and the
protection and preservation of the records of county
offices. See id. §§ 203.002, 203.023. The "custodian" of
records is the appointed or elected public officer who under
state constitution, state law, ordinance, or administrative
policy is in charge of an office that creates or receives
local government records. Id. § 201.003(2).

A significant feature of the Local Government Records
Act is its allocation of authority to develop and implement
a records management program -~- j.e., the policies, methods,
and procedures for the management and preservation of county
records. See id. §§ 203.005, 203.026. It is this aspect of
the act that settles the general question of control and
custody of information stored by computer.

The commissioners court is responsible for establishing
a records management program for nonelective county offices.
See id. §§ 203.021, 203.026. Elected county officers are
designated the "records management officers" for their
respective offices and are delegated preeminent authority to
develop and administer the records management program for
their offices. In addition, elected county officers are
chiefly responsible for adopting records control schedules,
preparing electronic storage authorization requests and
records destruction requests, and preserving and protecting
certain records of their offices. Id. § 203.002.

The elected county officer is given discretion to adopt

specific records management procedures and techniques, so
long as they are consistent with regulations promulgated by

p. 6494

Honorable Mike Driscoll - Page 11 (JM-1224)

the State Library and Archives Commission. See id.
§§ 201.003(1), 203.002, 203.005(b). The commission is
required to adopt standards and issue regulations for the
microfilming of local government records and the electronic
storage of local government record data of permanent value.4
Id. §§ 204.004, 205.003. It has discretion to adopt
standards for the electronic storage of records with a
retention period of at least ten years. Id. § 205.003.

These provisions specifically address certain kinds of
records and limit the discretion of elected county officers
to adopt management procedures for those records. We
believe elected county officers have complete discretion in
adopting records management procedures for computerized
records or information not covered by these provisions --
i.e., any computerized record or information that does not
have a retention period prescribed by law or that has a
retention period of less than ten years. If the State
Library and Archives Commission elects not to adopt stand-
ards for the electronic storage of records with retention
periods of ten years or longer, we think elected county
officers would have authority to adopt reasonable standards
for those records as well. Moreover, we think elected
county officers have the implied authority to prescribe
reasonable security and control measures for any information
received by their offices and stored electronically, even
those records covered by the commission’s rules. cf.
Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972) (public
officers have implied power to achieve power or object
expressly granted); V.T.C.S. art. 6252-17a, § 5(a) (de-
scribed below).

The Local Government Records Act anticipates that
elected county officers will establish an independent
records management program for their offices, but allows
elected officers to delegate the administration of the
program to the office established by the commissioners court
for nonelective county offices. Id. § 203.005(g). Elected
county officers may also delegate their responsibilities to
the records management officer for nonelective offices in
lieu of adopting an independent progran. Id. Applied to
Harris County, these provisions mean elected county officers

4. A “record of permanent value" is one for which the
   retention period issued by the commission (the time during
   which the record may not be destroyed) is given as
   permanent. Local Gov’t Code § 201.003(10).

p-. 6495

Honorable Mike Driscoll - Page 12 (JM-1224)

may delegate the performance of their duties under the Local
Government Records Act to JIMS if it is designated the
records management officer for nonelective offices in Harris
County.

In the absence of such a delegation of authority by
elected county officers, the role of the commissioners court
in the management of the records of elected county officials

is largely supportive. Id. § 203.003 (commissioners court
shall “promote," "support," and "facilitate" the efficient
ana@ economical creation, maintenance, management, and

preservation of the records of elective county offices).

The primacy of elected county officers over the control
and preservation of the records of their offices is also
acknowledged in the Open Records Act. Section 5 of that act
was amended by the bill enacting the Local Government
Records Act to designate an elected county officer the
“officer for public records" of the office. V.T.C.S. art.
6252-17a, § 5(a). The officer for public records is
responsible under section 5 for ensuring the accessibility,
protection, and preservation of public records, including
records stored on computer. See, e.g., Attorney General
Opinion JM-672 (1987).

These provisions clearly establish that control of
information created or received by elected county officers5
pursuant to law or in the transaction of public business
remains with the elected officers even when the information
is stored in a computer system that serves all county
offices. These provisions do not depart from established
law, but merely reflect principles that are firmly
entrenched in the law of this state. See Familias Unidas v.
Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (elected county
officials in Texas hold "virtually absolute sway over the

5. By its terms, the Local Government Records Act
   designates elected "county" officers as records management
   officers for their respective offices, omitting any
   reference to elected district and precinct officers. As we
   noted earlier, however, district and precinct offices of a
   county are treated as part of a county under the act. Id.
   § 201.003(7). By extension, when the act speaks of elective
   "county" offices, the legislature presumably intended to
   address elective district and precinct offices as well, at
   least where these offices store information on a computer
   system shared with county offices.

p. 6496

Honorable Mike Driscoll - Page 13 (JM-1224)

particular tasks or areas of responsibility entrusted to
{them] by state statute").

Where the duties of county officers are clearly
delegated by statute, the commissioners court has no power
to displace the authority of such officers by the creation
of an agency to perform such duties. See Aldrich v. Dallas
County, 167 S.W.2d 560 (Tex. Civ. App. - Dallas 1942, writ
dism’d); Navarro County v. Tullos, 237 S.W. 982 (Tex. Civ.
App. - Dallas 1922, writ ref‘’d); Attorney General Opinion
JM-1074 (1989). The commissioners court may not, moreover,
confer on an agent or other officer authority the court may
itself not exercise. Jones v. Veltmann, 171 S.W. 287 (Tex.
Civ. App. - San Antonio 1914, writ ref’d). An elected
county officer’s assumption of the powers and duties
conferred by the Local Government Records Act effectively
bars the commissioners court or its agent from displacing
the county officer from this position of responsibility.
See, e.g., Attorney General Opinion JM-1074 (1989).

Accordingly, in answer to your fourth question we
conclude that elected county officers in Harris County are
charged by statute with the control, management, and preser-
vation of information created or received by their offices
pursuant to law or in the transaction of public business,
including information that is stored in the Harris County
computer system. V.T.C.S. art. 6252-17a; Local Gov’t Code
§§ 203.002, 203.005, 205.002. Neither the commissioners
court nor the agency created by it to manage the county
computer system may deprive elected county, district, and
precinct officers of this authority. Elected county
officers may delegate certain of these duties to the office
created by the commissioners court to manage the records of
nonelective county offices. Id. § 203.005(g).6

6. It should be noted that article 60.09 of the Code
   of Criminal Procedure authorizes the commissioners court to
   appoint a "local data advisory board" to assist and advise
   the court on matters relating to the collection and transfer
   of criminal history information at the county level. The
   membership of the board parallels the membership of JIMS.
   See Code Crim. Proc. art. 60.09(b). Because the greater
   burden of compliance with chapter 60 falls on those officers
   eligible for appointment to the advisory board, we do not
   believe the authority to appoint advisory boards under
   article 60.09 constitutes supervening authority to manage

(Footnote Continued)

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Honorable Mike Driscoll - Page 14 (JM-1224)

5. What authority does the executive board
   of the Justice Information Management
   System (JIMS) or the commissioners court
   have to enforce any state and/or federal
   statutes relating to the improper
   dissemination of criminal justice
   information and to require other county
   departments and/or officials to adhere to
   security and privacy guidelines
   promulgated by the executive board and/or
   commissioners court?

This question presumably relates to the security poli-
cies adopted by the JIMS board described earlier in this
opinion.

As the discussion of the preceding question made clear,
the primary responsibility to manage and control information
received by elective county offices is with elected county
officers and, for nonelective offices, with the commis-
sioners court. Likewise, we think the duty to observe and
comply with relevant laws governing access and dissemination
of criminal justice information rests with elected county
officers for their respective offices and with the
commissioners court for nonelective offices. We have
located no authority, including chapter 60 of the Code of
Criminal Procedure, that would generally designate the
commissioners court as the agency responsible for the
enforcement of state or federal laws governing access to
criminal justice information stored in the county’s computer
system. It is not inconceivable, however, that the
commissioners court could, with the cooperation of elected
county officers, promulgate effective security policies that
preserve the power of elected county officers to manage and
control the information collected and generated by their
offices.7

”

(Footnote Continued)

the computerized records of all county offices. It is
therefore unnecessary to consider the effect of the possible
appointment of the JIMS board as the local data advisory
board under this provision.

7. You have identified an obvious solution to the
   dilemma facing the county -- i.e., the installation of
   separate computer systems for each county office.
   Alternatively, the county might consider creating a separate

(Footnote Continued)

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Honorable Mike Driscoll - Page 15 (JM-1224)

6. What liability may the JIMS executive
   board incur if information which is con-
   tained in a computer system owned by Har-
   ris County and which is used jointly by
   the Harris County Sheriff, the Harris
   County District Clerk, the Adult
   Probation Department, the Harris County
   Data Processing Department, and JIMS and
   other county departments for the
   functions of said respective departments
   and offices and JIMS is disseminated
   contrary to the security and privacy
   guidelines promulgated by the executive
   board, the commissioners court and/or
   other state and federal agencies?

This question is not one that can properly be answered
by this office. Its speculative and fact-bound nature makes
it appropriate for your office to advise its clients upon
the development of appropriate facts in particular cases.
See Gov’t Code § 45.201.

7. Does the JIMS executive board and/or com-
   missioners court have the authority to
   execute an agreement with the Texas
   Department of Public Safety regarding
   access to the National Crime Information
   Center (NCIC) operated by the Federal
   Bureau of Investigation (FBI) and the
   Texas Crime Information Center (TCIC)
   operated by the Texas Department of
   Public Safety on behalf of Harris County
   and other local law enforcement agencies
   that have access to Harris County’s
   computer?

This question relates to the agreement executed by the
JIMS board with the DPS described at the fore of this

(Footnote Continued)

computer system solely for the purpose of receiving and
distributing criminal history information and information
from the TLETS and NCIC networks that is accessible only by
the law enforcement agencies entitled to participate in the
networks. The efficacy of a particular proposal, however,
is a matter for the discretion of the commissioners court
and is beyond the province of this office to decide.

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Honorable Mike Driscoll - Page 16 (JM-1224)

opinion. Assuming the DPS acted within its authority in
selecting the Harris County computer as the county’s link
with the TLETS system, we think the commissioners court had
the implied authority to execute the agreement in question.
See generally, 35 D. Brooks, County and Special District Law
§ 5.13 (Texas Practice 1989). We also think the JIMS board
was authorized to execute the agreement on behalf of the
commissioners court, assuming the board was appointed its
agent for that purpose pursuant to section 262.001(a) (3) of

the Local Government Code. See generally, JZ son-Foxworth
Lumber Co. v. Hutchinson County, 88 S.W. 412 (Tex. Civ. App.

1905, no writ).

8. May the county enter into agreements with
   public and non-public users for dial-up,
   direct computer access to records con-
   tained in the county’s computer without
   the consent of the ‘custodian/s’ of the
   original paper or microfilm/microfiche of
   said records?

9. If the answer to question 8 is yes, is
   the ‘custodian’ responsible and liable
   for fees which may be due for such ser-
   vices? Who is liable if the fees are not
   collected for access to and/or copies of
   such records?

These questions are in reference to a program
authorized by the commissioners court under which private
parties, typically law firms, are allowed direct access to
the county computer. The firms are granted access to
information maintained by the district clerk on civil and
family law cases in the district courts. Access to criminal
and juvenile case information is not authorized. The
private users receive access essentially on a_ subscription
basis, paying the county fees for the training of the users’
employees, the assignment of sign-on codes; and the amount
of time logged on the county system. The users supply their
own equipment and dedicated telephone lines.

You note the apparent absence of law expressly author-
izing the program you inquire about. In addition "dial-up"

8. Sections 51.801 through 51.807 of the Government
   Code authorize and govern the electronic filing of certain
   (Footnote Continued)

p. 6500

Honorable Mike Driscoll - Page 17 (JM-1224)

systems are particularly vulnerable to entry and
manipulation by computer hackers and require additional

security controls. See Agranoff, Curb on Technology:

Liability for Failure to Protect Computerized Data Against
Unauthorized Access, 5 Santa Clara Computer & High
Technology Law Journal at 263, 280-86 (1989).

We have previously determined that elected county,
district, and precinct officers, rather than the commis-
sioners court or the JIMS department, are given the duty to
manage and control the information received and generated by
their offices and stored on computer. In the absence of
statutory authority, the commissioners court is not, in our
opinion, authorized to grant members of the public access to
the computerized records of elective county, district, or
precinct offices.? In light of our answer to your eighth
question, it is unnecessary to answer your final question.

SUMMARY

Elected county, district, and precinct
officers in Harris County are charged by
statute with the control, management, and
preservation of information created or
received by their offices pursuant to law or
in the transaction of public business,
including information that is stored in the
Harris County computer. V.T.C.S. art.
6252-17a; Local Gov’t Code §§ 203.002,
203.005, 205.002. Neither the commissioners
court nor an agency created by it to manage
the county’s computer system may deprive

(Footnote Continued)

documents in the office of the district clerk, but we are
unaware of any law that authorizes the electronic retrieval
by private persons of information contained in documents
filed with the district clerk.

9. You suggest that "dial-up" access to the records of
   county offices may be permissible if consent is given by the
   county officers whose records are affected and provided no
   confidential information is made available to the
   subscribers. It is unnecessary to decide this issue at this
   time, since your question refers to the "county" (which we
   interpret to mean the commissioners court) and the facts you
   stipulate refer to actions taken by the commissioners court
   rather than a specific county officer.

p. 6501

Honorable Mike Driscoll - Page 18 (JM-1224)

elected county, district, and precinct
officers of such statutory authority.
Elected county officers may delegate certain
of these statutory duties to the office
created by the commissioners court to manage
the records of nonelective county offices.
Local Gov’t Code § 203.005(g).

Neither the commissioners court nor the
agency created by it to manage the county
computer system is generally authorized to
enforce state or federal laws concerning the
dissemination of criminal history informa-
tion. The commissioners court has the
implied authority to contract on behalf of
the county with the Department of Public
Safety to receive access to the Texas Law
Enforcement Telecommunications System. The
commissioners court may not authorize private

users to obtain "dial-up"

records of elected county,

precinct officers that are
county computer system.

access to the
district, or
stored on the

Very truly yours,

JIM MATTOX

Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General

p. 6502