Can a Texas county clerk spend records management and preservation fees on a project that includes the district clerk's records?

Plain-English summary

When you file a document with a Texas county clerk, the clerk can charge a small "records management and preservation fee" (up to $10) under Local Government Code section 118.0216. McLennan County had a dispute among its officials: can the county clerk spend those fees on a records project that also covers the district clerk's records, or are the fees locked to the county clerk's own office? District Attorney Josh Tetens asked the AG to clarify, noting that a different fee (the records archive fee in section 118.025(e)) is expressly limited to "the preservation and restoration of the county clerk's records," while section 118.0216 does not use that exact limiting language.

The AG concluded the section 118.0216 fee can be used only for documents filed and recorded with the county clerk. The reasoning starts with the text. Subsection 118.0216(a) says the 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." The words "for" (purpose) and "after . . . filing and recording . . . in the office of the clerk" tie the fee to services that follow a filing with the county clerk's office. Subsection 118.0216(d) adds that the funds may be used "only . . . [for] specific records management and preservation." Together, the two subsections limit the fee to county-clerk documents. The absence of the same explicit "county clerk's records" phrasing used in the archive-fee statute does not matter, because section 118.0216's own text, history, and context already supply that limit.

The AG backed this with statutory history (the fee has been tied to county-clerk filings since its 1991 enactment) and the Local Government Records Act, under which "[e]ach elected county officer is the records management officer for the records of the officer's office," and the county clerk controls record-keeping and preservation in the county clerk's office.

But the AG did not stop at a flat no. The clerk can still participate in a joint records project with the district clerk's office, as long as the county clerk's fee-based contribution reflects only its pro rata share of the management and preservation of county-clerk records. And where the same document is dual-filed in both offices, the county-clerk copy is still "filed and recorded . . . in the office of the [county] clerk," so the fee can be used for that document even though an identical copy sits in the district clerk's office.

What this means for you

If you are a county clerk

Based on this opinion, you may spend section 118.0216 records management and preservation fees only on documents filed and recorded in your office. You cannot use them for the district clerk's separate records, but you may contribute your pro rata share of those fees to a joint project covering county-clerk records.

If you are a district clerk

The opinion concludes the county clerk's 118.0216 fees cannot fund management and preservation of documents filed only with your office. A combined project is still possible if each office's contribution is limited to its own records, with the county clerk paying only for the county-clerk share.

If you are a county auditor or budget officer

The opinion draws a line between the section 118.0216 records management and preservation fee (county-clerk documents only) and the section 118.025(e) records archive fee. It also notes the Local Government Records Act requires isolating the account and fund tied to the 118.0216 fee.

If you are weighing a joint records project

The opinion permits it. The key is allocation: the county clerk's fee-funded share must reflect its pro rata portion of the work, and dual-filed documents (same document in both offices) remain eligible because a county-clerk copy is still filed and recorded with the county clerk.

Common questions

Q: Can a county clerk use records management fees on the district clerk's records?
A: No. The AG concluded section 118.0216 fees may be used only for documents filed and recorded with the county clerk, not for documents filed only with the district clerk.

Q: Does the statute have to say "county clerk's records" to be limited that way?
A: No. The AG explained the limit is already in the text, history, and context of section 118.0216, so it does not need the same explicit phrasing used for the separate archive fee.

Q: Can the county clerk join a combined records project with the district clerk?
A: Yes, as long as the county clerk's fee-based contribution is limited to its pro rata share of managing and preserving county-clerk records.

Q: What about a document filed in both offices?
A: The AG concluded that if the same document is filed and recorded with both, the county-clerk copy is still "filed and recorded . . . in the office of the [county] clerk," so the fee may be used for that document.

Q: How much is the fee?
A: Up to $10, set and collected by the county clerk under Local Government Code subsection 118.011(b)(2), cross-referencing section 118.0216.

Background and statutory framework

Chapter 118 of the Local Government Code governs county-officer fees (Tex. Loc. Gov't Code §§ 118.001–.801), including the "Records Management and Preservation Fee" of not more than $10 the county clerk may collect (§ 118.011(b)(2)). Subsection 118.0216(a) ties the 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 subsection 118.0216(d) restricts the use to "only . . . specific records management and preservation."

Reading the statute for legislative intent as best revealed in its language and harmonizing each provision (Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 847 (Tex. 2024); In re Off. of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013); Pub. Util. Comm'n of Tex. v. Luminant Energy Co., 691 S.W.3d 448, 460 (Tex. 2024); Tex. Gov't Code § 311.011(a)), the AG concluded subsections (a) and (d) work together to limit the fee to county-clerk documents. Statutory history confirms the limit has existed since the 1991 enactment (Brown v. City of Houston, 660 S.W.3d 749, 755 (Tex. 2023)), and the Local Government Records Act provides that "[e]ach elected county officer is the records management officer for the records of the officer's office" (Tex. Loc. Gov't Code § 203.001; Tex. Const. art. V, § 20), with the county clerk controlling record-keeping and preservation in the county clerk's office (Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.—El Paso 1993, no writ)). The Legislature is presumed to have acted with knowledge of existing law (Taylor v. Tolbert, 644 S.W.3d 637, 650 (Tex. 2022)). The difference in wording from the section 118.025(e) archive fee is immaterial because section 118.0216's own text already supplies the limit (Tex. Gov't Code § 311.021(2)). Finally, the AG concluded the county clerk may contribute a pro rata share of the fee to a joint project covering county-clerk records, and that dual-filed documents remain eligible because a county-clerk copy is still filed and recorded with the county clerk.

Citations and references

Statutes:
- Tex. Loc. Gov't Code § 118.0216 — records management and preservation fee
- Tex. Loc. Gov't Code § 203.001 — elected officer as records management officer

Key cases:
- Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844 (Tex. 2024) — ascertain and give effect to legislative intent
- Hooten v. Enriquez, 863 S.W.2d 522 (Tex. App.—El Paso 1993, no writ) — county clerk controls record-keeping in the county clerk's office

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0496
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2025/kp-0496.pdf

Original opinion text

August 29, 2025

The Honorable Josh Tetens
McLennan County District Attorney
219 North 6th Street, Suite 200
Waco, Texas 76701

Opinion No. KP-0496
Re: Use of funds collected under Local Government Code section 118.0216 (RQ-0549-KP)

Dear Mr. Tetens:

You ask whether section 118.0216 of the Local Government Code permits a fee collected by the county clerk for records management and preservation services to be used for a "management and preservation project that includes records of the McLennan County District Clerk." But you highlight "disagreement between county officials" as to whether the Local Government Code requires that these fees "only be used [for] records within the County Clerk's Office." Request Letter at 2. We understand that this disagreement results from statutory language governing a separate fee for the county clerk's archive, which "may be expended only for the preservation and restoration of the county clerk's records." Id. (quoting TEX. LOC. GOV'T CODE § 118.025(e)). Ultimately, you seek clarification on "the proper use of the fees collected" under section 118.0216. Id. at 3.

Records management and preservation fees can only be used for specified services related to the underlying filings.

The principal aim of statutory interpretation is to "ascertain and give effect to the Legislature's intent." Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 847 (Tex. 2024) (quoting Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex. 2021)). Of course, that "intent is best revealed in legislative language." In re Off. of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013). This requires that we "give meaning to every word in a statute, harmonizing each provision, while consider[ing] the context and framework of the entire statute." Pub. Util. Comm'n of Tex. v. Luminant Energy Co., 691 S.W.3d 448, 460 (Tex. 2024) (alteration in original) (footnote and citations omitted); accord TEX. GOV'T CODE § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."); see also, e.g., Brown v. City of Houston, 660 S.W.3d 749, 755 (Tex. 2023) (explaining statutory history is a "part of the context" (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 246 (2012))).

We thus begin with the statutory text. Chapter 118 of the Local Government Code generally governs fees charged by county officers. TEX. LOC. GOV'T CODE §§ 118.001–.801. Among those fees is the "Records Management and Preservation Fee," which may be "set and collect[ed] . . . from any person" by the county clerk in an amount of "not more than $10." Id. § 118.011(b)(2) (cross referencing section 118.0216). The chapter goes on to explain that this 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) (emphases added). The term "for" is a function word used to indicate purpose. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 454 (10th ed. 1993). The term "after," on the other hand, is used as a conjunction that joins two phrases and means "subsequent to the time when." Id. at 21. Taken together, the statute plainly indicates that the records management and preservation fee speaks to the associated services that follow the filing and recording of records with a county clerk's office. See TEX. LOC. GOV'T CODE § 118.0216(a). Subsection 118.0216(a) therefore imposes a chronological constraint on services that can underlie the fee, which necessarily excludes the administrative processes related to filings with a district court clerk. Put simply, subsection 118.0216(a) limits the fee to services performed by the county clerk.

Subsection 118.0216(d) further articulates the scope of records management and preservation services the county clerk may perform with the fees collected, that is, "only . . . specific records management and preservation." Id. § 118.0216(d). Though you emphasize that the text of subsection 118.0216(d) does not expressly limit the fee to documents filed and recorded with the county clerk, Request Letter at 2–3, this follows from the fact that subsection 118.0216(a) already provides this limitation. The two provisions work together in harmony as written: Whereas the former identifies the services that can validly underlie the fee, again, "records management and preservation services performed by the county clerk after the filing and recording of a document in . . . the office of the clerk," TEX. LOC. GOV'T CODE § 118.0216(a) (emphasis added), the latter expressly restricts the use of that funding to "only . . . specific records management and preservation," id. § 118.0216(d). The plain text of section 118.0216 therefore indicates the records management and preservation fee is limited to documents filed and recorded in the office of the county clerk.

Statutory history confirms the same. Section 118.0216 was originally enacted as a single paragraph, which contained the provisions now included in separate subsections:

The fee for "Records Management and Preservation" under Section 118.011 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. The fee must be paid at the time of the filing of the document. The fee may be used only to provide funds for specific records preservation and automation projects.

Act of May 26, 1991, 72d Leg., R.S., ch. 587, § 2, 1991 Tex. Gen. Laws 2104, 2105 (current version at TEX. LOC. GOV'T CODE § 118.0216). Later amendments separated these provisions into subparts and implemented minor changes to the language in subsection (d). See generally Act of May 21, 2011, 82d Leg., R.S., ch. 330, § 1, 2011 Tex. Gen. Laws 948, 948; Act of May 26, 2009, 81st Leg., R.S., ch. 540, § 1, 2009 Tex. Gen. Laws 1243, 1243–44; Act of May 22, 2001, 77th Leg., R.S., ch. 794, § 3, 2001 Tex. Gen. Laws 1542, 1542–43. This serves only to highlight the fact that, from inception to present, the records-management and preservation fee has derived from and related to county-clerk filings alone.

Statutory context counsels no differently. The Local Government Records Act ("LGRA") is a comprehensive consolidation and reorganization of local records laws "establish[ing] . . . uniform standards and procedures for the maintenance, preservation, microfilming, or other disposition of local government records." TEX. LOC. GOV'T CODE § 201.002(4). Not only does the LGRA direct the commissioners court to isolate accounts and funding related to the section 118.0216 fee, id. §§ 118.0216(c) (discussing account), 203.003(5) (discussing fund), it makes clear that "[e]ach elected county officer is the records management officer for the records of the officer's office," id. § 203.001 (emphasis added); see also TEX. CONST. art. V, § 20 (providing "[t]here shall be elected for each county[] . . . a County Clerk"). The LGRA additionally provides that "each elected county officer shall adopt a written plan establishing an active and continuing program for the efficient and economical management of the records of the elective office of which the elected officer is custodian." TEX. LOC. GOV'T CODE § 203.005(a) (emphasis added). Courts have acknowledged that the LGRA, among other provisions, shows the Legislature's "clear" intent to vest the county clerk with authority to determine "what constitutes record keeping, preservation, and automation in the county clerk's office." Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex. App.—El Paso 1993, no writ) (emphasis added) (construing predecessor statute). We must presume the Legislature acted "with complete knowledge of . . . and with reference to" existing law, Taylor v. Tolbert, 644 S.W.3d 637, 650 (Tex. 2022), especially when section 118.0216 was enacted merely two years later, Act of May 29, 1989, 71st Leg., R.S., ch. 1248, § 1, 1989 Tex. Gen. Laws 4996, 4997–5013 (codified at TEX. LOC. GOV'T CODE §§ 201.001–205.010).

[Footnote: Elected county officers may instead participate in a county records program as established by Chapter 203, subchapter B, and authorize the records management officer of that program "to act as the records management officer for the records of the elective office." TEX. LOC. GOV'T CODE § 203.005(g); see also id. §§ 203.021–.026. You do not indicate that any such delegation has occurred so we do not consider what impact, if any, this would have on the question posed.]

[Footnote: We note that some counties with a population of less than 8,000 elect a single clerk to perform the duties of the district and county clerk. TEX. CONST. art. V, § 20; TEX. GOV'T CODE § 51.501(a). You do not suggest this is the case for McLennan County, and we do not address that topic further.]

On this backdrop, it is of no moment that the Local Government Code uses different language to constrain the use of "records archive" fees. You correctly highlight that this fee "may be expended only for the preservation and restoration of the county clerk's records archive." Request Letter at 2–3 (quoting TEX. LOC. GOV'T CODE § 118.025(e)). Likewise, we acknowledge that the statute governing records management and preservation does not use identical language. Id. (quoting TEX. LOC. GOV'T CODE § 118.0216). But this follows from the fact that this constraint is already resident in the plain text, statutory history, and context of section 118.0216 itself. The Legislature is presumed to use language effectively, TEX. GOV'T CODE § 311.021(2); see also, e.g., READING LAW, supra, at 174 (discussing the surplusage canon), and there is no need to constrain what has been so limited. The language of section 118.0216 therefore controls.

The county clerk's office can use section 118.0216 fees for a joint project with the district clerk's office so long as the county clerk's fee-based contribution reflects its pro rata share of management and preservation.

We note that your request does not clearly indicate whether the records management and preservation project involves certain documents that are filed and recorded in both the county and district clerks' offices or, alternatively, a collective group that includes documents separately filed and recorded in either office. Request Letter at 1–3. But a project involving dual filings, meaning the same document is filed and recorded with both offices, would not change that one copy is "fil[ed] and record[ed] . . . in the records of the office of the [county] clerk." TEX. LOC. GOV'T CODE § 118.0216(a). As such, the section 118.0216 fee may be used "for specific records management and preservation" with respect to the document. Id. § 118.0216(d). That an identical copy is also filed elsewhere does not render it any less subject to "records management and preservation" under section 118.0216.

As for a project involving separate documents filed and recorded with each office, on the other hand, we reiterate that the section 118.0216 fee is triggered "after the filing and recording of a document in the records of the office of the [county] clerk" and thus pertains only to those documents. Id. § 118.0216(a). Suffice it to say these fees may not be used "for specific records management and preservation" of documents that are not filed and recorded with the county clerk. Id. § 118.0216(d). Importantly, however, this would not prevent the county clerk from using such fees for a joint management and preservation project where the county clerk's contribution is limited to its pro rata share of those records. See id. § 118.0216.

S U M M A R Y

The records management and preservation fee collected by a county clerk pursuant to Local Government Code subsection 118.011(b)(2) may be used only for documents filed and recorded with the county clerk, in accordance with subsection 118.0216(a). This would not, however, prevent the county clerk's office from contributing a pro rata share of those fees to a joint records management and preservation project with the district clerk's office.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER, First Assistant Attorney General
LESLEY FRENCH, Chief of Staff
D. FORREST BRUMBAUGH, Deputy Attorney General for Legal Counsel
JOSHUA C. FIVESON, Chair, Opinion Committee