THE ATTORB~EY GENERAL
OF TEXAS
September 17, 1990
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
/" 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.
r
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 and the 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 driver'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 crim-
inal justice information?
2. Are such computer records part of the
district clerk*s tofficial 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 Houston Chronicle Publish-
ino Co. v. The Honorable Charles Hearn. District Judae,
263rd District Court. Harris Countv. 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 and a 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.a 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 disposition arising therefrom, sentenc-
iw , 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.520.1.
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. 55 20.20 - 20.25.
These restrictions do not apply to criminal history
information contained in court records of public judicial
proceedings. Id. 5 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. a 5 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.
5 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 Publishinb Co. v. Citv of Houston 531
S.W.2d 177 (Tex. Civ. ADD. - Houston rl4th Dist.1 i975).
writ ref'd n.r.e. oer curiam 536 S.W.22 559 (Tex: 19763;
and summarized in Open Record; 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. 58 20.30
- 20.38. Dissemination of criminal history information
contained in any such system is authorized in four
instances. See id. 5 20.33. In addition, the subjects of
criminal historyxformation 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. 5 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)
P
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, 5 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 Crim.
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-
ed to maintain and report to the TDCJ and the DPS specified
information relating to criminal cases, with certain excep-
tions. See L 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. & 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. a
art. 60.03(b). Chapter 60 thus requires an examination of
other state and federal laws governing disclosure of
criminal history information. See aenerally 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 B1custody** 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.a., the county sheriff
or 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 computerized
recordkeeping system for the use of coun:y or district
officers. See. e.a., 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 5s 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 C 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
5 205.001(l) (definition of "electronic storage"). I'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 medium,
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 bv a local
aovernment or anv of its officers or
emolovees vursuant to law, includina an
ordinance, or in the tranSaCtiOn Of DUbliC
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. 5 201.003(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, Yecords 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. Seeid.
55 201.003(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. S§ 203.002, 203.023. The 18custodian1* 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 -- h, 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. 55 203.021, 203.026. Elected county office& 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. 5 203.002.
The elected county officer is given discretion to adopt
specific records management procedures and techniques, so I,
long as they are consistent with regulations promulgated by
P. 6494
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Honorable Mike Driscoll - Page 11 (JR-1224)
the State Library and Archives Commission. See+.
55 201.003(l), 203.002, 203.005(b). The commission
required to adopt standards and issue regulations for tFZ
microfilming of local government records and the electronic
storage of local government record data of permanent value.4
Id. S§ 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. 5 205.003.
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 --
l.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
F 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 program. & Applied to
Harris County, these provisions mean elected county officers
4. A l*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. 5 203.003 (commissioners court
shall "promote," l'support,@' and "facilitate" the efficient
and 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 recordsl' of the office. V.T.C.S. art.
6252-17a, 5 5(a). The officer for public records is
responsible under section 5 for ensuring the accessibility,
protection, and preservation of vublic records, includina
records stored on computer. See: e.a,, Attorney Generai
Opinion JR-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. &8 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 llcounty" officers as records management
officers for their respective offices, omitting any
reference to elected district and precinct officers. As we
noted earlier, however, distri,ct and precinct offices of a
county are treated as part of a county under the act. Id.
5 201.003(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. &g 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.a., 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-
P 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
55 203.002, 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. Ed. 5 2o3.oo5(g).6
6. It should be notsd~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)
P. 6497
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 ariminal 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) 1
P. 6498
Honorable Mike Driscoll - Page 15 (JM-1224)
6. lfhat liability may the JIMS exeautive
board incur if information which is con-
tained in a computer system owned by Har-
ris county and whiah is used jointly by
the Harris County Sheriff, the Harris
County District Clerk, the Adult
Probation Department, the Harris County
Data Processing Department, and JIM8 and
other county departments for the
functions of said respective departments
and offices and JIM8 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 5 45.201.
7. Does the JIM8 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 executedby 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 TLHTS 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.
P. 6499
,
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 aenerally, 35 D. Brooks, Countv and Soecial District Law
5 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. wsenerallv Jackson -Foxworth
Lumber Co . v. Hutchinson County, 88 S.W. ;12 (Tex. Civ. App.
1905, no writ).
8. May the county enter into agreements with
public and non-public user8 for dial-up,
direct computer access to records con-
tained in the county's computer without
the ooneent of the \custodian/s* of the
original paper or microfilm/microfiche of
said records?
9. If the answer to question 8 is yea, 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 ukersl
employees, the assignment of sign-on codes;8nd 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.8 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. a Agranoff, Curb on Technoloav:
Liabilitv for Failure to Protect Comvuterized Data Aaainst
Unauthorized Access 5 Santa Clara Computer & High
Technology Law Journ; 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.9 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 Govtt Code g 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" access to the
records of elected county, district, or
precinct officers that are stored on the
county computer system.
Very truly yo
3
Jy M 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