. .
The Attorney General of Texas
December 31. 1982
MARKWHITE
AttorneyGeneral
Honorable Henry Wade Opinion No. MIJ-574
Supreme Court Building Dallas District Attorney
P. 0. BOX 12548
601 Elm Street Re: Procedure for tasting
Austin. TX. 78711. 2548
5121475.2501 Dallas, Texas 75202 microfilms of records filed
Telex 910/874-1367 with county clerks, and
Telecopier 5121475-0266 related matters
1607 Main St., Suite 1400
Dear Mr. Wade:
Dallas, TX. 75201-4709
2141742-8944 You have asked several questions about the construction to be
given article 1941(a), V.T.C.S., following its amendment in 1979.
First, you ask if a county clerk can make microfilm records under
4824 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
section 6, subsections (a). (b) and (c) of the statute without
9151533-3484 necessarily reproducing from the microfilm (and maintaining for public
use) a set of paper records.
1220 Dallas Ave.. Suite 202
Before 1979, the law imposed a special duty upon county clerks
Houston. TX. 77002-6986
713/650-0666
who microfilmed original records that were not to be retained in the
clerk's files. Clerks were under a duty to test the accuracy and
clarity of the microfilm image by reproducing from the microfilm a
806 Broadway, Suite 312 paper copy of the record filmed. After the reproduced microfilmed
Lubbock, TX. 79401.3479
version of an original document had been inspected and checked in that
8061747.5236
manner and found satisfactory, the law made it the duty of the clerk
to return the original to the party who filed it. The statute then
4309 N. Tenth. Suite S (as now) specified that records transferred to the state librarian
McAllen, TX. 78501-1665 pursuant to state law "need not be reproduced." See Acts 1977. 65th
5121682-4547 Leg., ch. 463, 99, at 1201.
200 Main Plaza, Suite 400 In 1979, pertinent parts of the statute were amended so that it
San Antonio, TX. 78205.2797 now reads:
5121225-4191
Sec. 6. (a) Each county clerk and county
An Equal Opportunity/ recorder and clerk of county courts, whenever the
Affirmative Action Employer original paper record is not retained in the files
of the county clerk, shall inspect and check each
filmed image on each roll of microfilm, or each
p. 2120
Honorable Henry Wade - Page 2 (MW-574)
each roll of microfilm, or each filmed image of
the discrete group of filmed images, for the
purpose of inspecting and checking each filmed
image for accuracy and clarity. Should a
microfilm image be defective in any respect, the
original instrument of writing, legal document,
paper or record, from which said defective filmed
image was made, shall be remicrofilmed on a
subsequent roll of microfilm, or on a subsequent
discrete image or images of a subsequent discrete
group of individual Images, to obtain acceptable
images on microfilm. A record need not be
reproduced if it is transferred to the custody of
the state librarian pursuant to state law.
(b) Notwithstanding anything to the contrary
provided by any other statute or statutes, when an
instrument of writing, legal document, paper, or
record has been microfilmed and said microfilm has
been proven satisfactory by inspecting and
checking as provided herein, said clerk is hereby
authorized to, and shall, return each such
instrument of writing, legal document, paper or
record, excepting those involved in or relating to
court matters and proceedings, to the party or
parties who filed it. (Emphasis added).
The new statutory language makes the intent clear, we think, that
county clerks who microfilm records no longer need reproduce (or keep)
a set of paper records from the microfilm in order to test the
accuracy and clarity of the filmed image. The legislative history of
Senate Bill No. 316, which effected the changes, confirms that
conclusion. See Acts 1979, 66th Leg., ch. 254, at 538; Bill Analysis
to S.B. NT 316, prepared for the Senate Committee on
Intergovernmental Relations, filed in Bill File to S.B. No. 316.
Legislative Reference Library.
The sentence retained in subsection (a) that makes reproduction
of a record unnecessary if it is transferred to the custody of the
state librarian does not compel a different view. In its present
context, we believe it is intended as a guide to those county clerks
who choose to reproduce microfilmed images onto paper records; it does
not mean that microfilmed records must be reproduced on paper if they
are not transferred to the state archives. The intention of the
legislature is the dominant consideration in construing a statute.
Calvert v. British-American Oil Producing Company, 397 S.W.2d 839
(Tex. 1965). In our opinion, the legislature clearly intended in
subsections (a) and (b) to make optional with each county clerk the
p. 2121
.
Honorable Henry Wade - Page 3 (MW-574)
reproduction of records onto paper from microfilm for purposes of
testing the microfilm image.
Subsection (c) of section 6 deals with records relating to court
matters and proceedings. It reads:
(c) Original instruments of writing, original
legal documents, original papers and original
records, which have been filed relating to court
matters and proceedings and which have been
recorded on microfilm records, shall be retained
in the files of the docket to which they relate
until a written order of the court closes such
docket, after which all of the records in such
docket shall be microfilmed in time sequence to
provide all of such records of a docket in an
unbroken continuous sequence on one roll of
microfilm, or in an unbroken continuous sequence
of discrete images in a group of discrete images.
This subsection contemplates that original documents relating to court
matters and proceedings will be retained by the clerk until the court
closes the docket to which they relate, even though they have been
microfilmed. After the docket is closed, it requires that they be
microfilmed (again) in a manner to provide -- on microfilm -- a
continuous sequence of the records pertaining to the closed docket.
It does not require the clerk to employ the microfilm-to-paper testing
procedure mandated by the statute previous to its amendment.
You also ask whether any paper records that are reproduced by
clerks from microfilm can be destroyed before the expiration of five
years.
There is no requirement in the present statute that clerks retain
we= records that they may have reproduced from microfilm for
purposes of inspection and checking the microfilmed image. Subsection
(d) of section 6 does specify that the commissioners court of a county
may order the disposal of the originalnpaper records from which the
microfilm records were made only after microfilm film prints" from an
"original negative microfilm" meeting certain standards are certified
as having been satisfactorily used by the public for five years or
more. But, in our opinion, the term "microfilm film prints" includes
copies of microfilm produced on film as well as on paper. See
National Center for State Courts, Microfilm and the Courts: Guide for
Court Managers 13, 14, 52 (1976). Moreover, the requirement does not
mean that the clerk must have reproduced paper records from the
microfilm and retained them for public use. It means only that prints
of the records, when requested by the public, must have been
satisfactorily reproduced from the original microfilm negative.
p. 2122
Honorable Henry Wade - Page 4 (NW-574)
Inasmuch as subsection (b) of section 6 plainly contemplates the
return of original documents (except those involved in or relating to
court matters and proceedings) to the person who filed them as soon as
the inspection and checking required by subsection (a) have been
satisfactorily completed, the only "filed" records to which subsection
(d) can have application are instruments of writing, legal documents,
papers or records relating to court matters or proceedings [k,
those addressed by subsection (c)l. One of your questions has to do
with when a county clerk may dispose of such original court records.
We answer that the clerk may dispose of them only after the
commissioners court has entered an order directing their disposition,
such order being conditioned, among other things, upon certification
by the clerk that microfilm film prints of the original records have
been satisfactorily used by the public for at least five years.
Your remaining question concerns the meaning of the term
"microfilm film prints," a matter we have already discussed. S.Sl?
generally H.G. Jones, Local Government Records 64 et seq. (1980).
SUMMARY
County clerks are not required to reproduce a
set of paper records from microfilms of original
records in order to inspect and check the accuracy
and clarity of the microfilm image, but may do so.
If such paper prints are made, there is no
requirement that they be kept. Original court
records filed with the clerk cannot be disposed of
except on certification, inter alla, that
microfilm prints of the original records have been
satisfactorily used by the public for at least
five years.
Azs
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
p. 2123
. .
Honorable Henry Wade - Page 5 (MW-574)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Kate Conroy
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood
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