The Attorney General of Texas
December 21, 1979
MARK WHITE
Attorney General
Honorable Joe Resweber Opinion No. NW-112
Harris County Attorney
1001 Preston, Suite 634 Re: FilIne of a death certificate
Houston, Texas 77002 attached tz an affidavit of heirship
with the county clerk.
Dear Mr. Resweber:
You ask two questions regarding the filing of an affidavit of heirship
with a certified copy of a death certificate attached thereto in the public
record3 of real property of Harris County. You first ask whether the Open
Records Act prevents the county clerk from accepting the death certificate
and making it available to the public.
Section 3(a)(15) exempts from public disclosure “birth and death
records maintained by the Bureau of Vital Statistics in the State of Texas.”
In Attorney General Opinion H-115 (1973) this office CoILStNed the provision
ss applicable to birth and death recor& of the type maintained by the
Bureau of Vital Statistics and thus determined that the Act applied to birth
and death records maintained by the county clerk. Of course, even if the
records are excepted from required disclosure, the custodian is not
prohibited from releas% them. Texas Open Records Act, V.T.C.S. art.
625~Da, S 3(c); Open Recor& Decision No. 177 (1977).
Moreover, although a particular record may be expressly excepted
from disclosure when in the custody of one state agency, the exception does
not apply to the record when a private party voluntarily makes it available
to another public body. In Open Record Decision No. 157 (1977) this office
determined that a college transcript In an e@neer% licensing file held by
the State Board of Registration for Professional Engineers was available to
the public under the Open Records Act. The transcript would have been
excepted from public disclosure pursuant to section 3(a)(l4) of the Act while
in the possession of any “educational Institutions funded wholly, or In part,
by state revenue” However, the ergineei’s transcript held by the Board at
his request was available to the public. We believe the death certificate
offered for filing by a member of the public may be accepted by the clerk
and will be available for public inspection in the clerk’s files.
Section 6600, V.T.C.S., provides In part:
p. 355
Honorable Joe Resweber - Page Two (~1+112)
The county clerk shall give attested copies whenever demanded of
all papers recorded in his office. . . .
The clerk is thus required to give certified copies of the affidavit with attached death
certificate to persons requesting it.
SUMMARY
The Open RecorQ Act does not prevent the county clerk from
accepting for filing in real property records a death certificate
attached to an affidavit of heirship. The clerk is required to give
certified copies of the affidavit with the attached death certificate
to persons who request it.
*a
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney GeneraI
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gam mage
Susan Garrison
Rick Gilpin
William G Reid
p. 356