The Honorable Martin D. Eichelberger Opinion No. H- 115
District Attorney’
McLennan County Re: Applicability of House
3rd Floor Courthouse Annex Bill 6 (Acts 1973, 63rd
Waco, Texas Leg., ch. 424, p. 1112,
Article 6252-17a, V.T.C.S. )
to public records ifi custody
Dear Mr. Eichelberger: of the county clerk.
Your letter requesting our opinion concerning Article 6252-17a,
V. T. C. S., poses two questions having to do with records in the custody
of the county cletik.
We have recently issued Attorney General Opinion H-90 (1973) in
which we generally outlined the purposes and provisions of the Act and its
applicability to certain specific types of information.
Your first question quotes $ 3(a)(15) of the Act and states that “This
apparently does not include the birth and death records of County Clerks
and those of local registrars. ” You ask:
“We need to know exactly what the County Clerk
should not do since the quoted exception does not men-
tion other governmental agencies nor local registrars. ‘I
Section 3(a), after providing in general terms, that most governmental
records are public information available to the public, lists a number of
exceptions one of which is, found as subsection (15): “birth and death records
maintained by the Bureau df Vital Statistics in the State of Texas. ‘1
As we construe this exception, the language “maintained by the Bureau
of Vital Statistics in the ,State of Texas” is descriptive of the records and not
a limitation of the exception. That is to say, the birth and death records which
p,. 551
The Honorable Martin D. Eichelberger, page 2 (H-115)
are.excepted from disclosure under the Act are birth and death records
of the type maintained by the Bureau of Vital Statistics.
To hold otherwise would present the anomalous situation that the
State Registrar of Vital Statistics could not produce a record but that a
local registrar or a county clerk could. We cannot attribute to the Legis-
lature an intention to achieve such an improbable result.
We therefore answer your first question that, to the extent that he
maintains records of birth and death of the type maintained by the State
Bureau of Vital Statistics, the county clerk is directed by law not to disclose
them to unauthorized persons on penalty of the sanctions of tiouse Bill 6. i
We call to your attention other provisions of subsection 3(a)(l) except-
ing from disclosure “information deemed confidential by law, either Consti-
tutional, statutory, or by judicial decision. ” A record, not excepted by
$ 3(a)(15) may fall within this category. See Attorney General Opinion H-90
(1973).
Your second question is based upon language contained in $ 5 of House
Bill 6 which provides that: “The chief administrative officer of the govern-
mental body lshall be the custodian of public records. . . . ‘I You state that,
in the instance of a county, this would be the county judge and the provision
would be in direct conflict with Articles 1941 et seq. and 6591 et seq. ,V. T. G S,
which place direct responsibility for the care, custody and control of the
records in his office upon the County Clerk. You ask o&r construction of the
quoted phrase with reference to the duties of the County Clerk.
Section 18 of Article 5 of the Constitution, after ,providing for the
election of county commissioners, states:
II . . . The County Commissioners so chosen,
with the County Judge as,presiding officer, shall compose
the County Commissioners Court which shall exercise
such powers and jurisdiction over all county business, as
is conferred by this Constitution and the,laws of the State,
or as may be hereafter prescribed. ” (emphasis added)
p. 552
The Honorable Martin D. Eichelberger, page 3 (H-115)
Article 5, $ 20, calls for a county clerk “whose duties, perquisites
and fees of office shall be prescribed by the Legislature. . . .”
The statutes governing the powers of the commissioners courts are
found in Title 44, Vernon’s Texas Civil Statutes, commencing with Article
2351. They are plenary. ‘A cou&clerk also has broad powers found in
Chapter 2 of Title 41 of Vernon’s Texas Civil Statutes. They are to be the
recorders of their respective counties to record all instruments required
or permitted by law to be recorded. Article 1941, V. T. C,. S., and Article
6591, et seq., V. T. C. S. They are to keep certain records of their courts.
Articles 1942 and 1943, V. T. C. S.
By’ Constitution and statute the government of the county is confided
to the commissioners court of which the county judge is the,presiding officer.
Section 2(l) of House Bill 6 definea the “governmental body” of a county as
being .its commissioners court. The county clerk serves the commissioners
court. It has been said that his duties are ministerial. Attorney General
Opinion M-615 (1970).
We would add that, while we see no conflict with other laws, should
there be one, the provisions of House Bill 6, as the latest expression of
the Legislature, would have to control. AlliedFlnance Company of Bay Citv v.&lkner
397 S. W. 2d 846 (Tex. 1965); State v. Ea,sley, 404 S. W. 2d 296 (Tex. 1966).
Other county officers and departments besides the County Clerk have
records which are as much subject to disclosure under House Bill 6 as would
be those within the office of the county clerk.
It is apparent that $ 5 of House Bill 6, in making the chief administrative
officer of the governmental body the custodian of public records, intended by
that provision to focus the responsibility for the success of the Act upon those
who have it within their power to make the Act viable. It is obvious that it
was not the intent that the chief administrative officer, in this case, the county
judge, actually, physically have custody as would the county clerk. Thus, for
example, in Subsection 5(b) the statute refers to the custodian’s “agent who
controls the use of public records. ”
p. 553
The Honorable Martin D. Eichelberger, page 4 (H-115)
As we interpret the Act, the county clerk retains physical care,
custody and control of the records which, by statute, he is required to
maintain. The responsibility for seeing that county records, including
those maintained by the county clerk as well as those maintained by other
county officers, are disclosed when r.equired by House Bill 6. is placed
bn the county judge - the chief administrative officer of the governmental
body. We ‘see no conflict between these provisions.
SUMMARY
Birth and death records required by Article 4477
of the Revised Civil Statutes, whether physically in the
State Bureau of Vital Statistics, in a local registrar’s
office, or in the office of a county clerk, are not subject
to production or disclosure under the provisions of House
Bill 6, 63rd Legislature (Article 6252-17a, V. T. C. S. )’
The provisions of the Act, imposing’upon the county
judge, as the chief administrative officer of the county as
a governmental body, the responsibility for enforcement
of House Bill’6 do not ccmflict with the statutory duties of
the county clerk as the custodian of the records of his
office.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 554