Untitled Texas Attorney General Opinion

.’ THEATTORNEY GENERAL OF TEXAS WLL WILSON ATTORNEY GENERAL February 2, 1960 Honorable Tom Blackwell Opinion No. WW-793 Cou~ntyAttorney Travis County Re: What original records Austin, Texas In the office of the District Clerk may be destroyed under the provisions of Art:!cle 6574b, Vernon's Civ!l Dear Mr. Elackwell: Statutes. We have received your request for an opinion on the following questions: 1. Do "original public records" as that phrase Is used In Article 6574b, Vernon's Civil Statutes, include filed pleadings, citations, executions, Writs of Injunction, garnishment, attachment, and other such writs, drafts or orders, and any other in- struments that might be filed in a civil case, and indictments, drafts or orders, and all other pleadings or Instruments that might be filed in a criminal case. 2. In what Instances would the clerk be barred from destroying public records "until the time for filing legal proceedings based on any such record shall have elapsed' as provided In Article 6574b, Vernon's Civil Statutes? The Court in State ex rel Kavanaugh v. Henderson, Supervisor of Liquor Control, 169 S.W. 2d 389 (MO. 1943) stated: "Where, by law or regulation, a document is required to be filed in a public office, the document is a 'public record' . . .' Words and Phrases_,Volume 35, page 318, contains the following definition: "Judgment roll, files, papers, and orders in case are 'judicial records', 'public writings', and 'public records' within statutes . . .rr Honorable Tom Blackwell, page 2 (W-793) We again find in Words and Phrases, Volume 3.5,at page 26 of the pocket part: "Defendant's pleadings and papers, which were Involved in civil action and which were in custody of county clerk as ex officio clerk of superior court in which action was pending, were 'public documents' . . .' In view of the above, it Is the opinion of this Department that filed pleadings, citations, executions, writs of injunction, garnishment, attachment, and other such write, drafts or orders, and any other Instruments that might be filed in a civil case, and indictments, drafts or orders, and all other pleadings or instruments that might be filed in a criminal case are original public records within the purview of Article 6574b, Vernon's Civil Statutes. ,' Article 6574b, Vernon's Civil Statutes, provides in part as follows: "Section 1. The Commissioners Court of any county In Texas, or the governing body of any political subdivision of Texas, may, at its discretion, order, authorize and provide for the duplication of all public records by photo- static, photographic, miniature photographic, film microfilm or microphotographic process which correctly and legibly copies and repro- duces, or which forms a medium of copying or reproducing, such public records, when, in the judgment of a Commissioners Court, or of the governing body of any political subdivision of Texas, a necessity exists for the photographic duplication of said public records for the pur- pose of recording, preserving and protecting same, or for the purpose of reducln& space requir- ed for filing, storing and safekeeping of same, or for any similar purpose. II . . . "Sec. 4. Said photographic duplicates of all public records shall be placed in convenient- ly accessible files and provisions shall be made Honorable Tom Blackwell, page 3 (Ww-793) for preserving, safekeeping, using, examining, exhibiting, projecting, and enlarging the same whenever requested during regular office hours. Whenever protographic duplicates of public records are so made, certified and placed, the original public records may be, by order of the Commission- ers Court of the county, or of the governing body of any political subdivision of Texas, destroyed or otherwise disposed of, provided, however, that no original record shall be destroyed or otherwise dis- posed of unless or until the time for filing legal proceedings based on any such record shall have elapsed, and, in no event shall any original nubzic record be destroyed or otfierwlsedisposed ofuhtll said public record Is at least five (5) years old; and provided further, that notice of such proposed destruction or disposition of original public re- cords shall first be given to the State Librarian, and If such records are, in his opinion, needed for the Texas State Library, they shall be trans- ferred thereto in the manner provided in Article 5439, Revised Civil Statutes, 1925. "Sec. 5. Nothing in thls Act shall authorize the destruction or disposition of any deed record, deed of trust record, mechanic's 12en record or any minute book of any Court or any minute book of any political subdivision of Texas. II . . . "Sec. -7. Said photographic duplicates of public records shall be deemed to be an original record for all purposes, including introduction in all Courts or adminlstrative agencies. A transcript, exemplifi- cation, or certified copy thereof shall, for all pur- poses recited herein, be deemed to be a transcript, exemplification or certified copy of the original. II . . . "Sec. 10. The fact that the courthouses in many of the counties of this State are now greatly burden- ed by old a+idvalueless records, which condition is growing more serious all the time; and the fact that the said records are a fire hazard in many courthouses; and the further fact that the space used for keeping such old redords is needed for new material and for other purposes create an emergency. . . .' H.B. 304, Honorable Tom Blackwell, page 4 (W-793) Acts of the 50th Leg., Ch. 58, p. 811. In view of the provisions under Section 1 of Article 6574-b that all public records may be destroyed if properly duplicated as set out in said statute and that, under Section 7, Article 657413, the public records proper- ly duplicated may be considered orig-i.nal public records for all purposes and can be used when needed as the bas:~sof any action which may be maintained it appears that the phrase or provision under Section 4, Article 6574b, "unti~l the time for legal proceedings based on any such recmrd shall have elapsed" has little meaning, and any discussion of th1.ssubject would be of almost infinite range and pure1 academic. Further, the provision of Section 5, Artli~cle r 6571~b, that no deed record, deed of trust record, mechanic's lien record or minute books of any court or any minute book of any political subdivision of Texas may be destroyed, and Section !C,Article 6574b, that five (5) years must have elapsed before any public records may be destroyed, provide safeguards against the indiscriminate and useless destruction of public records. The phrase "until the time for filing legal proceed- ings based on any such record has elapsed" could conceivably cause the fallacious conclusion that orl~ginalpublic records could not be destroyed under any condition as a case of re- cord could altlaysbe attacked on some tenuous theory or prin- ciple of law: It is our opinion that any such construction would defeat the purpose of this act and it is abundantly clear that th:~sconstruction was not intended by the Legisla- ture. It is true that there is the occasional suit or ac- tion which may still be pending at the end of five (5) years or one on which an acti.onwould probably be maintained, and that use of the original public papers would be more practi- cal and convenient, and in these cases, it would perhaps be wise for the Commissioners' Courts or governing bodies, as the case might be, to delay the destructi~onof these records; but, it is felt that the majorit of case files and papers could be destroyed after five (53 years with little likcli- hood of further action. In that event, the duplicated records would always be available for use as original records. It can readily be seen from thk:above quoted emcrgenq clause, Section 10 of House Bi~ll304, Acts of the 50th Letisla- ture, that it was the intentl~onand purpose of the Legislature that old and valueless records be destroyed after being proper- ly duplicated for use as origIna records in order that ad- ditional space in courttouses over Texas may be made avail- able. . Honorable Tom Blackwell, Page 5 (w-i%) The general purpose and intent of any Statute is controlllng, and it has been said that: II . . . In cases of ambiguity, the intent and spirit of the act will prevail over its letter. Thus it is settled that the inten- tion of the Legislature (R 90) controls the language used by it, and in construing a statute the court is not necessarily confined to the literal meaning of the words used, es- pecially in respect of isolated or particular provisions; the intent rather than the strict letter of the act will be regarded. . . .' 39 Tex. Jur. 180,181, Statutes, Sec. 9.5. And, further: II . . . in construing a statute it fre- quently happens that a word or phrase must be added to, or eliminated from, a particular part OP section in order to carry out the mani- fest intentn as disclosed by the entire enact- ment. . . . 39 Tex. Jur. 165, Statutes, sec. 97. (Emphasis ours). It also follows that: ,I . . . a statute be construed as a whole and that all of its parts be harmonized, if possible, so as to give effect to the entire act according to the evident intention of the Legislature. . . . It means also that the court will endeavor to reconcile the various provisions of the act, in so far as they may appear to be conflicting or inconsistent, to the end that the enactment and every word, phrase, clause and sen- tence may have its proper effect. II . . . Thus in case of doubt as to the mean- ing of a particular word, clause, provision or sec- tion, it is to be viewed in the light of all the language employed. It follows that a provision will not be given a meaning out of harmony with other provisions and inconsistent with the pur- pose of the act, although it would be sssceptible of such construction if standing alone. 39 Tex. Jur. 209-212, Statutes, Sec. 113. Honorable Tom Blackwell, page 6 (WW-793) It is therefore the opinion of this Depart- ment that the provision in Article 6574b that no original records may be destroyed until the “time for filing legal proceedings based on any such record shall have elapsed” is not controlling in relation to this statute and that original public records, other than any deed record, deed of trust record, mechanic’s lien record or any minute book of any court, or any minute book of any political subdivision of Texas, may be destroyed according to Article 6574b, when the following conditions have been complied with: (1) when in the judgment of the Commissioners’ Court or other governing bodies a necessity exists; (2) when the re- cords have been pro erly duplicated in a manner set out in sa-ldstatute; (37 when said public records are five (5) years old; and (1:)when notice of said destruction is given the State Librarian, and if such records are, in his opinion, not needed for the Texas state Library. “Original public records” as the phrase is used in Article 6574b, Vernon’s Civil Statutes, includes all filed papers and documents which may be filed in any civil or criminal action in the Courts of Texas, ex- cept those in .adoption proceedings and other suits designated by statutes not to be public records. In view of the provision in Article 6574b, Ver- non's Civil Statutes, that records properly duplicated before destruction are deemed to be original.records for all purposes, the further provision in said statute that no records can be de- stroyed until the “time for filing legal proceedings based on any such record shall have elapsed” is not con- trolling in relation to this statute, as it is “out of harmony” with, and would defeat, the purpose of the act, and the clerks may disregard this , Honorable Tom Blackwell, page 7 (WW-793) provision when other provisions of the Act have been complied with. Yours very truly, WILL WILSON Attorney General of Texas Iola B. Wilcox Assistant IW:mg:ms APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Ralph Rash W. Ray Scruggs Robert H. Walls L. P. Lollar REVIEWED FOR TH!3ATTORNEY GENERAL BY: Leonard Passmore