ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 21,2007
The Honorable Susan D. Reed Opinion No. GA-052 1
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor Re: Whether funds collected by a county clerk as
San Antonio, Texas 78205-3030 part of the records management and preservation
fee may be used to purchase certain archival
records (RQ-0525-GA)
Dear Ms. Reed:
You ask whether funds collected by a county clerk as part of the records management and
preservation fee may be used to purchase certain archival rec0rds.l
You indicate that the document at issue
consists of verified correspondence from William E. Howth, a
Colonel under Ben Milam, and third signer of the first Declaration of
Independence at Goliad, to Don Jose Antonio Navarro, dated
September 10, 1838, and addresses Navarro’s election to the
Congress of the Republic of Texas on the grounds of “Voting
Irregularities.” The document is addressed to the “Republic of
Texas, County of Bexar” and to Mr. Navarro and is a notice of intent
to take the deposition of A.B. Col. [EFH] who is believed to have
been a polling clerk or other election official.
Request Letter, supra note 1, at 2. You declare that, although the county clerk has in his possession
a copy of the document, the clerk believes that the original “document was . . . part of the permanent
records of the County and must be returned to those records as part of his duties of preservation and
records retention completeness.” Id. at 3.
Pursuant to section 118.0 11 (b) of the Local Government Code, a county clerk “may set and
collect . . . from any person” a records management and preservation fee of “not more than $5” for
non-court-related services. TEX.LOC.GOV’TCODEANN. $ 118.011 (b) (Vernon Supp. 2006). The
‘See Letter fkom Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Aug. 24, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Susan D. Reed - Page 2 (GA-0521)
referenced fee “is for the records management and preservation services performed by the county
clerk after the filing and recording of a document in the records of the office of the clerk.” Id.
5 118.0216(a). “The fee may be used only to provide funds for specific records management and
_ preservation, including for automation purposes.” Id. 5 118.02 16(d). Another statutory provision
directs a commissioners court to “establish a county clerk records management and preservation fund
for fees subject to Section 118.02 16 and approve in advance any expenditures from the fund.” Id.
5 203.003(5) (Vernon 1999).
The primary purpose of statutory construction is to ascertain and give effect to the
Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In order to
ascertain legislative intent, we begin by construing a statute according to its plain language. See In
re Canales, 52 S.W.3d 698, 702 (Tex. 2001). As we have noted, the records management and
preservation fee described by section 118.0 11 of the Local Government Code is to be used “for the
records management and preservation services performed by the county clerk afler the filing and
recording of a document in the records of the office of the clerk.” TEX.LOC.GOV’TCODEANN.
$ 118.0216(a) (V ernon Supp. 2006) (emphasis added). The original of the document at issue here,
while it may or may not have been originally filed and recorded in the records of the county clerk,
is not at present a part of those records. In our view, the fee described by section 118.011 may not
be used to purchase original records that are not in the clerk’s possession. Rather, its use is restricted
to “records management and preservation services performed by the county clerk after the filing and
recording of a document in the records of the office of the clerk.” Id.
The Honorable Susan D. Reed - Page 3 (GA-0521)
SUMMARY
The records management and preservation fee described by
section 118.011 of the Local Government Code may not be used
to purchase original records that are not currently in the possession
of the county clerk. The use of the fee is restricted to “records
management and preservation services performed by the county clerk
after the filing and recording of a document in the records of the
office of the clerk.” TEX.Lot. GOV’T CODEANN. 5 118.0216(a)
(Vernon Supp. 2006).
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee