The Attorney General of Texas
JIM MATTOX November 10, 1983
Attorney General
Supreme Court Building
Honorable Mike Driscoll Opinion No. JM-95
P. 0. Box 12546 Harris County Attorney
Austin, TX. 76711. 2546 1001 Preston, Suite 634 Re: Duplicate microfilm copies
5121475-2501 Houston, Texas 77002 of real property records
Telex 9101674-1367
Telecopier 512/475-02&Y
Dear Mr. Driscoll:
714 Jackson. Suite 700 You have asked the following questions:
Dallas, TX. 75202.4506
2141742-6944
1. Is the county clerk required to provide
duplicate microfilm real property records to a
4624 Alberta Ave.. Suite 160 person upon his request for same?
El Paso. TX. 79905.2793
915,533.3484 2. If you answer the first question in the
affirmative, what is the proper fee for same if
certified? If not certified?
P?l Texas, Suite 700
.ustcm, TX. 77002-3111
7131223-5666 3. If the county clerk is required to provide
duplicate microfilm copies to the public, can the
clerk limit who may receive the copies and the use
806 Broadway. Suite 312
thereof?
Lubbock, TX. 79401-3479
6061747-5236
We conclude that a county clerk must provide duplicate microfilm
copies of real property records to persons requesting the same and may
4309 N. Tenth, Suite S not limit who may receive such copies or the use thereof. By
McAllen, TX. 76501-1665
"microfilm copies" we mean duplicates in microfilm form of the actual
5121662.4547
microfilm. We conclude that appropriate fees for certified duplicate
microfilm copies are established by article 3930(3), V.T.C.S., while
200 Main Plaza, Suite 400 the proper fees for such non-certified copies should be determined
San Antonio. TX. 762052797 under section 9(b) of article 6252-17a, V.T.C.S.
5121225.4191
The general statute governing the availability of records to the
An Equal Opportunity\ publLc is the Open Records Act, article 6252-17a, V.T.C.S. Section
Affirmative Action Employer 3(a) says that, subject to certain specified exceptions,
Iall1 information collected, assembled, or
maintained by governmental bodies pursuant to law
or ordinance or in connection with the transaction
of official business is public information and
available to the public during normal business
hours of any governmental body . . .
Section 2(2) defines public records as
p. 403
Honorable Mike Driscoll - Page 2 (JM-95)
the portion of all documents, writings, letters,
memoranda, or other written, printed, typed,
copied, or developed materials which contains
public information.
Section 9(b) refers to
public records . . . in computer record banks,
microfilm records, or other similar record keeping
systems . . ,
We have consistently held "that the form in which information is
stored does not determine its availability." Open Records Decision
No. 364 (1983). In Open Records Decision No. 352 (1982). this office
concluded that a computer tape (1) is "public information" under
section 3(a) of the act, which provides that "[a]11 information
collected . . . or maintained by governmental bodies . . . in
connection with the transaction of official business is public
information"; and (2) constitutes "developed materials" within the
meaning of section 2(2) of the act, which defines "public records" as
"the portion of all . . . developed materials which contains public
information." See generally Open Records Decision No. 32 (1974) (tape
recording of open meeting of governmental agency subject to required
disclosure). See also Open Records Decision Nos. 182 (1977); 65
(1975). Microfilm records should be treated no differently than
computer tapes and "are, therefore, not per se excepted from required
disclosure under the act." Open Records Decision No. 352 (1982).
Consequently, we have no doubt that the availability of duplicate
microfilm copies of real property records from the county clerk's
office is controlled by the Open Records Act and that such must be
provided to the public pursuant to sections 4, 5(b), and 14(a).
However, section 9(d) of article 6252-17a, states that "[tlhe
charges for copies made in . . . the county clerk's office shall be as
otherwise provided by law." Article 3930 sets out a fee schedule for
various services of county clerks. It reads in pertinent part as
follows:
(3) For issuing each certified copy (except
certified copy of nap records and condominium
records), notice, statement, license where the fee
for issuing the license is not specifically
provided by statute. or any other instrument,
document, or paper authorized, permitted, or
required, to be issued by said county clerk or
county recorder, except as otherwise provided in
Section 1, of this Act:
For each page, or part of a page, a fee, to be
paid in cash at the time each order is placed, -.
of...........................................$l.OO
p. 404
Honorable Mike Driscoll - Page 3 (a-t-95)
plus $1.00 for the county clerk's certificate.
. . . .
(10) For such other duties prescribed,
authorized, and/or permitted by the Legislature
for which no fee is set by this Act, reasonable
fees shall be charged.
Article 1941(a), section 3, states:
The microfilm records provided for in this Act
shall be deemed to be original records for all
purposes and shall. be so accepted by all courts
and administrative agencies of this State; and
transcripts, exemplifications, copies, or
reproductions on paper or on film of an image or
images of said microfilm records, when issued and
certified to by said clerk, shall be deemed to be
certified copies of the originals for all purposes
and shall be so accepted by all courts and
administrative agencies of this State.
When these two statutes are read together, it is apparent that the
proper fee for a certified copy of a duplicate microfilm of real
property records is $1.00 for the county clerk's certificate to each
instrument, etc., plus $1.00 for each page or part thereof. Since
your office informs us that each frame of the county clerk's microfilm
records contains s representation of only one page of the original
instrument, etc., our conclusion is limited to this fact situation.
With regard to non-certified copies for which no fee is
specifically set, "reasonable fees" are to be charged. since no
further guidance concerning the standard in article 3930(10) is
provided, it is appropriate to Look to the Open Records Act as was
done in Attorney General Opinion W-163 (1980). Section 9(b) of
article 6252-17~1states that
[clharges made for access to public records
comprised in any form other than up to standard
sized pages or in computer record banks, microfilm
records, or other similar record keeping systems,
shall be set upon consultation between the
custodian of the records and the State Board of
Control, giving due consideration to the expenses
involved in providing the public records making
every effort to match the charges with the actual
cost of providing the records.
p. 405
Honorable Mike Driscoll - Page 4 (JM-95)
We believe that this standard should be applied by the county clerk in
supplying copies of non-certified copies. A custodian of records
should consult with the State Purchasing and General Services
Commission to establish the appropriate charges to be made to the
requesting party for non-certified copies. -See Open Records Decision
No. 65 (1975).
To the extent that this op1,nionconflicts with Attorney General
Opinion C-75 (1963), the latter is overruled.
sUMMARY
The Open Records Act requires the county clerk
to provide duplicate microfilm copies of real
property records without limiting who may receive
them or the use to which such records are put.
The county clerk must charge the fees set cut in
article 393G(3), V.T.C.S., for certified copies of
such microfilm copies. The county clerk should
comply with section 9(b) of article 6252-17a,
V.T.C.S., in determining the "reasonable fees"
authorized by article 3930(10), V.T.C.S., for
non-certified microfilm copies of real property
records. .
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
3on Bible
David Brooks
Colin Carla
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 406