.’


## THEATTORNEY GENERAL
OF TEXAS

WLL WILSON ATTORNEY GENERAL February 2, 

## 1960

Honorable Tom Blackwell OpinionNo. WW-793 Cou~nty

Attorney Travis County Re: What original records Austin, Texas In the office of the District Clerk may be destroyed under the provisionsof Art:!cle 6574b, Vernon's Civ!l Dear Mr. Elackwell: Statutes.

We have received your request for an opinion on the followingquestions:

1. Do "originalpublicrecords" 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 instruments that might be filed in a civil case, and indictments,drafts or orders, and all other pleadingsor Instrumentsthat might be filed in a criminal case. 2. Inwhat Instanceswould the clerk be barred from destroying public records "until the time for filing legal proceedingsbased 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 'publicrecord'

. . .'
Words and Phrases_, Volume 35, page 318, contains the following definition:

"Judgmentroll, files, papers, and orders in case are 'judicialrecords', 'publicwritings', and 'publicrecords'within statutes

. . .rrHonorable Tom Blackwell, page 2 (W-793)

Weagain find in Words and Phrases,Volume 3.5,at page 26 of the pocket part:

"Defendant'spleadingsand papers, which were Involved in civil action and which were in custody of county clerk as ex officio clerk of superior court in which actionwas documents'

. . .'

pending,were 'public

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 pleadingsor 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 CommissionersCourt of any county In Texas, or the governingbody of any political subdivision of Texas,may, at its discretion,order, authorize and provide for the duplicationof all publicrecords by photostatic, photographic,miniature photographic, filmmicrofilm or microphotographicprocess which correctly and legibly copies and reproduces, or which forms a medium of copying or reproducing, such publicrecords,when, in the judgment of a CommissionersCourt, or of the governingbody of any politicalsubdivisionof Texas, a necessity exists for the photographic duplication of said public records for the purpose of recording, preservingand protecting same, or for the purposeof reducln& space required for filing, storing and safekeepingof same, or for any similar purpose. II

. . . "Sec.4. Said photographicduplicatesof all public records shall be placed in conveniently accessible files and provisionsshallbe madeHonorable Tom Blackwell, page 3 (Ww-793)

for preserving,safekeeping, using, examining, exhibiting, projecting,and enlarging the same whenever requested duringregular office hours. Whenever protographicduplicatesof public records are so made, certified and placed, the original public records may be, by order of the Commissioners Court of the county, or of the governingbody of any political subdivision of Texas, destroyed or otherwise disposed of, provided,however, that no original record shall be destroyed or otherwise disposed of unless or until the time for filing legal proceedingsbased on any such record shall have elapsed, and, in no event shall any original nubzic record be destroyed or otfierwlse disposed ofuhtll said public record Is at least five (5)years old; and provided further, that notice of such proposed destructionor dispositionof original publicrecords 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 transferred thereto in the manner provided in Article 5439,Revised Civil Statutes, 1925.
"Sec. 5. Nothing in thls Act shall authorize the destruction or dispositionof 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 photographicduplicates of public records shall be deemed to be an original record for all purposes, including introduction in all Courts or adminlstrativeagencies. A transcript, exemplification, or certified copy thereof shall, for all purposes recited herein, be deemed to be a transcript, exemplificationor certified copy of the original. II

. . . "Sec. 10. The fact that the courthouses inmany of the counties of this State are now greatly burdened by old a+idvaluelessrecords, which condition is growingmore serious all the time; and the fact that the said records are a fire hazard inmany 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 provisionsunder Section 1 of Article 6574-b that all public recordsmay be destroyed if properly duplicatedas set out in said statute and that, under Section 7,Article 657413, the public records properly duplicatedmay be considered orig-i.nal public records for all purposesand can be usedwhen needed as the bas:~s of any action which may be maintained phrase or provision under Section 4,it appears that the Article 6574b, "unti~l the time for legal proceedingsbased on any such recmrd shall have elapsed"has littlemeaning, and any discussion of th1.ssubjectwould be of almost infiniterange and pure1 academic. r

Further, the provisionof Section 5, Artli~cle 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 subdivisionof Texasmay be destroyed,and Section !C, Article 6574b, that five (5)yearsmust have elapsedbefore any publicrecords may be destroyed,provide safeguardsagainst the indiscriminateand useless destructionof publicrecords.

The phrase "until the time for filing legal proceedings based on any such record has elapsed" could conceivably
cause the fallacious conclusionthat orl~ginal publicrecords could not be destroyed under any conditionas a case of record could altlays be attacked on some tenuous theory or principle of law: It is our opinion that any such construction would defeat the purpose of this act and it is abundantly clear that th:~s

constructionwas not intendedby the Legislature.
It is true that there is the occasional suit or action which may still be pending at the end of five (5)years or one on which an acti.on would probablybe maintained,and that use of the original public paperswould be more practical and convenient,and in these cases, itwould perhapsbe wise for the Commissioners'Courts or governing bodies,as the case might be, to delay the destructi~on of these records; but, it is felt that the majorit of case files and papers could be destroyedafter five (5 3 years with little likclihood of further action. In that event, the duplicatedrecords would always be available for use as original records.

It can readily be seen from thk: above quoted emcrgenq clause, Section 10 of HouseBi~ll304, Acts of the 50th Letislature, that it was the intentl~on and purpose of the Legislature that old and valueless records be destroyed after being properly duplicated for use as origIna records in order that additional space in courttouses over Texas may be made available..

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 intention of the Legislature (R 90) controls the language usedby it, and in construinga statute the court is not necessarily confined to the literalmeaning of the words used, especially in respect of isolatedor 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 frequently happens that a word orphrase must be added to, or eliminated from, a particular part OP section in order to carry out the manifest intentn as disclosedby the entire enactment.

. . . 39 Tex. Jur. 165, Statutes, sec. 97. (Emphasisours).
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 everyword, phrase, clause and sentence may have its proper effect. II

. . .Thus in case of doubt as to the meaning of a particularword, clause, provision or section, 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 provisionsand inconsistentwith the purpose 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 thereforethe opinion of this Department that the provision in Article 6574b that no originalrecordsmay be destroyed until the “time for filing legal proceedingsbased 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 subdivisionof Texas, may be destroyedaccordingto Article 6574b,when the following conditionshave been compliedwith: (1) when in the judgmentof the Commissioners’Court or other governingbodies a necessity exists; (2)when the records have been pro (37 erly duplicated in a manner set out in sa-ld

statute; (5)years old; when said public records are five

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.

“Originalpublic records” as the phrase is used in Article 6574b, Vernon’s Civil Statutes, includes all filed papers and documentswhich may be filed in any civil or criminal action in the Courts of Texas, except those in .adoptionproceedings and other suits designatedby statutes not to be publicrecords. In view of the provision in Article 6574b,Vernon's Civil Statutes,that records properlyduplicatedbefore destruction are deemed to be original. records for all purposes,the furtherprovision in said statute that no records can be destroyed until the “time for filing legal proceedingsbased on any such record shall have elapsed” is not controlling in relation to this statute, as it is “out of harmony”with, and would defeat, the purposeof the act, and the clerksmay disregardthis,

Honorable Tom Blackwell, page 7 (WW-793)

provisionwhen other provisions of the Act have been compliedwith.

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!3

ATTORNEY GENERAL BY: Leonard Passmore