. . 

The Attorney General of Texas 

December 31. 1982 

MARKWHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin. TX. 78711. 2548 

5121475.2501 

Telex 910/874-1367 

Telecopier 5121475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201-4709 

2141742-8944 

4824 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

9151533-3484 

1220 Dallas Ave.. Suite 202 

Houston. TX. 77002-6986 

713/650-0666 

806 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

8061747.5236 

4309 N. Tenth. Suite S 

McAllen, TX. 78501-1665 

5121682-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Henry 

Dallas District 

601 Elm Street 

Dallas, Texas 

Dear Mr. Wade: 

Wade 

Attorney 

75202 

Opinion No. MIJ-574 

Re: Procedure for tasting 

microfilms of records filed 

with county clerks, and 

related matters 

You have asked several questions about the construction to be 

given article 1941(a), V.T.C.S., following its amendment in 1979. 

First, you ask if a county clerk can make microfilm records under 

section 6, subsections (a). (b) and (c) of the statute without 

necessarily reproducing from the microfilm (and maintaining for public 

use) a set of paper records. 

Before 1979, the law imposed a special duty upon county clerks 

who microfilmed original records that were not to be retained in the 

clerk's files. Clerks were under a duty to test the accuracy and 

clarity of the microfilm image by reproducing from the microfilm a 

paper copy of the record filmed. After the reproduced microfilmed 

version of an original document had been inspected and checked in that 

manner and found satisfactory, the law made it the duty of the clerk 

to return the original to the party who filed it. The statute then 

(as now) specified that records transferred to the state librarian 

pursuant to state law "need not be reproduced." See Acts 1977. 65th 

Leg., ch. 463, 99, at 1201. 

In 1979, pertinent parts of the statute were amended so that it 

now reads: 

Sec. 6. (a) Each county clerk and county 

recorder and clerk of county courts, whenever the 

original paper record is not retained in the files 

of the county clerk, shall inspect and check each 

filmed image on each roll of microfilm, or each 

p. 2120 
Honorable Henry Wade - Page 2 (MW-574) 

each roll of microfilm, or each filmed image of 

the discrete group of filmed images, for the 

purpose of inspecting and checking each filmed 

image for accuracy and clarity. Should a 

microfilm image be defective in any respect, the 

original instrument of writing, legal document, 

paper or record, from which said defective filmed 

image was made, shall be remicrofilmed on a 

subsequent roll of microfilm, or on a subsequent 

discrete image or images of a subsequent discrete 

group of individual Images, to obtain acceptable 

images on microfilm. A record need not be 

reproduced if it is transferred to the custody of 

the state librarian pursuant to state law. 

(b) Notwithstanding anything to the contrary 

provided by any other statute or statutes, when an 

instrument of writing, legal document, paper, or 

record has been microfilmed and said microfilm has 

been proven satisfactory by inspecting and 

checking as provided herein, said clerk is hereby 

authorized to, and shall, return each such 

instrument of writing, legal document, paper or 

record, excepting those involved in or relating to 

court matters and proceedings, to the party or 

parties who filed it. (Emphasis added). 

The new statutory language makes the intent clear, we think, that 

county clerks who microfilm records no longer need reproduce (or keep) 

a set of paper records from the microfilm in order to test the 

accuracy and clarity of the filmed image. The legislative history of 

Senate Bill No. 316, which effected the changes, confirms that 

conclusion. See Acts 1979, 66th Leg., ch. 254, at 538; Bill Analysis 

to S.B. NT 316, prepared for the Senate Committee on 

Intergovernmental Relations, filed in Bill File to S.B. No. 316. 

Legislative Reference Library. 

The sentence retained in subsection (a) that makes reproduction 

of a record unnecessary if it is transferred to the custody of the 

state librarian does not compel a different view. In its present 

context, we believe it is intended as a guide to those county clerks 

who choose to reproduce microfilmed images onto paper records; it does 

not mean that microfilmed records must be reproduced on paper if they 

are not transferred to the state archives. The intention of the 

legislature is the dominant consideration in construing a statute. 

Calvert v. British-American Oil Producing Company, 397 S.W.2d 839 

(Tex. 1965). In our opinion, the legislature clearly intended in 

subsections (a) and (b) to make optional with each county clerk the 

p. 2121 
. 

Honorable Henry Wade - Page 3 (MW-574) 

reproduction of records onto paper from microfilm for purposes of 

testing the microfilm image. 

Subsection (c) of section 6 deals with records relating to court 

matters and proceedings. It reads: 

(c) Original instruments of writing, original 

legal documents, original papers and original 

records, which have been filed relating to court 

matters and proceedings and which have been 

recorded on microfilm records, shall be retained 

in the files of the docket to which they relate 

until a written order of the court closes such 

docket, after which all of the records in such 

docket shall be microfilmed in time sequence to 

provide all of such records of a docket in an 

unbroken continuous sequence on one roll of 

microfilm, or in an unbroken continuous sequence 

of discrete images in a group of discrete images. 

This subsection contemplates that original documents relating to court 

matters and proceedings will be retained by the clerk until the court 

closes the docket to which they relate, even though they have been 

microfilmed. After the docket is closed, it requires that they be 

microfilmed (again) in a manner to provide -- on microfilm -- a 

continuous sequence of the records pertaining to the closed docket. 

It does not require the clerk to employ the microfilm-to-paper testing 

procedure mandated by the statute previous to its amendment. 

You also ask whether any paper records that are reproduced by 

clerks from microfilm can be destroyed before the expiration of five 

years. 

There is no requirement in the present statute that clerks retain 

we= records that they may have reproduced from microfilm for 

purposes of inspection and checking the microfilmed image. Subsection 

(d) of section 6 does specify that the commissioners court of a county 

may order the disposal of the originaln paper records from which the 

microfilm records were made only after microfilm film prints" from an 

"original negative microfilm" meeting certain standards are certified 

as having been satisfactorily used by the public for five years or 

more. But, in our opinion, the term "microfilm film prints" includes 

copies of microfilm produced on film as well as on paper. See 

National Center for State Courts, Microfilm and the Courts: Guide for 

Court Managers 13, 14, 52 (1976). Moreover, the requirement does not 

mean that the clerk must have reproduced paper records from the 

microfilm and retained them for public use. It means only that prints 

of the records, when requested by the public, must have been 

satisfactorily reproduced from the original microfilm negative. 

p. 2122 
Honorable Henry Wade - Page 4 (NW-574) 

Inasmuch as subsection (b) of section 6 plainly contemplates the 

return of original documents (except those involved in or relating to 

court matters and proceedings) to the person who filed them as soon as 

the inspection and checking required by subsection (a) have been 

satisfactorily completed, the only "filed" records to which subsection 

(d) can have application are instruments of writing, legal documents, 

papers or records relating to court matters or proceedings [k, 

those addressed by subsection (c)l. One of your questions has to do 

with when a county clerk may dispose of such original court records. 

We answer that the clerk may dispose of them only after the 

commissioners court has entered an order directing their disposition, 

such order being conditioned, among other things, upon certification 

by the clerk that microfilm film prints of the original records have 

been satisfactorily used by the public for at least five years. 

Your remaining question concerns the term 

"microfilm film prints," 

the meaning of 

a matter we have already discussed. S.Sl? 

generally H.G. Jones, Local Government Records 64 et seq. (1980). 

SUMMARY 

County clerks are not required to reproduce a 

set of paper records from microfilms of original 

records in order to inspect and check the accuracy 

and clarity of the microfilm image, but may do so. 

If such paper prints are made, there is no 

requirement that they be kept. Original court 

records filed with the clerk cannot be disposed of 

except on certification, inter alla, that 

microfilm prints of the original records have been 

satisfactorily used by the public for at least 

five years. 

Azs 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

p. 2123 
. . 

Honorable Henry Wade - Page 5 (MW-574) 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Kate Conroy 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

Bruce Youngblood 

p. 2124