The Honorable Martin D. Eichelberger Opinion No. H- 115 

District Attorney’ 

McLennan County Re: Applicability of House 

3rd Floor Courthouse Annex Bill 6 (Acts 1973, 63rd 

Waco, Texas Leg., ch. 424, p. 1112, 

Article 6252-17a, V.T.C.S. ) 

to public records ifi custody 

Dear Mr. Eichelberger: of the county clerk. 

Your letter requesting our opinion concerning Article 6252-17a, 

V. T. C. S., poses two questions having to do with records in the custody 

of the county cletik. 

We have recently issued Attorney General Opinion H-90 (1973) in 

which we generally outlined the purposes and provisions of the Act and its 

applicability to certain specific types of information. 

Your first question quotes $ 3(a)(15) of the Act and states that “This 

apparently does not include the birth and death records of County Clerks 

and those of local registrars. ” You ask: 

“We need to know exactly what the County Clerk 

should not do since the quoted exception does not mention other governmental agencies nor local registrars. ‘I 

Section 3(a), after providing in general terms, that most governmental 

records are public information available to the public, lists a number of 

exceptions one of which is, found as subsection (15): “birth and death records 

maintained by the Bureau df Vital Statistics in the State of Texas. ‘1 

As we construe this exception, the language “maintained by the Bureau 

of Vital Statistics in the ,State of Texas” is descriptive of the records and not 

a limitation of the exception. That is to say, the birth and death records which 

p,. 551 
The Honorable Martin D. Eichelberger, page 2 (H-115) 

are.excepted from disclosure under the Act are birth and death records 

of the type maintained by the Bureau of Vital Statistics. 

To hold otherwise would present the anomalous situation that the 

State Registrar of Vital Statistics could not produce a record but that a 

local registrar or a county clerk could. We cannot attribute to the Legislature an intention to achieve such an improbable result. 

We therefore answer your first question that, to the extent that he 

maintains records of birth and death of the type maintained by the State 

Bureau of Vital Statistics, the county clerk is directed by law not to disclose 

them to unauthorized persons on penalty of the sanctions of tiouse Bill 6. i 

We call to your attention other provisions of subsection 3(a)(l) excepting from disclosure “information deemed confidential by law, either Constitutional, statutory, or by judicial decision. ” A record, not excepted by 

$ 3(a)(15) may fall within this category. See Attorney General Opinion H-90 

(1973). 

Your second question is based upon language contained in $ 5 of House 

Bill 6 which provides that: “The chief administrative officer of the governmental body lshall be the custodian of public records. . . . ‘I You state that, 

in the instance of a county, this would be the county judge and the provision 

would be in direct conflict with Articles 1941 et seq. and 6591 et seq. ,V. T. G S, 

which place direct responsibility for the care, custody and control of the 

records in his office upon the County Clerk. You ask o&r construction of the 

quoted phrase with reference to the duties of the County Clerk. 

Section 18 of Article 5 of the Constitution, after ,providing for the 

election of county commissioners, states: 

II 

. . . The County Commissioners so chosen, 

with the County Judge as,presiding officer, shall compose 

the County Commissioners Court which shall exercise 

such powers and jurisdiction over all county business, as 

is conferred by this Constitution and the,laws of the State, 

or as may be hereafter prescribed. ” (emphasis added) 

p. 552 
The Honorable Martin D. Eichelberger, page 3 (H-115) 

Article 5, $ 20, calls for a county clerk “whose duties, perquisites 

and fees of office shall be prescribed by the Legislature. . . . ” 

The statutes governing the powers of the commissioners courts are 

found in Title 44, Vernon’s Texas Civil Statutes, commencing with Article 

2351. They are plenary. ‘A cou&clerk also has broad powers found in 

Chapter 2 of Title 41 of Vernon’s Texas Civil Statutes. They are to be the 

recorders of their respective counties to record all instruments required 

or permitted by law to be recorded. Article 1941, V. T. C,. S., and Article 

6591, et seq., V. T. C. S. They are to keep certain records of their courts. 

Articles 1942 and 1943, V. T. C. S. 

By’ Constitution and statute the government of the county is confided 

to the commissioners court of which the county judge is the,presiding officer. 

Section 2(l) of House Bill 6 definea the “governmental body” of a county as 

being .its commissioners court. The county clerk serves the commissioners 

court. It has been said that his duties are ministerial. Attorney General 

Opinion M-615 (1970). 

We would add that, while we see no conflict with other laws, should 

there be one, the provisions of House Bill 6, as the latest expression of 

the Legislature, would have to control. AlliedFlnance Company of Bay Citv v.&lkner 

397 S. W. 2d 846 (Tex. 1965); State v. Ea,sley, 404 S. W. 2d 296 (Tex. 1966). 

Other county officers and departments besides the County Clerk have 

records which are as much subject to disclosure under House Bill 6 as would 

be those within the office of the county clerk. 

It is apparent that $ 5 of House Bill 6, in making the chief administrative 

officer of the governmental body the custodian of public records, intended by 

that provision to focus the responsibility for the success of the Act upon those 

who have it within their power to make the Act viable. It is obvious that it 

was not the intent that the chief administrative officer, in this case, the county 

judge, actually, physically have custody as would the county clerk. Thus, for 

example, in Subsection 5(b) the statute refers to the custodian’s “agent who 

controls the use of public records. ” 

p. 553 
The Honorable Martin D. Eichelberger, page 4 (H-115) 

As we interpret the Act, the county clerk retains physical care, 

custody and control of the records which, by statute, he is required to 

maintain. The responsibility for seeing that county records, including 

those maintained by the county clerk as well as those maintained by other 

county officers, are disclosed when r.equired by House Bill 6. is placed 

bn the county judge - the chief administrative officer of the governmental 

body. We ‘see no conflict between these provisions. 

SUMMARY 

Birth and death records required by Article 4477 

of the Revised Civil Statutes, whether physically in the 

State Bureau of Vital Statistics, in a local registrar’s 

office, or in the office of a county clerk, are not subject 

to production or disclosure under the provisions of House 

Bill 6, 63rd Legislature (Article 6252-17a, V. T. C. S. )’ 

The provisions of the Act, imposing’upon the county 

judge, as the chief administrative officer of the county as 

a governmental body, the responsibility for enforcement 

of House Bill’6 do not ccmflict with the statutory duties of 

the county clerk as the custodian of the records of his 

office. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 554