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

District Attorney’ McLennan County Re: Applicability ofHouse 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 dowith records in the custody ofthe 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 oflocal 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 ofwhich is,found as subsection (15): “birth and death records maintained by the Bureau dfVital Statistics inthe 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 ofthe records and not alimitation of the exception. That is to say, the birth and death records which

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

are.excepted from disclosure under the Act are birth and death records ofthe 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 ofbirth and death ofthe 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 oftiouse 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 byjudicial 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 $5of House Bill 6which provides that: “The chief administrative officer of the governmental body lshall be the custodian ofpublic records.

. . .‘I You state that, inthe instance of a county, this would be the county judge and the provision would be in direct conflict with Articles 1941et seq. and 6591et seq. ,V.T.GS, 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 ofthe quoted phrase with reference to the duties of the County Clerk. Section 18ofArticle 5of 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 andjurisdiction over all county business, as is conferred by this Constitution and the,laws ofthe State, or as may be hereafter prescribed. ” (emphasis added)

p. 552The 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 ofthe 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 2of Title 41of 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 ofthe county is confided to the commissioners court ofwhich the county judge is the,presiding officer. Section 2(l) ofHouse Bill 6definea 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 ofHouse Bill 6, as the latest expression of the Legislature, would have to control. AlliedFlnance Company ofBay Citv v.&lkner 397S.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 todisclosure under House Bill 6as would be those within the office ofthe county clerk. It is apparent that $5of House Bill 6, in making the chief administrative officer ofthe governmental body the custodian ofpublic records, intended by that provision to focus the responsibility for the success of the Act upon those who have itwithin 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 tothe custodian’s “agent who controls the use ofpublic records. ”

p. 553The 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 bnthe county judge - the chief administrative officer ofthe 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 alocal registrar’s office, or inthe office of a county clerk, are not subject to production or disclosure under the provisions ofHouse 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 ofthe county as a governmental body, the responsibility for enforcement of House Bill’6 donotccmflict with the statutory duties of the county clerk as the custodian of the records ofhis office. Very truly yours,

Attorney General ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

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