### ATTORNEY GENERAL OFTEXAS GREG ABBOTT February 21,2007

The Honorable Susan D. Reed Bexar County Criminal District Attorney 300 Dolorosa, Fifth Floor Opinion No. GA-052 1 Re: Whether funds collected by acounty clerk as San Antonio, Texas 78205-3030 part ofthe records management fee may be used to purchase records (RQ-0525-GA) Dear Ms. Reed: and preservation certain archival

You ask whether funds collected by a county clerk as part of the records management and preservation fee may be used to purchase certain archival rec0rds.l You indicate that the document at issue consists of verified correspondence from William E. Howth, a Colonel under Ben Milam, and third signer ofthe first Declaration of Independence at Goliad, to Don Jose Antonio Navarro, dated September 10, 1838, and addresses Navarro’s election to the Congress of the Republic of Texas on the grounds of “Voting Irregularities.” The document is addressed to the “Republic of Texas, County of Bexar” and to Mr. Navarro and is anotice of intent to take the deposition of A.B. Col. [EFH] who is believed to have been apolling clerk or other election official. Request Letter, supra note 1,at2. You declare that, although the county clerk has in his possession acopy ofthe document, the clerk believes that the original “document was ...part ofthe permanent records ofthe County and must be returned to those records as part ofhis duties ofpreservation and records retention completeness.” Id. at 3. Pursuant to section 118.0 11(b) ofthe Local Government Code, acounty clerk “may set and collect
. . .from any person” arecords management and preservation fee of “not more than $5” for non-court-related services. TEX. LOC. GOV’T CODE ANN.$ 118.011 (b) (Vernon Supp. 2006). The

‘See Letter fkom Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Aug. 24, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].The Honorable Susan D. Reed - Page 2 (GA-0521)

referenced fee “is for the records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office of the clerk.” Id. 5 118.0216(a). “The fee may be used only to provide funds for specific records management and

_ preservation, including for automation purposes.” Id. 5 118.02 16(d). Another statutory provision directs acommissioners court to “establish acounty clerk records management and preservation fund for fees subject to Section 118.02 16 and approve in advance any expenditures from the fund.” Id. 5 203.003(5) (Vernon 1999). The primary purpose of statutory construction is to ascertain and give effect to the Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In order to ascertain legislative intent, we begin by construing a statute according to its plain language. See In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). As we have noted, the records management and preservation fee described by section 118.0 11 ofthe Local Government Code is to be used “for the records management and preservation services performed by the county clerk afler thefiling and recording ofa document in the records ofthe office ofthe clerk.” TEX. LOC.GOV’TCODE

ANN. $ 118.0216(a) (Vernon Supp. 2006) (emphasis added). The original ofthe document at issue here, while it may or may not have been originally filed and recorded in the records ofthe county clerk, is not atpresent apart ofthose records. In our view, the fee described by section 118.011 may not be used to purchase original records that arenot inthe clerk’s possession. Rather, its use isrestricted to “records management and preservation services performed by the county clerk after the filing and recording of a document in the records of the office ofthe clerk.” Id.The Honorable Susan D. Reed - Page 3 (GA-0521)

SUMMARY The records management and preservation fee described by section 118.011 of the Local Government Code may not be used to purchase original records that are not currently in the possession of the county clerk. The use of the fee is restricted to “records management and preservation services performed bythe county clerk after the filing and recording of a document in the records of the office of the clerk.” TEX.Lot. GOV’TCODE ANN. 5 118.0216(a) (Vernon Supp. 2006).

KENT C. SULLIVAN First Assistant Attorney General ELLEN L. WITT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee