ATTORNEY GENERAL OF TEXAS 

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 a county clerk as 

San Antonio, Texas 78205-3030 part of the 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 of the 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 a notice of intent 

to take the deposition of A.B. Col. [EFH] who is believed to have 

been a polling clerk or other election official. 

Request Letter, supra note 1, at 2. You declare that, although the county clerk has in his possession 

a copy of the document, the clerk believes that the original “document was . . . part of the permanent 

records of the County and must be returned to those records as part of his duties of preservation and 

records retention completeness.” Id. at 3. 

Pursuant to section 118.0 11 (b) of the Local Government Code, a county clerk “may set and 

collect . . . from any person” a records 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 a commissioners court to “establish a county 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 of the Local Government Code is to be used “for the 

records management and preservation services performed by the county clerk afler the filing and 

recording of a document in the records of the office of the clerk.” TEX. LOC. GOV’T CODE ANN. 

$ 118.0216(a) (V ernon Supp. 2006) (emphasis added). The original of the document at issue here, 

while it may or may not have been originally filed and recorded in the records of the county clerk, 

is not at present a part of those records. In our view, the fee described by section 118.011 may not 

be used to purchase original records that are not in the clerk’s possession. Rather, its use is restricted 

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 of the 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 by the county clerk 

after the filing and recording of a document in the records of the 

office of the clerk.” TEX. Lot. GOV’T CODE 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