### DAN MORALES

.ATTORNEY CENERAL 

### QBffice of toe Bttornep 63tate of Qexa53 November 17,1998 

### @eneral

The Honorable Bobby Lockhart Bowie County Criminal District Attorney P.O. Box 3030 Bi-State Justice Center Texarkana, Texas 75504 Opinion No. DM-492 Re: Whether the commissioners court or the county clerk is authorized to control the expenditure of records management and preservation fees collected under Local The Honorable Dan C. Clower Walker County Auditor 1100 University Avenue Huntsville, Texas 77340 Government Code section 118.02 16, and related questions (RQ-953)

The Honorable Jeffrey D. Herrington Anderson County Criminal District Attorney 500 North Church Street Palestine, Texas 75801

Dear Sirs: You each ask questions regarding the Local Government Code section 118.02 16records management and preservation fee. Because your questions raise similar issues, we answer them together. These issues fall into two general categories. First, your questions ask us to determine whether the commissioners court orthe county clerk controls the use offunds collected under section 118.0216. For the reasons discussed below, we believe that the commissioners court and county clerk’ must agree on the expenditure of funds collected under section 118.0216 and that, in effect, neither the court nor the clerk may use these funds without the cooperation of the other. Second, your questions ask us to determine whether section 118.0216 funds may be used only to pay for projects preserving and automating records that have already been filed and recorded in the county records or whether they may also be used to pay for the cost ofrecording documents by microfilm asthey are initially tiled. We conclude that section 118.0216 funds may be used topay for the costs ofrecording documents by microfilm, but only ifcertain conditions are met.

‘We assume that the county clerks in your counties have not delegated their records management duties tothe county records management officer under Local Government Code section 203.005(g).The Honorable Bobby Lockhart - Page 2 (DM-492)

The Honorable Dan C. Clower The Honorable Jeffrey Herrington

We briefly describe the facts giving rise to your requests. Mr. Lockhart asks whether the commissioners court orthe county clerk decides how the records management and preservation fee isused. Apparently, the commissioners court inhis county allocated aportion ofthe funds collected under section 118.0216 formicrofilming records. He informs usthat “[tlhe County Clerk feels these funds and the allocation/expenditure of the fees collected through the records management and preservation fee are to be used solely at her discretion.” Mr. Herrington asks whether the commissioners court or the county clerk decides whether to discontinue funding a records preservation and automation project paid from section 118.0216 funds. In 1995, the commissioners court inhis county approved the request ofthe county clerk to expend section 118.0216 monies to lease certain equipment foruse by the county clerk. Later, in 1996, the county clerk decided that the lease was not an appropriate use of section 118.0216 funds. The commissioners court voted to discontinue payments on the lease only after the county clerk threatened legal action. Finally, Mr. Clower informs us that the district attorney in his county has opined that the section 118.0216 account may not be used to pay for microfilming and indexing the documents tiled with the clerk’s office on a daily basis and that the fee may only be used for specific records preservation and automation projects as determined by the county clerk.’ Mr. Clower believes that the section 118.0216 account may be used to pay for the microfilming and indexing of documents tiled on a daily basis inthe clerk’s office, ifthe commissioners court determines that this process is aspecific records preservation and automation project.3 Section 118.0216 authorizes, but does not require a county clerk to collect a records management and preservation fee

for the records management and preservation services performed by the county clerk after the tiling and recording ofadocument inthe records ofthe office of the clerk. The fee may be used only to provide funds for specific records preservation and automation projects.

‘Mr. Clower informs us that the county clerk’s employees microfilm therecords tiled in the clerk’s office using acameraand film providedbyathirdpartyvendor.Theclerk sends the microfilm tothe third party vendor who makes an archival print of the film. The third party vendor also compiles indices of the clerk’s records, binds the indices and sends them tothe county clerk’s office. Letter from Dan C. Glower, Walker County Auditor, to Sarah J.Shirley, Office of the Texas Attorney General (Jan. 22, 1997).

‘Mr. Glower’s request also raises numemus other questions about allocation of fees collected under Local Government Code sections 118.012 and 118.013 and about the authority ofthe county auditor and the commissioners court regarding county expenditures. We will address some of his questions in this opinion. Other questions may be mooted by this opinion, and his questions about the general authority of the county auditor may be answered by consulting prior opinions ofthis office. See Attorney General Opinions DM-440 (1997), H- 17l(l973); Letter Opinion No. 93-91 (1993).

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The Honorable Dan C. Clower The Honorable Jeffrey Herrington (DM-492)

Local Government Code section 203.003(5) requires acommissioners court to “establish acounty clerk records management and preservation fund for fees subject to Section 118.0216 and approve in advance any expenditures from the fund.” Prior letter opinions ofthis office, all dating from 1992: address control offunds collected under section 118.0216. The conclusions ofthese opinions can be summarized as follows: Fees collected under section 118.0216 are not under the control of the county clerk.5 The county clerk must deposit the fees he or she collects with the county treasurer.6 The county treasurer must deposit the funds in a separate account in order to ensure that the monies are used only for the specific purpose set forth in section 118.0216.7 The commissioners court isresponsible for allocating the monies collected, but may expend them only “for specific records preservation and automation projects” in the office ofthe county clerk.* The determination whether aparticular project will aid inpreserving or automating county clerk records must be made by the commissioners court in the first instance.’ Decisions regarding records management andpreservation fee fund expenditures are not within the sole discretion of the county clerk.“’ In 1993, an appellate court addressed control offunds collected under section 118.0216. See 

### Hooten v.Enriquez, 863 S.W.2d 522, (Tex. App.--El Paso 1993, no writ). Were-examine our prior opinions in light of that case. 

### Hooten arose from adispute between the commissioners court and county clerk in El Paso County. The commissioners court attempted to allocate section 118.0216 funds tothe county records department.” The county attorney then advised the commissioners court that the funds could only

‘See Letter OpinionNos. 92-81 (1992); 92-77 (1992) (withdrawn Jan. 5, 1998); 92-7 (1992). *SeeLetter Opinion Nos. 92-81 (1992) at 2-3; 92-7 (1992) at 2. 6See Letter Opinion Nos. 92-81 (1992) at 2; 92-7 (1992) at 2.

‘See Letter Opinion No. 92-7 (1992) at 2; see also Local Gov’t Code 5203.003(5) (requiring commissioners court to establish county clerk records management and preservation fund for fees subject to section 118.0216 and to approve in advance any expenditures from fund).

‘See Letter Opinion Nos. 92-81 (1992) at 2-3; 92-7 (1992) at 2-3.

‘See Letter Opinion Nos. 92-81 (1992) at 2-3; 92-7 (1992) at 3.

‘%ee Letter Opinion No. 92-7 (1992) at 3.

“Hooten, X63S.W.2d at 525-26,

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The Honorable Dan C. Clower The Honorable Jeffrey Herrington
be used for records preservation and automation projects in the office of the county clerk.‘* In response, the commissioners court appointed a county employee to conduct a study of the county clerk’s office. The employee was directed to identity preservation and automation functions performed by deputy county clerks that could be funded from the section 118.02 16account. The goal was tocreate asurplus inthe county clerk’s general fund account that could then be transferred tothe county general fund account for the county records department.” After the completion ofthe study, the commissioners court “designated specific records preservation and management functions that were to be performed by those deputies appointed by the County Clerk”14and “designated that those deputies be paid from the proceeds ofthe dedicated [section 118.0216] fee account.“‘5 The majority opinion’s analysis isbased on areview ofthe constitutional and statutory duties of the commissioners court and the clerk. In addition to constitutionally derived jurisdiction over “county business,“lb the opinion notes that “the commissioners court specifically has the statutory authority to oversee the fiscal operation of the county by approving and authorizing a budget. Generally, the allocation of county funds is apolicy-making determination left to the sound discretion ofthe commissioners court.“” The majority opinion also notes, however, that the legislature has vested the county clerk with the duty to “keep the county records properly indexed and arranged.“‘* A county clerk, who has not delegated records management to the county records management officer, “is the custodian of the local government records received orcreated by his constitutionally-created office”” pursuant to the Local Government Records Act, see Local Gov’t Code chs. 201-205. Such acounty clerk “has the exclusive and absolute discretion to develop policies and records management procedures that will preserve permanent records inthe most efficient and cost-effective manner, assuch policies relate to the County Clerk’s offtce.“zO With regard to county offrcers who have not delegated records management authority to the county records management officer, “the role of the commissioners

‘=ld. at526.

“Id,

“Id. at527.

‘5Id.

‘6ld. at529,

“Id. at530

“id.

“old. at 531

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court in managing the records ofthe elected officers islargely one of support.“” For this reason, the court concluded that the El Paso county clerk, who had chosen to retain the records management function, “has complete responsibility and control over the administration of [the county clerk’s office] records management program.“” Finally, the majority opinion also relies on the fact that the legislature has vested “the county clerk, and not the county commissioners 

### court,with the 

### exclusive authority to dictate to his or her deputies, the responsibility of carrying out the clerk’s constitutional and statutory duties, including the designation ofexactly what constitutes record keeping, preservation, and automation inthe county clerk’s office.“23 On the basis of the county clerk’s authority to manage records within the county clerk’s office and the county clerk’s authority to appoint and direct deputy clerks, the majority opinion concludes that the commissioners court’s attempt to designate records management duties and responsibilities ofdeputy clerks constituted animproper interference with the constitutional and statutory functions ofthe county clerk. The concurring opinion, although agreeing with the majority opinion inits conclusions, takes anarrower approach. It emphasizes that the commissioners court exceeded its authority when it

designated not only specific records preservation projects in the County Clerk’s office (an action within its discretion) but also designated specific employees and the percentage oftheir salaries and benefits who and which it required to be paid out of the records preservation fund as well (an act beyond its discretion).24 The concurring opinion also states

it is the duty and the responsibility of the County Clerk to designate what constitutes preservation ofrecords and automation inhis office and to assign his employees specific tasks. He does not, however, have the unbridled discretion toexpend money out ofthe Records Management and Preservation Fund as he sees fit. It is the Commissioners Court that has the budgetary duty and responsibility ofallocating allcounty funds, including ear-marked funds such

“Id. (emphasis in original)

“ld. at534.

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as the one involved here. In order to carry out this duty, it necessarily follows that the Commissioners Court must make the initial determination from information furnished by the County Clerk and/or from its own independent study ofwhat kinds ofwork constitute “preservation ofrecords and automation.” See Tex. Att’y Gen. LA-81 (1992).*’ From our perspective, 

### Hooten is adifficult case. A footnote inthe majority opinion may be read to disagree with one ofour opinions, Letter Opinion No. 92-81, but does not expressly overrule it?6 On the other hand, the concurring opinion, which deals directly with the issue of authority to make expenditures, relies on that letter opinion forthe proposition that only the commissioners court has the authority to allocate funds and that the commissioners court must make the initial determination regarding what work constitutes records preservation and automation.27 Based on the 

### Hooten case, we believe that we must modify our prior opinions to the extent they suggest that the county clerk has no role in deciding how funds in a section 118.0216 account are used. We believe that the majority opinion in 

### Hooten requires both the county clerk and the commissioners court to have arole in that decision. While only the commissioners court has the authority to allocate funds inasection 118.02 16account, the commissioners court cannot dictate how work is done in the county clerk’s office orwho does it. In other words, despite its control over the county budgeting process, the commissioners court isnot authorized to dictate how the county clerk carries out his orher constitutional and statutory duties. Unless acounty clerk has delegated records management duties to the county records management ofIlcer,28 records management in the county clerk’s office iswithin that officer’s sole discretion. Onthe other hand, the county clerk has no power to allocate section 118.02 16 monies. The authority to allocate these funds lies with the commissioners court alone, subject tojudicial review for abuse of discretion. In sum, 

### Hooten indicates both that funds may not be allocated from a section 118.0216 account unless the commissioners court approves the expenditure and that arecords management and preservation project may not be undertaken in the county clerk’s office unless the county clerk approves it and directs his or her deputies to undertake it. Thus, as a practical matter, both the commissioners court and the county clerk must ultimately agree on the use of section 118.0216 monies, We do not believe, for example, in answer to Mr. Lockhart’s question, that it would be proper for acommissioners court to enter into acontract forrecords automation orpreservation inthe

‘Vd. at532 11.14,

531-32. 2’ld. at534

“‘Again, weassume thatrhecountyclerksinyourcountieshavenotdelegated~eirrecordsmanagementduties to the county records management officer.

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office of the county clerk that the county clerk does not approve, for the effect of such an action would be to dictate how the county clerk carries out the constitutional and statutory duties of that office. Nor, in answer to Mr. Herrington’s question, do we believe itisproper for acommissioners court to insist on continuing funding of arecords automation orpreservation project that the county clerk no longer approves. We now address the second issue raised by your requests. As we have noted, section 118.02 16ofthe Local Government Code designates the “Records Management andPreservation” fee authorized by section 118.011 “for the records management and preservation services performed by the county clerk 

### after thefiling andrecording of

### adocument inthe records ofthe office ofthe clerk.” (Emphasis added.) The language ofthis provision reflects the traditional method whereby the clerk records instruments in a“well-bound book,” see Local Gov’t Code $5 191.002, 193.001, ,003, and records management and preservation will occur later, forexample, when the paper records are stored under conditions that will prevent deterioration or are copied in amore permanent media. However, the legislature has expressly authorized acounty clerk to use amicrofilm process to maintain records. 

### Id. 5 193.008(a); see 

### id. ch. 204.*9 In that case, “[tlhe clerk shall record each class of record on a separate series of rolls of microfilm.” 

### Id. $ 193.008(c). “Each roll of microfilm. is considered to be abound volume orbook.” 

### Id. Microfilm may be used to maintain and preserve public records pursuant to chapter 204 ofthe Local Government Code. 

### Id. 5204.002. The use ofmicrofilm merges the recording process with the process ofpreserving and maintaining records. Under such circumstances, may the records management andpreservation feebeused topay for the microfilming ofthe instruments? The legislature has expressly authorized, and in fact encouraged, county clerks and other custodians ofrecords to use microfilm to maintain records. Using a single process to both record and preserve documents promotes efficient records management. Itisboth inefficient and absurd to conclude that the records management andpreservation fee may be used topay formicrofilming documents only ifthe clerk first records them manually in abook. Statutory provisions will not be construed asto lead to absurd conclusions ifany other construction can reasonably be indulged in. 

### Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942). The word “after” should not be so heavily emphasized that we are compelled to reach anabsurd and inefficient result. Accordingly, acounty is not prohibited from spending the records management and preservation fee on using microfilm technology to record documents ifthe use ofmicrofilm iswithin a“specific records management and preservation project[].”

“Local government records may also be maintained electronically. See Local Gov’t Code 5201.004

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Acounty clerk also collects fees “fortiling ortiling and registering [orrecording], including indexing” jO documents authorized orrequired tobe filed in the personal property orreal property records ofthe county.” These basic tiling fees must be deposited with the county treasurer’* and allocated by the commissioners court aspart ofthe county budget process.” Pursuant to section 152.011 of the Local Government Code the commissioners court is responsible for setting the compensation, office and travel expenses, and other allowances forcounty and precinct officers and employees paid wholly from county funds, including the compensation, office and travel expenses ofthe county clerk.34 Mr. Clower asks whether the amount of filing fee revenue collected under the Local Government Codej5 for tiling, recording, and indexing real and personal property records is “dedicated” for payment to the third party vendor that provides microfilming equipment and services for these purposes when the records are tiled with the clerk.j6 None ofthe statutes cited require such a dedication of the fees, nor are we aware of any other basis for requiring their dedication.)’ We reiterate that section 118.0216 requires the records management and preservation fund tobe spent for specific records preservation and automation projects, subject tothe commissioners court’s advance approval of such expenditures, and the fund may not be diverted from its statutorily assigned purposes topay other expenses ofthe clerk’s office. Ifthe use ofmicrofilming technology meets the criteria set out in article 118.0216, the records management and preservation fee may be used to fund it.

“Local Gov’t Code $5 118.012, ,013

“Seeid. $5 118.011(a)(l), (2), ,012, ,013.

‘?See Tex. Const. art. XVI, $6 l(fees earned by district, county, and precinct officers shall be paid into county treasury in counties where county officers are compensated on a salary basis); Local Gov’t Code 5 113.001.

“See Local Gov’t Code $5 111.003, .004(b)(2).

‘%SeeAttorney General Opinion H- 1243 (1978) at 2

“Local Gov’t Code $ 118.011(a)(l), (2).

“An attempt to dedicate those funds might also raise an issue under article III, section 52 of the Texas Constihltion, which places certain conditions on the expenditure of public funds by political subdivisions in order to insure that the expenditure serves public purposes. Attorney General Opinions DM-317 (1995), JM-1030 (1989). Among other limitations, apolitical subdivision must receive an adequate return for its expenditure of public funds. Attorney General Opinions DM-3 17(1995), JM- 1030 (1989). This limitation might well be violated by the dedication of arevenue SOUIC~

to aparticular contract unless payments are limited to the value of services received.

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Finally, we note that section 118.0216 of the Local Government Code does not define “specific records preservation and automation projects.” Alegislative definition ofthis term aswell as additional legislative clarification of section 118.0216 asto the use ofthe records management and preservation fee would greatly assist the counties in applying this provision. SUMMARY Neither the commissioners court nor the county clerk controls the use of the records management and preservation fees collected under section 118.0216 of the Local Government Code. As apractical matter, both must agree on the use ofthe funds. Funds collected under section 118.0216 may be used to pay for the costs of initially recording documents by microfilm, but only ifthe commissioners court determines that this process ispart of a specific records preservation and automation project within section 118.02 16 ofthe Local Government Code. The records management and preservation fee must be spent for specific records preservation and automation projects, subject to the commissioners court’s advance approval, and may not be diverted from its statutorily assigned purposes to pay other expenses of the clerk’s office.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Mary R. Crouter and Susan L. Garrison Assistant Attorneys General

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