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 16 records 

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 or the county clerk controls the use of funds 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 of recording documents by microfilm 

as they are initially tiled. We conclude that section 118.0216 funds may be used to pay for the costs 

of recording documents by microfilm, but only if certain conditions are met. 

‘We assume that the county clerks in your counties have not delegated their records management duties to the 

county records management officer under Local Government Code section 203.005(g). 
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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 or the county clerk decides how the records management and preservation fee 

is used. Apparently, the commissioners court in his county allocated a portion of the funds collected 

under section 118.0216 for microfilming records. He informs us that “[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 in his county approved the request of the county clerk to expend section 118.0216 monies to 

lease certain equipment for use 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 in the clerk’s office, ifthe commissioners court determines that this process is a specific 

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 of a document in the records of the 

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 the records tiled in the clerk’s office using 

a camera and film provided by a third party vendor. The clerk sends the microfilm to the 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 to the 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 of the 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 of this office. See Attorney General Opinions DM-440 (1997), H- 17 l(l973); Letter Opinion 

No. 93-91 (1993). 

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Local Government Code section 203.003(5) requires a commissioners court to “establish a county 

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 of this office, all dating from 1992: address control of funds collected 

under section 118.0216. The conclusions of these 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 1 18.0216.7 The commissioners court is responsible for allocating the 

monies collected, but may expend them only “for specific records preservation and automation 

projects” in the office of the county clerk.* The determination whether a particular project will aid 

in preserving or automating county clerk records must be made by the commissioners court in the 

first instance.’ Decisions regarding records management and preservation fee fund expenditures are 

not within the sole discretion of the county clerk.“’ 

In 1993, an appellate court addressed control of funds 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 a dispute between the commissioners court and county clerk in El Paso 

County. The commissioners court attempted to allocate section 118.0216 funds to the 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). 

*See Letter 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 5 203.003(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, X63 S.W.2d at 525-26, 

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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 16 account. The goal 

was to create a surplus in the county clerk’s general fund account that could then be transferred to the 

county general fund account for the county records department.” After the completion of the study, 

the commissioners court “designated specific records preservation and management functions that 

were to be performed by those deputies appointed by the County Clerk”14 and “designated that those 

deputies be paid from the proceeds of the dedicated [section 118.0216] fee account.“‘5 

The majority opinion’s analysis is based on a review 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 a policy-making determination left to the 

sound discretion of the 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 or created by his constitutionally-created office”” pursuant to the 

Local Government Records Act, see Local Gov’t Code chs. 201-205. Such a county clerk “has the 

exclusive and absolute discretion to develop policies and records management procedures that will 

preserve permanent records in the most efficient and cost-effective manner, as such 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. at 526. 

“Id, 

“Id. at 527. 

‘5Id. 

‘6ld. at 529, 

“Id. at 530 

“id. 

“old. at 531 

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court in managing the records of the elected officers is largely 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 of exactly what constitutes record keeping, preservation, and automation in the 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 of deputy clerks constituted an improper interference with the constitutional and 

statutory functions of the county clerk. 

The concurring opinion, although agreeing with the majority opinion in its conclusions, takes 

a narrower 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 of their 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 of records and automation in his office and to assign 

his employees specific tasks. He does not, however, have the unbridled 

discretion to expend money out ofthe Records Management and Preservation 

Fund as he sees fit. 

It is the Commissioners Court that has the budgetary duty and 

responsibility of allocating all county funds, including ear-marked funds such 

“Id. (emphasis in original) 

“ld. at 534. 

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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 of what kinds of work constitute “preservation of records 

and automation.” See Tex. Att’y Gen. LA-81 (1992).*’ 

From our perspective, Hooten is a difficult case. A footnote in the majority opinion may be 

read to disagree with one of our 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 for the 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 a role in that decision. While only the commissioners court has the 

authority to allocate funds in a section 118.02 16 account, the commissioners court cannot dictate how 

work is done in the county clerk’s office or who does it. In other words, despite its control over the 

county budgeting process, the commissioners court is not authorized to dictate how the county clerk 

carries out his or her constitutional and statutory duties. Unless a county clerk has delegated records 

management duties to the county records management ofIlcer,28 records management in the county 

clerk’s office is within that officer’s sole discretion. On the 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 to judicial 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 a records 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 a commissioners court to enter into a contract for records automation or preservation in the 

‘Vd. at 532 11.14, 531-32. 

2’ld. at 534 

“‘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 it is proper for a commissioners 

court to insist on continuing funding of a records automation or preservation 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 16 ofthe Local Government Code designates the “Records Management and Preservation” fee 

authorized by section 118.011 “for the records management and preservation services performed by 

the county clerk after thefiling and recording of a document in the records of the office of the clerk.” 

(Emphasis added.) The language of this 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, for example, when the paper records are stored 

under conditions that will prevent deterioration or are copied in a more permanent media. 

However, the legislature has expressly authorized a county clerk to use a microfilm 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 a bound volume or book.” Id. Microfilm may be used to maintain 

and preserve public records pursuant to chapter 204 of the Local Government Code. Id. 5 204.002. 

The use of microfilm merges the recording process with the process of preserving and maintaining 

records. Under such circumstances, may the records management and preservation fee be used to pay 

for the microfilming of the instruments? 

The legislature has expressly authorized, and in fact encouraged, county clerks and other 

custodians of records to use microfilm to maintain records. Using a single process to both record 

and preserve documents promotes efficient records management. It is both inefficient and absurd 

to conclude that the records management and preservation fee may be used to pay for microfilming 

documents only if the clerk first records them manually in a book. Statutory provisions will not be 

construed as to lead to absurd conclusions if any 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 an absurd and inefficient result. Accordingly, a county 

is not prohibited from spending the records management and preservation fee on using microfilm 

technology to record documents if the use of microfilm is within a “specific records management 

and preservation project[].” 

“Local government records may also be maintained electronically. See Local Gov’t Code 5 201.004 

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A county clerk also collects fees “for tiling or tiling and registering [orrecording], including 

indexing”jO documents authorized or required to be filed in the personal property or real property 

records of the county.” These basic tiling fees must be deposited with the county treasurer’* and 

allocated by the commissioners court as part of the 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 for county and precinct officers and 

employees paid wholly from county funds, including the compensation, office and travel expenses 

of the 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 of the 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 

to be spent for specific records preservation and automation projects, subject to the commissioners 

court’s advance approval of such expenditures, and the fund may not be diverted from its statutorily 

assigned purposes to pay 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). 

‘%See Attorney 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, a political 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 a revenue SOUIC~ to a particular 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.” A legislative definition of this term as well 

as additional legislative clarification of section 118.0216 as to the use of the 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 a practical matter, both must 

agree on the use of the funds. Funds collected under section 118.0216 may 

be used to pay for the costs of initially recording documents by microfilm, 

but only if the commissioners court determines that this process is part of a 

specific records preservation and automation project within section 118.02 16 

of the 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 of Texas 

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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