.’

                THEATTORNEY                   GENERAL
                               OF   TEXAS


  WLL    WILSON
ATTORNEY   GENERAL      February 2,   1960

     Honorable Tom Blackwell        Opinion No. WW-793
     Cou~ntyAttorney
     Travis County                  Re:     What original records
     Austin, Texas                          In the office of the
                                            District Clerk may be
                                            destroyed under the
                                            provisions of Art:!cle
                                            6574b, Vernon's Civ!l
     Dear Mr. Elackwell:                    Statutes.
              We have received your request for an opinion on
     the following questions:
              1. Do "original public records" as that
              phrase Is used In Article 6574b, Vernon's
              Civil Statutes, include filed pleadings,
              citations, executions, Writs of Injunction,
              garnishment, attachment, and other such
              writs, drafts or orders, and any other in-
              struments that might be filed in a civil
              case, and indictments, drafts or orders,
              and all other pleadings or Instruments that
              might be filed in a criminal case.
              2. In what Instances would the clerk be
              barred from destroying public records "until
              the time for filing legal proceedings based
              on any such record shall have elapsed' as
              provided In Article 6574b, Vernon's Civil
              Statutes?
              The Court in State ex rel Kavanaugh v. Henderson,
     Supervisor of Liquor Control, 169 S.W. 2d 389 (MO. 1943)
     stated:
              "Where, by law or regulation, a document is
          required to be filed in a public office, the
          document is a 'public record' . . .'
              Words and Phrases_,Volume 35, page 318,     contains
     the following definition:
              "Judgment roll, files, papers, and orders in
          case are 'judicial records', 'public writings',
          and 'public records' within statutes . . .rr
Honorable Tom Blackwell, page 2 (W-793)


         We again find in Words and Phrases, Volume 3.5,at
page 26 of the pocket part:
         "Defendant's pleadings and papers,
     which were Involved in civil action and
     which were in custody of county clerk as
     ex officio clerk of superior court in
     which action was pending, were 'public
     documents' . . .'
         In view of the above, it Is the opinion of this
Department that filed pleadings, citations, executions,
writs of injunction, garnishment, attachment, and other
such write, drafts or orders, and any other Instruments
that might be filed in a civil case, and indictments,
drafts or orders, and all other pleadings or instruments
that might be filed in a criminal case are original public
records within the purview of Article 6574b, Vernon's Civil
Statutes.
       ,' Article 6574b,   Vernon's Civil Statutes, provides
in part as follows:
         "Section 1. The Commissioners Court of
     any county In Texas, or the governing body of
     any political subdivision of Texas, may, at
     its discretion, order, authorize and provide for
     the duplication of all public records by photo-
     static, photographic, miniature photographic,
     film microfilm or microphotographic process
     which correctly and legibly copies and repro-
     duces, or which forms a medium of copying or
     reproducing, such public records, when, in the
     judgment of a Commissioners Court, or of the
     governing body of any political subdivision of
     Texas, a necessity exists for the photographic
     duplication of said public records for the pur-
     pose of recording, preserving and protecting
     same, or for the purpose of reducln& space requir-
     ed for filing, storing and safekeeping of same,
     or for any similar purpose.
         II
          . . .
         "Sec. 4.  Said photographic duplicates of
     all public records shall be placed in convenient-
     ly accessible files and provisions shall be made
Honorable Tom Blackwell, page 3 (Ww-793)


    for preserving, safekeeping, using, examining,
    exhibiting, projecting, and enlarging the same
    whenever requested during regular office hours.
    Whenever protographic duplicates of public records
    are so made, certified and placed, the original
    public records may be, by order of the Commission-
    ers Court of the county, or of the governing body
    of any political subdivision of Texas, destroyed or
    otherwise disposed of, provided, however, that no
    original record shall be destroyed or otherwise dis-
    posed of unless or until the time for filing legal
    proceedings based on any such record shall have
    elapsed, and, in no event shall any original nubzic
    record be destroyed or otfierwlsedisposed ofuhtll
    said public record Is at least five (5) years old;
    and provided further, that notice of such proposed
    destruction or disposition of original public re-
    cords shall first be given to the State Librarian,
    and If such records are, in his opinion, needed
    for the Texas State Library, they shall be trans-
    ferred thereto in the manner provided in Article
    5439, Revised Civil Statutes, 1925.

        "Sec. 5. Nothing in thls Act shall authorize
    the destruction or disposition of any deed record,
    deed of trust record, mechanic's 12en record or any
    minute book of any Court or any minute book of any
    political subdivision of Texas.
        II
         . . .
        "Sec. -7. Said photographic duplicates of public
    records shall be deemed to be an original record for
    all purposes, including introduction in all Courts
    or adminlstrative agencies. A transcript, exemplifi-
    cation, or certified copy thereof shall, for all pur-
    poses recited herein, be deemed to be a transcript,
    exemplification or certified copy of the original.
        II
         . . .
        "Sec. 10. The fact that the courthouses in many
    of the counties of this State are now greatly burden-
    ed by old a+idvalueless records, which condition is
    growing more serious all the time; and the fact that
    the said records are a fire hazard in many courthouses;
    and the further fact that the space used for keeping
    such old redords is needed for new material and for
    other purposes create an emergency. . . .' H.B. 304,
Honorable Tom Blackwell, page 4 (W-793)


          Acts of the 50th Leg., Ch. 58, p. 811.
         In view of the provisions under Section 1 of
Article 6574-b that all public records may be destroyed if
properly duplicated as set out in said statute   and that,
under Section 7, Article 657413, the public records proper-
ly duplicated may be considered orig-i.nal public records for
all purposes and can be used when needed as the bas:~sof
any action which may be maintained it appears that the
phrase or provision under Section 4, Article 6574b, "unti~l
the time for legal proceedings based on any such recmrd
shall have elapsed" has little meaning, and any discussion
of th1.ssubject would be of almost infinite range and pure1
academic. Further, the provision of Section 5, Artli~cle     r
                                                          6571~b,
that no deed record, deed of trust record, mechanic's lien
record or minute books of any court or any minute book of any
political subdivision of Texas may be destroyed, and Section
!C,Article 6574b, that five (5) years must have elapsed before
any public records may be destroyed, provide safeguards against
the indiscriminate and useless  destruction of public records.
         The phrase "until the time for filing legal proceed-
ings based on any such record has elapsed" could conceivably
cause the fallacious conclusion that orl~ginalpublic records
could not be destroyed under any condition as a case of re-
cord could altlaysbe attacked on some tenuous theory or prin-
ciple of law: It is our opinion that any such construction
would defeat the purpose of this act and it is abundantly
clear that th:~sconstruction was not intended by the Legisla-
ture.
         It is true that there is the occasional suit or ac-
tion which may still be pending at the end of five (5) years
or one on which an acti.onwould probably be maintained, and
that use of the original public papers would be more practi-
cal and convenient, and in these cases, it would perhaps be
wise for the Commissioners' Courts or governing bodies, as
the case might be, to delay the destructi~onof these records;
but, it is felt that the majorit of case files and papers
could be destroyed after five (53 years with little likcli-
hood of further action. In that event, the duplicated records
would always be available for use as original records.
         It can readily be seen from thk:above quoted emcrgenq
clause, Section 10 of House Bi~ll304, Acts of the 50th Letisla-
ture, that it was the intentl~onand purpose of the Legislature
that old and valueless    records be destroyed after being proper-
ly duplicated for use as origIna records in order that ad-
ditional space in courttouses    over Texas may be made avail-
able.
.




    Honorable Tom Blackwell, Page 5 (w-i%)


             The general purpose and intent of any Statute
    is controlllng, and it has been said that:
             II
              . . . In cases of ambiguity, the intent
         and spirit of the act will prevail over its
         letter. Thus it is settled that the inten-
         tion of the Legislature (R 90) controls the
         language used by it, and in construing a
         statute the court is not necessarily confined
         to the literal meaning of the words used, es-
         pecially in respect of isolated or particular
         provisions; the intent rather than the strict
         letter of the act will be regarded. . . .'
         39 Tex. Jur. 180,181, Statutes, Sec. 9.5.
            And, further:
            II
             . . . in construing a statute   it   fre-
        quently happens that a word or phrase must be
        added to, or eliminated from, a particular
        part OP section in order to carry out the mani-
        fest intentn as disclosed by the entire enact-
        ment. . . .   39 Tex. Jur. 165, Statutes,     sec.
        97. (Emphasis ours).
             It   also follows that:
            ,I
             . . . a statute    be construed as a whole
        and that all of its parts be harmonized, if
        possible, so as to give effect to the entire
        act according to the evident intention of the
        Legislature. . . . It means also that the court
        will endeavor to reconcile the various    provisions
        of the act, in so far as they may appear to be
        conflicting or inconsistent, to the end that the
        enactment and every word, phrase, clause and sen-
        tence may have its proper effect.
            II
             . . . Thus in case of doubt as to the mean-
        ing of a particular word, clause, provision or sec-
        tion, it is to be viewed in the light of all the
        language employed. It follows that a provision
        will not be given a meaning out of harmony with
        other provisions and inconsistent with the pur-
        pose of the act, although it would be sssceptible
        of such construction if standing alone.      39 Tex.
        Jur. 209-212, Statutes,    Sec. 113.
Honorable Tom Blackwell, page 6 (WW-793)



          It is therefore the opinion of this Depart-
ment that the provision in Article 6574b that no
original records may be destroyed until the “time for
filing legal proceedings based on any such record
shall have elapsed” is not controlling in relation to
this statute and that original public records, other
than any deed record, deed of trust record, mechanic’s
lien record or any minute book of any court, or any
minute book of any political subdivision of Texas,
may be destroyed according to Article 6574b, when the
following   conditions have been complied with: (1)
when in the judgment of the Commissioners’ Court or other
governing bodies a necessity exists; (2) when the re-
cords have been pro erly duplicated in a manner set out
in sa-ldstatute;   (37 when said public records are five
(5) years old; and (1:)when notice of said destruction
is given the State Librarian, and if such records are,
in his opinion, not needed for the Texas state Library.



         “Original public records” as the
         phrase is used in Article 6574b,
         Vernon’s Civil Statutes,  includes
         all filed papers and documents which
         may be filed in any civil or criminal
         action in the Courts of Texas,   ex-
         cept those in .adoption proceedings
         and other suits designated by statutes
         not to be public records. In view of
         the provision in Article 6574b, Ver-
         non's Civil Statutes, that records
         properly duplicated before destruction
         are deemed to be original.records for
         all purposes, the further provision in
         said statute  that no records can be de-
         stroyed until the “time for filing
         legal proceedings based on any such
         record shall have elapsed” is not con-
         trolling in relation to this statute,
         as it is “out of harmony” with, and
         would defeat, the purpose of the act,
         and the clerks may disregard this
,




    Honorable Tom Blackwell, page 7 (WW-793)



               provision when other provisions
               of the Act have been complied with.

                               Yours very truly,
                              WILL WILSON
                              Attorney General of Texas



                                  Iola B. Wilcox
                                  Assistant
    IW:mg:ms
    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Ralph Rash
    W. Ray Scruggs
    Robert H. Walls
    L. P. Lollar
    REVIEWED FOR TH!3ATTORNEY GENERAL
    BY: Leonard Passmore
