                   THE    ATTORB~EY         GENERAL
                               OF   TEXAS


                               September 17, 1990



     Honorable Mike Driscoll        Opinion No.   JM-1224
     Harris County Attorney
     1001 Preston                   Re: Whether information relating
     Suite 634                      to criminal cases is subject to
     Houston, Texas 77002           disclosure and related questions
                                    (RQ-1482)

     Dear Mr. Driscoll:

          You ask nine questions regarding the operation of the
     Harris County computer system and the authority of a board
     created by the Harris County Commissioners Court to manage
     the system. The questions stem from disagreements over the
     control of and access to information stored in the computer.
     Before considering your questions, we will briefly    review
/"   the factual information supplied by your office and others.

          In October of 1977 the commissioners    court created a
     county department called the Justice Information Management
     System (JIMS), evidently  for the purpose   of operating  and
     maintaining the county's central computer      system.1   The
     duties of the department include, among other things, the
     programming of the central computer to meet     the needs of
     those county offices with authorized access to the system,
     the training of county officials and employees in the use of
     the computer,  and the assignment of passwords and trans-
     action codes to control access to information stored in the
     computer.  Some of these tasks are performed in conjunction
     with the county data processing department.

          Your request for this opinion is prompted by the use of
     the county computer to collect and maintain      information
     regarding pending and closed criminal cases. You inform us
     that the district clerk, the district attorney, the county
     sheriff, the county criminal courts, the county pre-trial



          1. As we understand   it, the central computer is the
     only electronic data processing  resource available to most
     county offices.
r
Honorable Mike Driscoll - Page 2   (JM-1224)




services agency, the county adult probation department    and
juvenile probation department,  justices of the peace,    and
county constables all store information concerning   criminal
cases in the computer.  Though controls are programmed   into
the system by JIMS and the data processing       department,
information  originally  collected  and entered    into   the
computer by one agency may later be retrieved and updated by
other agencies or be integrated with information    collected
by other agencies. These conditions have raised questions
concerning  the "custody" and control      of criminal   case
information stored in the county computer.

     The commissioners court appointed an executive board to
oversee the operation of JIMS and the computer system. The
board was specifically empowered to "establish    and audit
security codes" and to "authorize data elements to be
entered and to whom they shall be distributed."          The
board's membership is composed of the administrative   judge
of the district courts trying criminal cases, the presiding
judge of the county criminal courts at law, a judge of one
of the family district    courts, a judge of one of the
juvenile district  courts, a justice of the peace, the
district attorney, the district clerk, the county   sheriff,
and a county constable.

     In 1985 the JIMS executive board executed an agreement
with the Texas Department  of Public Safety (DPS) regarding
access to the Texas Law Enforcement        Telecommunications
Systems (TLETS), a statewide clearinghouse for information
collected and' exchanged  between law enforcement     agencies
throughout the state. The system, managed and operated      by
the DPS, provides local law enforcement agencies access to
the resources of the National Crime Information Center,    the
National  Law Enforcement   Telecommunications   System,   the
Texas Crime Information   Center, the vehicle    registration
files of the Motor Vehicle Division of the Texas Department
of Highways  and Public Transportation,    and the driver's
license files of the DPS.

     Among other things, the agreement between the JIMS
board and the DPS requires JIMS to abide by all applicable
state and federal laws, as well as any policies and pro-
cedures adopted by the administrators of the information
systems that comprise the network. Though the agreement    is
silent on the matter, the JIMS board apparently   interpreted
the agreement  to also impose on it the duty to ensure
compliance  by all users of the system.         Violation  of




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Honorable Mike Driscoll - Page 3        (JM-1224)




applicable policies may result in an immediate suspension of
service.2

     Security breaches at the county level prompted the JIMS
board to adopt security policies and procedures    governing
access to the computer system and retrieval of information
collected in criminal proceedings.   The board now requires
all persons with access to the system to execute a form
acknowledging that they understand the security policies and
that violation of the policies and procedures may result in
termination  of their employment.     The board also     has
instituted a policy of unilaterally   terminating access to
the computer  system by persons, offices, or departments
deemed in noncompliance   with the security policies.     In
1986, this policy was invoked against the office of the
district clerk for its refusal to execute the security
forms.

     With these facts in mind, we now proceed to your             first
set of questions.

        1.   If the district clerk enters         information
             contained    in     instruments,       pleadings,
             orders, and documents        in criminal     cases
             in   the   county's    computer     to    produce
             indices, registers     and dockets,     are   such
             electronic/computer      records public?      Does
             such information     constitute   exempt     crim-
             inal justice information?

        2.   Are such    computer    records part     of   the
             district   clerk*s   tofficial   records'?

     These questions  relate to the status of information
collected by the district clerk from court documents     and
transmitted to the county computer.    The information   the
district clerk transfers to the computer includes basic data
such as the defendant's name and date of birth, the name of
his attorney, and other information reflecting progress   of



     2. We are informed that the DPS, in the exercise     of
its discretion,   designated   the Harris County     central
computer system as the sole link to the TLETS network     in
Harris County. All local law enforcement agencies in Harris
County that receive TLETS, including those not affiliated
with the county government, must obtain access to the system
through the Harris County computer.




                                  P. 6487
Honorable Mike Driscoll - Page 4 (JM-1224)




the defendant's case through the court system. The district
clerk maintains the original documents from which the infor-
mation was obtained, a microfilm  or microfiche copy of  the
document, or both. With this information the district clerk
creates a number of separate documents including    indices,
case summaries, case status reports, calendars, and other
documents relating to pending or closed criminal cases.

     You have informed us of a case filed with the Texas
Court of Criminal Appeals that deals with issues similar to
the ones you pose. It is styled Houston Chronicle   Publish-
ino Co. v. The Honorable    Charles Hearn.  District Judae,
263rd District Court. Harris Countv. Texas, No.    20,998-01
(filed Nov. 22, 1989). At issue was an order of the admin-
istrative judge of the district courts of Harris County that
forbids the district clerk and county sheriff from disclos-
ing the street addresses or telephone numbers of any defen-
dant in any criminal case in the district courts until an
attorney is hired or appointed to represent the defendant.

     A newspaper  publisher  and a reporter   contested the
order. They attacked it as an infringement of their right
of access to court files under the First Amendment to the
United States Constitution  and article I, sections 8, 10,
and 13, of the Texas Constitution.     They filed a motion
before the Court of Criminal Appeals     for leave to file
application for writs of mandamus and prohibition.

      The Court of Criminal Appeals denied the motion without
written order'on March 7, 1990. As a result of this ruling,
the order of the district judge prohibiting the district
clerk and sheriff from releasing the specified    information
remains in effect.   It is inappropriate in an opinion of the
attorney general to review or interpret the orders of the
courts mandating that certain information be kept confiden-
tial. See. e.a     Open Records Decision No. 560 (1990). And
in light of the'possibility of further litigation on this
matter, we   will defer answering your questions     as  they
relate to records in the custody of the district clerk until
the matter is finally resolved.   If, following resolution of
this matter, you still require an opinion on the status of
the records of the district clerk, please      resubmit your
questions at that time.

        3.   What   criminal  history  information,     if
             any, which is maintained  or which may    be
             accessed  through the county's computer
             may be disclosed by the district       clerk
             and other county officials?




                               P. 6488
Honorable Mike Driscoll - Page 5   (JM-1224)




     We assume that by use of the term "criminal history
information" you refer to information relating to criminal
cases, the disclosure of which may be governed by state or
federal law and regulations.

     Federal law and regulations govern the dissemination of
criminal history record     information by agencies      that
collect, maintain,   and exchange such information       with
support provided by the      federal government    for   such
purposes. See 42 U.S.C.   § 3789g(c): 28 C.F.R.   § 20.21(b).
Criminal history record information is defined as

        information  collected by criminal    justice
        agencies on individuals consisting of iden-
        tifiable descriptions    and   notations    of
        arrests, detentions,   indictments,  informa-
        tions, or other formal criminal charges, and
        any disposition  arising therefrom,  sentenc-
        iw , correctional supervision, and release.
28 C.F.R. § 20.3(b). The federal regulations are intended
to protect individual privacy and to insure that criminal
history information, wherever   it appears,   is collected,
stored, and disseminated   in a manner that insures its
completeness, accuracy, and security. Id.520.1.

     State and local agencies maintaining and disseminating
criminal history  information with federal assistance     are
subject to certain restrictions   on dissemination set forth
in the federal regulations.      See id. 55 20.20 - 20.25.
These restrictions   do not     apply to criminal     history
information contained in court records of public     judicial
proceedings.  Id. 5 20.20(b)(3).   Thus, federal regulations
have no bearing on the disclosure       of criminal history
information in records of public judicial proceedings    that
are in the custody of the district clerk. There remains,
however, the issue of the disclosure     of information  from
court records under state law, an issue left unresolved    by
the Houston Chronicle v. Hearn case.     For this reason, we
are unable to answer your third question as it relates to
the district clerk at this time. We can answer the question
as it applies to other county and district offices.

     The federal regulations    described  here affect two
categories of criminal history information: (1) information
collected,  stored, and disseminated    by state or local
agencies, and  (2) information obtained    from any United
States Department   of   Justice criminal history    record
information system.




                             p. 6489
Honorable Mike Driscoll - Page 6   (JM-1224)




     The regulations affecting state and local operations do
not purport to make any criminal history information   confi-
dential, but authorize the states and local governments    to
determine the purposes for which criminal history      record
information may be disseminated pursuant to state law, exec-
utive order, local ordinance, or a rule, decision, or order
of a court. a       5 20.21(c)(3).   The regulations  do not
limit dissemination by a state or local agency of criminal
history information that originates from the agency   itself.
See Open Records   Decision No. 144 (1976). One regulation
allows dissemination to "individuals and agencies for any
purpose  authorized   by statute    . . . as construed     by
appropriate state or local officials     or agencies."    Id.
5 20.21(b)(2).   These provisions require consultation of the
Open Records Act, V.T.C.S. article 6252-17a, and interpreta-
tions of the act by the courts and this office.

     The availability   of information relating to arrests
under section 3(a) (8) of the Open Records Act was determined
in Houston Chronicle Publishinb Co. v. Citv of Houston     531
S.W.2d 177 (Tex. Civ. ADD. - Houston      rl4th Dist.1 i975).
writ ref'd n.r.e. oer curiam 536 S.W.22 559 (Tex: 19763;
and summarized in Open Record; Decision No. 127 (1976). The
holding in that case prohibits the disclosure to the public
of the chronological history of an individual's arrests   and
their disposition.   531 S.W.2d at 187-88.

     The federal regulations referenced    here also address
the dissemination of criminal history information   contained
in any United States Department of Justice criminal   history
information system, including NCIC. See 28 C.F.R.    58 20.30
- 20.38.   Dissemination   of criminal history    information
contained  in any such      system is authorized    in    four
instances. See id. 5 20.33.     In addition, the subjects   of
criminal historyxformation    are allowed access to their own
criminal histories.  Id. § 20.34; see Open Records   Decision
No. 565 (1990).   These regulations are not germane to the
office of district clerk, since it does not have access to
Department of Justice criminal history information   systems.
County offices that have access to such systems must, of
course, abide by federal regulations and policies in order
to receive assistance from the information systems. See 28
C.F.R. 5 20.36.

     Consequently, county officials   are not required    to
disclose  to    the public   criminal history    information
maintained on the Harris County computer system that is
collected by a county or district office, even if acquired
without the assistance of any Department of Justice criminal
history information system.  Information obtained from these




                              P. 6490
    Honorable Mike Driscoll - Page 7    (JM-1224)


P




    federal sources may    be   disseminated   in   accordance   with
    federal regulations.

         State law also addresses the collection and dissemi-
    nation of criminal history   information by criminal   justice
    agencies.  Chapter 60 of    the Code of Criminal    Procedure,
    articles 60.01 through 60.09, was enacted by the 71st Legis-
    lature and became effective    on September 1, 1989.      Acts
    1989, 71st Leg., ch. 785, 5 6.01 at 3548. It delegates      to
    the Texas Department of Criminal Justice (TDCJ) the respons-
    ibility of establishing    a data base for a centralized
    criminal history   record information   system.    Code Crim.
    Proc. art. 60.02(a).    The DPS is given the duty of main-
    taining a data base for a computerized       criminal history
    information system that serves as a "record creation point"
    for criminal history   information maintained   by the state.
    Id. art. 60.02(b).

         Under chapter 60, criminal justice agencies are expect-
    ed to maintain and report to the TDCJ and the DPS specified
    information relating to criminal cases, with certain  excep-
    tions.   See L    arts. 60.05, 60.06(a).   Criminal  justice
    agencies must also provide other criminal justice agencies
-   with access to their own criminal history        information
    systems. The duties imposed on criminal justice agencies by
    article 60.06 are also imposed on the clerks of the district
    and county courts. &    art. 60.06(e).

         Information on an individual collected by the TDCJ and
    the DPS from criminal justice agencies and stored in a
    central location that consists of

            an identifiable description   and notation  of
            an arrest, detention,    indictment,  informa-
            tion, or other formal criminal charge and a
            disposition  of the charge including sen-
            tencing, correctional  supervision,   and re-
            lease . . . is not subject to public dis-
            closure except as authorized by federal or
            state law or regulation.3




         3. This language parallels the definition of "criminal
    history record information" found at title 28, section 20.3,
    of the Code of Federal Regulations and quoted in a preceding
-   paragraph.




                                   P* 6491
Honorable Mike Driscoll - Page 8        (JM-1224)




Id. art. 60.06(b). This limitation does not apply to a
document of a criminal justice agency that is the source of
information collected by the TDCJ.      Id. art. 60.06(C).
Similarly, an individual's criminal history record may    not
be disclosed  to the public by either a criminal      justice
agency or the Criminal Justice Policy Council if the record
is protected by state or federal law or regulation.       a
art. 60.03(b). Chapter 60 thus requires an examination      of
other state and federal laws governing        disclosure    of
criminal history  information.  See aenerally   Open Records
Decision No. 565 (1990).

        4.   Who is the   \custodian*      of all or portions
             of the records    contained     in the  county's
             computer?

     This question is prompted by general concerns over the
control and B1custody** of information stored in the county
computer.  The JIMS board, you advise, contends it is the
custodian of all information housed in the county computer
and is thereby authorized to determine who may have access
to that information.    You emphasize that the question     of
control is significant because computer programming allows a
county office to manipulate information      in the computer
files of other offices simply by updating information in its
OWn computerized   records.    The example you give is a
notation in the records of a court that a defendant in a
criminal case is released on personal recognizance.       Once
this information is entered into the court's or the district
clerk's computer  files, the computer system automatically
updates the information   in computer files created for the
same case by other county offices    (e.a., the county sheriff
or district attorney).   You acknowledge that this may be an
efficient use of the county computer, but you believe     that
it improperly wrests control from the hands of county
officers who may have a legal duty to retain control      over
such information.

     YOU argue    that county    officers,  designated   the
custodians of records of their respective    offices by the
Open Records Act, should retain control of information
maintained by their offices, including information housed in
the county computer. We agree with your conclusion,      but
note that the issue of control      is resolved by recent
legislation.

     Prior to 1989, there was little law expressly governing
the   establishment   or   operation   of       computerized
recordkeeping system for the use of coun:y or district
officers.  See. e.a., Code Crim. Proc. art. 2.26   (repealed




                                 P. 6492
Honorable Mike Driscoll - Page 9   (JM-1224)




in 1989, provided that commissioners court could authorize,
among other things, the electronic entry, storage, and
retrieval of records which the Code of Criminal    Procedure
requires county officers to keep); Gov't Code 5s 51.801 -
51.807   (authorizing the   electronic  filing of    certain
documents in district and county courts, subject to rules
and procedures   adopted by the Supreme Court of Texas).
Authority for the establishment of a computer system by a
commissioners court is now expressly recognized in the Local
Government Code.

     Subtitle C of Title 6 of the Local Government Code was
amended during the 71st Legislative Session and designated
the Local Government Records Act. Acts 1989, 71st Leg., ch.
1248, at 4996. Section     205.002 of the Local Government
Code, enacted as part of the Local Government Records Act,
provides that "[a]ny local government record data may be
stored electronically in addition to or instead of source
documents  in paper or      other media,"   subject to     the
provisions of chapter 205 of the Local Government Code and
rules adopted under it.      This provision   authorizes   the
storage of information     on computer.    Local Gov't Code
5 205.001(l) (definition of "electronic storage").      I'Local
government record data" is defined simply as any information
that comprises. a local      government  record under     law,
regulation, rule of court, ordinance,      or administrative
procedure.    Id.    § 205.001(2).    With   exceptions    not
applicable here, "local government   record data" is defined
to mean

        any document, paper, letter, book,         map,
        photograph,     sound  or   video    recording,
        microfilm, magnetic tape, electronic medium,
        or other     information   recording    medium,
        regardless of physical form or characteristic
        and regardless of whether public access to it
        is open or restricted under the laws of the
        state, created or      received bv a      local
        aovernment   or    anv of   its officers     or
        emolovees   vursuant to law, includina       an
        ordinance, or in the tranSaCtiOn Of DUbliC
        business.   (Emphasis added.)

Id. § 201.003(8).

     The term "local government"     includes, among other
entities,  a county,  "including all district and precinct
offices of a county."     Id. 5 201.003(7).    District and
precinct offices such as the offices of district   attorney,




                             p. 6493
Honorable Mike Driscoll - Page 10 (JM-1224)


                                                                -.


district clerk, justice of the peace, and constable       are
classified as county offices for the purposes of the act.

     The subject of control and custody of information  col-
lected by county officers and stored electronically in a
computer is addressed by the Local Government Records Act.
The act identifies three agents of county government -- the
commissioners  court,  Yecords   management  officers,"  and
"custodians" -- and prescribes    in careful detail their
duties regarding the management  and preservation of county
records. See id. §§ 203.001 - 203.003, 203.021 - 203.023.

     The "records management officer"  is either an elected
county officer or a person, office, or position   designated
by the governing body to serve in that capacity.    Seeid.
55 201.003(14), 203.001, 203.025. The duties of the records
management officer vary, depending on whether the particular
county office or department is elective or nonelective,   but
in either case the officer is made chiefly responsible    for
the administration of a records management program and the
protection  and preservation   of the records of       county
offices. See id. S§ 203.002, 203.023. The 18custodian1* of
records is the appointed or elected public officer who under
state constitution, state law, ordinance, or administrative
policy is in charge of an office that creates or receives
local government records. Id. § 201.003(2).

     A significant feature of the Local Government   Records
Act is its allocation of authority to develop and implement
a records management program -- h,    the policies, methods,
and procedures for the management and preservation of county
records. See id. §§ 203.005, 203.026. It is this aspect of
the act that settles the general question    of control  and
custody of information stored by computer.

     The commissioners court is responsible for establishing
a records management program for nonelective county offices.
See id. 55 203.021, 203.026. Elected county office&      are
designated  the "records management     officers"  for their
respective offices and are delegated preeminent authority to
develop and administer   the records management program   for
their offices.    In addition,  elected county officers  are
chiefly responsible for adopting records control schedules,
preparing  electronic   storage authorization   requests and
records destruction requests, and preserving and protecting
certain records of their offices. Id. 5 203.002.

     The elected county officer is given discretion to adopt
specific records management procedures   and techniques,  so     I,


long as they are consistent with regulations promulgated  by




                             P. 6494
,

        Honorable Mike Driscoll - Page 11 (JR-1224)




        the State Library and      Archives  Commission.   See+.
        55 201.003(l),  203.002, 203.005(b).    The commission
        required to adopt standards and issue regulations for tFZ
        microfilming of local government records and the electronic
        storage of local government record data of permanent value.4
        Id. S§ 204.004, 205.003.     It has discretion    to   adopt
        standards for the electronic    storage of records with a
        retention period of at least ten years. Id. 5 205.003.

             These provisions specifically address certain kinds of
        records and limit the discretion of elected county officers
        to adopt management    procedures   for those records.       We
        believe elected county officers have complete discretion     in
        adopting records management     procedures   for computerized
        records or information not covered by these provisions       --
        l.e., any computerized record or information that does not
        have a retention period prescribed by law or that has a
        retention period of less than ten years. If the State
        Library and Archives Commission   elects not to adopt stand-
        ards for the electronic storage of records with retention
        periods of ten years or longer, we think elected county
        officers would have authority to adopt reasonable    standards
        for those records as well. Moreover,        we think elected
    F   county officers have the implied authority      to prescribe
        reasonable security and control measures for any information
        received by their offices and stored electronically,      even
        those records covered by the commission's        rules.     Cf.
        Bullock v. Calvert, 480 S.W.2d 367       (Tex. 1972)   (public
        officers have implied power to achieve power or object
        expressly granted): V.T.C.S.    art. 6252-17a,   § 5(a)    (de-
        scribed below).

             The Local Government    Records Act anticipates     that
        elected county officers will establish      an    independent
        records management  program for their offices, but allows
        elected officers to delegate the administration       of the
        program to the office established by the commissioners court
        for nonelective county offices. Id. § 203.005(g).     Elected
        county officers may also delegate their responsibilities   to
        the records management  officer for nonelective offices    in
        lieu of adopting an independent program.    &    Applied   to
        Harris County, these provisions mean elected county officers



             4. A l*record of permanent value" is one for which the
        retention period issued by the commission (the time   during
        which the record may not be destroyed)        is given    as
        permanent.  Local Gov't Code § 201.003(10).




                                      P. 6495
                                                                ,

Honorable Mike Driscoll - Page 12 (JM-1224)




may delegate the performance of their duties under the Local
Government Records Act   to JIMS if it is designated     the
records management officer for nonelective offices in Harris
County.

     In the absence of such a delegation     of authority  by
elected county officers, the role of the commissioners court
in the management of the records of elected county officials
is largely supportive.   Id. 5 203.003 (commissioners   court
shall "promote," l'support,@' and "facilitate" the efficient
and economical   creation,    maintenance,  management,   and
preservation of the records of elective county offices).

     The primacy of elected county officers over the control
and preservation of the records of their offices is also
acknowledged in the Open Records Act. Section 5 of that act
was amended by the bill enacting the Local Government
Records Act to designate    an elected county officer    the
"officer for public recordsl' of the office. V.T.C.S.   art.
6252-17a,   5 5(a).  The officer for public     records   is
responsible under section 5 for ensuring the accessibility,
protection, and preservation of vublic records,    includina
records stored on computer.    See: e.a,, Attorney   Generai
Opinion JR-672 (1987).

     These provisions  clearly establish    that control   of
information created or received by elected county officers5
pursuant to law or in the transaction     of public business
remains with the elected officers even when the information
is stored in a computer system that serves all county
offices. These provisions   do not depart from established
law, but merely     reflect principles     that are    firmly
entrenched in the law of this state. &8 Familias Unidas v.
Briscoe, 619 F.2d 391, 404   (5th Cir. 1980) (elected county
officials in Texas hold "virtually absolute    sway over the



     5. By its terms, the Local Government      Records   Act
designates elected llcounty" officers as records management
officers  for   their respective    offices,  omitting    any
reference to elected district and precinct officers.   As we
noted earlier, however, distri,ct and precinct offices of a
county are treated as part of a county under the act.     Id.
5 201.003(7).  By extension, when the act speaks of elective
"county" offices, the legislature presumably    intended to
address elective district and precinct offices as well, at
least where these offices store information   on a computer
system shared with county offices.




                             P- 6496
    Honorable Mike Driscoll - Page 13 (JM-1224)




    particular tasks or areas    of responsibility   entrusted   to
    [them] by state statute").

         Where the duties of county officers are          clearly
    delegated by statute, the commissioners court has no power
    to displace the authority of such officers by the creation
    of an agency to perform such duties. &g Aldrich v. Dallas
    County, 167 S.W.2d 560 (Tex. Civ. App. - Dallas 1942, writ
    dism'd); Navarro County v. Tullos,   237 S.W. 982 (Tex. Civ.
    APP. - Dallas 1922,   writ ref'd);  Attorney General Opinion
    JM-1074 (1989). The commissioners court may not, moreover,
    confer on an agent or other officer authority the court may
    itself not exercise. Jones v. Veltmann, 171 S.W. 287    (Tex.
    Civ. App. - San Antonio     1914, writ ref'd).    An elected
    county officer's    assumption  of the powers and      duties
    conferred by the Local Government    Records Act effectively
    bars the commissioners   court or its agent from displacing
    the county officer from this position     of responsibility.
    See. e.a., Attorney General Opinion JM-1074 (1989).

         Accordingly, in answer to your fourth question we
    conclude that elected county officers in Harris County are
    charged by statute with the control, management, and preser-
P   vation of information created or received by their offices
    pursuant to law or in the transaction of public business,
    including information that is stored in the Harris     County
    computer system. V.T.C.S. art. 6252-17a; Local Gov't Code
    55 203.002, 203.005, 205.002.    Neither the commissioners
    court nor the agency created by it to manage the county
    computer system may deprive elected county, district,     and
    precinct  officers of    this authority.       Elected county
    officers may delegate certain of these duties to the office
    created by the commissioners court to manage the records of
    nonelective county offices. Ed. 5 2o3.oo5(g).6



         6. It should be notsd~that   article 60.09 of the Code
    of Criminal Procedure authorizes the commissioners court to
    appoint a "local data advisory board" to assist and advise
    the court on matters relating to the collection and transfer
    of criminal history  information at the county level.     The
    membership of the board parallels the membership of JIMS.
    See Code Crim. Proc. art. 60.09(b).     Because .the greater
    burden of compliance with chapter 60 falls on those officers
    eligible for appointment to the advisory board, we do not
    believe the authority to appoint advisory boards under
    article 60.09 constitutes supervening   authority to manage
                                             (Footnote Continued)




                                  P. 6497
Honorable Mike Driscoll - Page 14 (JM-1224)




        5.   What authority     does    the executive     board
             of   the   Justice     Information     Management
             System (JIMS) or the commissioners            court
             have to enforce any state and/or           federal
             statutes     relating       to    the     improper
             dissemination       of      ariminal       justice
             information    and to    require other      county
             departments    and/or officials      to adhere to
             security       and      privacy        guidelines
             promulgated   by the executive       board and/or
             commissioners    court?

     This question presumably relates to the security poli-
cies adopted by the JIMS board described    earlier in this
opinion.

     As the discussion of the preceding question made clear,
the primary responsibility to manage and control information
received by elective county offices is with elected county
officers and, for nonelective offices, with the commis-
sioners court. Likewise, we think the duty to observe     and
comply with relevant laws governing access and dissemination
of criminal justice   information rests with elected county
officers   for their    respective offices    and with    the      -\
commissioners  court for nonelective     offices.   We   have
located no authority,   including chapter 60 of the Code of
Criminal Procedure,    that would generally    designate  the
commissioners  court as the agency responsible       for the
enforcement of state or federal laws governing access to
criminal justice information stored in the county's computer
system.    It is not     inconceivable,  however,  that   the
commissioners court could, with the cooperation of elected
county officers, promulgate effective security policies that
preserve the power of elected county officers to manage   and
control the information collected    and generated  by their
offices.7
                 ,-~
(Footnote Continued)
the computerized   records of all county offices.     It is
therefore unnecessary to consider the effect of the possible
appointment of the JIMS board as the local data advisory
board under this provision.

     7. You have identified    an obvious solution to the
dilemma facing the county -- i.e., the installation        of
separate computer    systems   for   each    county   office.
Alternatively, the county might consider creating a separate
                                         (Footnote Continued)      1




                                  P. 6498
Honorable Mike Driscoll - Page 15 (JM-1224)




        6.   lfhat liability     may    the   JIMS    exeautive
             board incur if information         which is     con-
             tained in a computer system owned by Har-
             ris county and whiah        is used jointly       by
             the Harris     County     Sheriff,     the   Harris
             County     District      Clerk,      the      Adult
             Probation   Department,       the Harris     County
             Data Processing     Department,     and JIM8     and
             other     county      departments       for      the
             functions   of said respective         departments
             and   offices     and   JIM8    is   disseminated
             contrary    to    the   security     and    privacy
             guidelines    promulgated      by the    executive
             board,    the   commissioners       court    and/or
             other state and federal agencies?

     This question is not one that can properly be answered
by this office. Its speculative and fact-bound nature makes
it appropriate for your office to advise its clients   upon
the development of appropriate facts in particular   cases.
See Gov't Code 5 45.201.


        7.   Does the JIM8 executive board and/or com-
             missioners    court    have the    authority      to
             execute    an   agreement     with    the     Texas
             Department     of   Public    Safety    regarding
             access to the National Crime          Information
             Center   (NCIC)    operated    by   the    Federal
             Bureau of     Investigation      (FBI)    and   the
             Texas    Crime    Information     Center     (TCIC)
             operated    by    the   Texas   Department       of
             Public Safety on behalf of Harris           County
             and other local law enforcement           agencies
             that   have    access    to   Harris      County's
             computer?

     This question relates to the agreement executedby               the
JIMS board with the DPS described     at the fore of                this


(Footnote Continued)
computer system solely for the purpose of receiving       and
distributing criminal history information and information
from the TLHTS and NCIC networks that is accessible only by
the law enforcement agencies entitled to participate in the
networks.   The efficacy of a particular proposal,   however,
is a matter   for the discretion of the commissioners   court
and is beyond the province of this office to decide.




                                  P. 6499
                                                                 ,

Honorable Mike Driscoll - Page 16 (JM-1224)




opinion. Assuming    the DPS acted within   its authority   in
selecting the Harris County computer as the county's      link
with the TLETS system, we think the commissioners court had
the implied authority to execute the agreement in question.
See aenerally, 35 D. Brooks, Countv and Soecial District Law
5 5.13 (Texas Practice 1989). We also think the JIMS board
was authorized to execute the agreement on behalf of the
commissioners court, assuming the board was appointed      its
agent for that purpose pursuant to section 262.001(a)(3)    of
the Local Government Code. wsenerallv        Jackson -Foxworth
Lumber Co . v. Hutchinson County, 88 S.W. ;12 (Tex. Civ. App.
1905, no writ).

        8.   May the county enter into agreements with
             public and non-public user8 for  dial-up,
             direct computer access to records     con-
             tained in the  county's computer     without
             the ooneent of  the \custodian/s*    of   the
             original paper or microfilm/microfiche     of
             said records?

        9.   If the answer    to question   8 is yea,    is
             the \custodian*    responsible   and   liable
             for fees which may     be due for such   ser-
             vices?    Who is liable if the fees are not
             collected   for access to and/or copies     of
             such records?

     These questions   are   in reference    to a    program
authorized by~the commissioners court under which private
parties, typically law firms, are allowed direct access to
the county computer.    The firms are granted     access to
information maintained by the district clerk on civil and
family law cases in the district courts. Access to criminal
and juvenile   case information   is not authorized.     The
private users receive access essentially on a subscription
basis, paying the county fees for the training of the ukersl
employees, the assignment of sign-on codes;8nd   the amount
of time logged on the county system. The users supply their
own equipment and dedicated telephone lines.

     You note the apparent absence of law expressly  author-
izing the program you inquire about.8  In addition "dial-up"



     8. Sections 51.801 through 51.807 of the Government
Code authorize and govern the electronic filing of certain
                                        (Footnote Continued)




                                P. 6500
     Honorable Mike Driscoll - Page 17 (JM-1224)




     systems    are   particularly   vulnerable   to   entry   and
     manipulation by computer hackers and require additional
     security controls.     a    Agranoff,  Curb on    Technoloav:
     Liabilitv for Failure to Protect Comvuterized Data Aaainst
     Unauthorized   Access    5  Santa Clara    Computer  &   High
     Technology Law Journ; at 263, 280-86 (1989).

          We have previously    determined that elected   county,
     district, and precinct officers,    rather than the commis-
     sioners court or the JIMS department, are given the duty to
     manage and control the information received and generated by
     their offices and stored on computer.     In the absence of
     statutory authority, the commissioners court is not, in our
     opinion, authorized to grant members of the public access to
     the computerized records of elective county, district,     or
     precinct offices.9  In light of our answer to your eighth
     question, it is unnecessary to answer your final question.

                            SUMMARY

                Elected county, district,      and precinct
             officers in Harris County are charged by
             statute with the control, management,       and
             preservation   of   information    created   or
             received by their offices pursuant to law or
             in the transaction      of public     business,
             including information that is stored in the
             Harris County     computer.     V.T.C.S.   art.
             6252-17a;   Local   Gov't   Code    §§ 203.002,
             203.005, 205.002. Neither the commissioners
             court nor an agency created by it to manage
             the county's computer system may deprive


     (Footnote Continued)
     documents in the office of the district clerk, but we are
     unaware of any law that authorizes the electronic retrieval
,-   by private persons of information contained    in documents
     filed with the district clerk.

          9. You suggest that "dial-up*' access to the records of
     county offices may be permissible if consent is given by the
     county officers whose records are affected and provided    no
     confidential  information   is   made   available    to   the
     subscribers.  It is unnecessary to decide this issue at this
     time, since your question refers to the "county" (which we
     interpret to mean the commissioners court) and the facts you
     stipulate refer to actions taken by the commissioners   court
     rather than a specific county officer.




                                  p. 6501
Honorable Mike Driscoll - Page 18 (JM-1224)




        elected county,    district,   and   precinct
        officers   of   such   statutory   authority.
        Elected county officers may delegate  certain
        of these statutory duties to the office
        created by the commissioners court to manage
        the records of nonelective   county offices.
        Local Govtt Code g 203.005(g).

           Neither the commissioners court nor the
        agency created by it to manage the county
        computer system is generally    authorized  to
        enforce state or federal laws concerning   the
        dissemination of criminal history     informa-
        tion.   The commissioners     court has    the
        implied authority to contract on behalf     of
        the county with the Department      of Public
        Safety to receive access to the Texas Law
        Enforcement Telecommunications   System.   The
        commissioners court may not authorize private
        users to obtain "dial-up" access to the
        records of elected county, district,        or
        precinct officers that are stored on the
        county computer system.

                                     Very truly yo


                                      3
                                     Jy M    MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




                              p. 6502
