                       The Attorney               General of Texas
                                          October    17, 1979

MARK WHITE
Attorney General


                   Honorable Joe Resweber                    Opinion No. KW-7 1
                   Harris County Attorney
                   1001 Preston, Suite 634                  Re: Duty of district clerk to file
                   Houston, Texas 77002                     exhibits in criminal proceedings.

                   Dear Mr. Resweber:

                          You ask if the district clerk of Harris County is required to file
                   exhibits received in evidence during criminal proceedings in the same
                   manner as those received during civil proceedings.

                        The Texas Rules of Civil Procedure provide:

                              The court reporter or stenographer shall file with the
                              clerk of the court all exhibits which were admitted in
                              evidence or tendered on bill of exception during the
                              coume of any hearing, proceeding or trial.

                   Tex. R. Civ. Proc. rule 75a.

                        The Texas Code of Criminal Procedure now provides:

                              Each clerk of the district or county court shall
                              receive and file all papers and exhibits in respect to
                              criminal proceedings.. . .

                   Code Crim. Proc. art. 2.21, as amended by Acts 1979, 66th Leg., ch. R9, at
                   212.

                           These provisions assign district clerks the    ministerial duty to file
                   exhibits in both civil and criminal proceedings.        It is well settled that
                   district clerks may be assigned additional duties by   proper authority. Carter
                   v. Missouri, K & T Ry. Co of Texas, 157 S.W. 1169
                   12 S.W. 610 (Tex. 1669). See Tex. Const. art. V, S     9;
                   Tex. Jur.2d Clerks of Courts SS 10 - 12 at 143.

                          In our opinion the district clerk is now required to file exhibits
                   received in evidence in criminal proceedings as well as those received in
                   civil proceedings. Where any firearm or contraband is received by the clerk




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Honorable Joe Resweber      -   Page TWO        (NW-71)



as sn exhibit in a criminal proceeding, he has the option of placing it in the hands of the
sheriff for safekeeping. Code Crim. Proc. art. 2.21(b). Under rule 75b(b) of the Rules of
Civil Procedure, exhibits may be withdrawn won certain conditions by the court reporter
or stenographer without a court order, but we believe the Code of Criminal Procedure
contemplates that in all instances other than the placement of exhibits with the sheriff
for safekeeping, the clerk is to retain possession of the exhibits at all times and release
them only to the person or persons authorized by the court in which such exhibits have
been received. The statute pub the sheriff, when acting as safekeeper of exhibits, under
the same duty. See Code Crim. Proc. arts. 18.19 (seized weapons), 16.18 (contraband). Cf.
Tex. R. Civ. ProcTule 14b (motion for disposition of exhibits); Code Crim. Proc. art. 38Tbz
(applicability of civil rules); Attorney General Opinion C-177 (1963) (access to records of
criminal proceedings).

                                       SUMMARY

           The district clerk is required to file exhibits received in evidence
           during criminal proceedings as well as those received during civil
           proc&dings.      -         -




                                                MARK     WHITE
                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bruce Y oungblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Tom Bullington
Walter Davis
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood




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