     OFFKE OF THE ATTORNEY GENERAL. STATE OF TEXAS

     JOHN    CORNYN




                                            October 11,200O



The Honorable Tim Curry                               Opinion No. K-0292
Tarrant County Criminal District Attorney
Justice Center                                       Re: Whether the $1 fee that a county clerk
401 West Belknap                                     charges to issue “a noncertified copy of a page or
Fort Worth, Texas 76196-0201                         part of a page of a document,” TEX. Lot. GOV’T
                                                     CODE ANN. $5 118.011(a)(4), .0145(a) (Vernon
                                                     1999 & Supp. 2000), includes the cost of locating
                                                     requested information that is no more than fifty
                                                     pages long, and related question (RQ-0249-JC)


Dear Mr. Curry:

         Sections 118.011 and 118.0145 oftheLoca1 Government Code, which specially regulate the
noncourt fees that a county clerk may or must collect, require a county clerk to collect $1 “for
issuing a noncertified copy of each page or part of a page of a document.” TEX. Lot. GOV’T CODE
ANN. §§ 118.01 l(a)(4), .0145(a) (Vernon 1999 & Supp. 2000). Section 118.011 additionally allows
a clerk to charge a reasonable fee for “performing other duties prescribed or authorized by statute”
if no other fee is prescribed. Id. § 118.01 l(c) (Vernon Supp. 2000). Under section 552.261 of the
Government Code, one of the Public Information Act’s cost provisions, a governmental body may
charge only photocopying costs in response to a request for public information, if the request is for
fifty or fewer pages of paper records that are located in one building and that are not located in “a
remote storage facility.” TEX. GOV’TCODEANN. § 552.261(a) (Vernon Supp. 2000). You raise the
issue whether, when a county clerk receives a request for noncertified copies of fifty or fewer pages
of public information that is located in one building (not a remote storage facility), the clerk may
charge under section 118.011 (c) a reasonable fee for labor costs.’ The clerk may not. The clerk may
charge only $1 per page or part of a page, as section 118.01 l(a)(4) dictates for noncertified copies.
See TEX. Lot. GOV’T CODE ANN. 5 118.01 l(a)(4) (Vernon Supp. 2000).

         You specifically ask: “[Wlhich statute takes precedence in the case of searches within one
building’s records (where the building is not a remote storage facility) which result in production
of less than fifty pages of public information:    Government Code 3 552.261(a),           or Local
Government Code 5 118.01 l(c)?’ See Request Letter, supra note 1, at l-2. Your question appears




        ‘Letter from Honorable Tim Curry, TamantCounty Criminal District Attorney, to Honorable John Comyn,
Attorney General (June 13,200O) (on file with opinion Committee) [hereinafterRequest Letter].
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to mistakenly assume that the $1 fee required by section 118.01 l(a)(4) for issuing noncertified
copies does not include labor costs that may be incurred in providing the noncertified copies.

         As you ask only about a request for fewer than fifty pages of public information, all of which
is located in one building or in physically connected buildings (not a remote storage facility), we
limit our answer to such a request. We further understand you to ask only about the costs that may
be charged for paper copies.

        Section 118.011 of the Local Government Code sets a county clerk’s noncourt fees.
Subsection (a)(4) requires a county clerk to “collect     for services rendered to any person” $1 “for
each page or part of a page” of noncertified papers. TEX. Lot. GOV’T CODE ANN. 5 118.011 (a)(4)
(Vernon Supp. 2000). The subsection also expressly refers to section 118.0145 of the same code,
which indicates what the noncertified-paper    fee is for: “The fee for ‘Noncertified Papers’ under
Section 118.011 is for issuing a noncertified copy of each page or part of a page of a document.”
Id. 5 118.0145(a) (Vernon 1999). Subsection (c) of section 118.011 provides the catch-all upon
which your question relies:      “The clerk shall charge reasonable fees for performing other
duties prescribed or authorized by statute for which a fee is not prescribed by this subchapter.” Id.
5 118.01 l(c) (Vernon Supp. 2000).

         Your question juxtaposes section 118.011 with a cost provision of the Public Information
Act, section 552.261 of the Government Code. Section 552.261 precludes a governmental body
from charging for materials, labor, or overhead associated with fulfilling a request for public
information if

        .       the request is for fifty or fewer pages;
        .       the documents are located in one building or in physically          connected
                buildings; and
        .       the documents are not located in a remote storage facility.

S~~TE~.GOV’TCODEANN. §552,26l(a)(VemonSupp.               2000); seealso id. $552.261(c) (describing
physical connection between buildings).

          A prior opinion of this offlice, Letter Opinion 96-082, notes a conflict between section
118.011 (a)(4) of the Local Government Code and the Public Information Act’s cost provisions. See
Tex. Att’y Gen. LO-96-082, at 2. Section 552.265 of the Government Code, at the time the letter
opinion was issued, provided that “[tlhe charge for a copy made in a district or county clerk’s office
may not be more than the actual cost of copies, as provided by Sections 552.261 and 552.262, unless
a certified record.    is requested.” See TEX. GOV’T CODE ANN. § 552.265, amended by Act of June
1, 1997,75th Leg., R.S., ch. 1231, 5 4, sec. 552.265, 1997 Tex. Gen. Laws 4697,4699. The letter
opinion states that section 5,52.265 “directly conflicts with the one-dollar fee mandated by section
118.01 l(a)(4)” ofthe Local Government Code. Tex. Att’y Gen. LO-96-082, at 2. Because section
118.01 l(a)(4) was enacted after section 552.265, the opinion concludes, “section 118.011 prevails
over section 552.265, to the extent the latter statute applies to county clerks.” Id. The language in
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section 552.265 at issue in Letter Opinion 96-082 is substantially   similar to section 552.261 of the
Government Code, which we are addressing here.

         Consistently with Attorney General Letter Opinion 96-082, we conclude that, at least with
respect to a request to a county clerk for noncertified copies of filly or fewer pages of paper records
that are located in one nonremote building or in nonremote physically connected buildings, section
 118.01 l(a)(4) of the Local Government Code prevails over section 552.261(a) of the Government
Code.

         When two statutes conflict, a special provision “prevails as an exception to the general
provision” unless the legislature adopted the general provision later and manifestly intended the
general provision to prevail. See TEX. GOV’T CODEANN. $3 11.026 (Vernon 1998). The legislature
amended section 552.261(a) of the Government Code to add the cost provisions relating to fifty or
fewer copies in 1995. See Act ofMay 29,1995,74th Leg., R.S., ch. 1035,s 16, sec. 552.261,1995
Tex. Gen. Laws 5 127,5 136. The legislature added the noncertified papers cost provision to section
118.011 oftheLocalGovermnent       Codein 1993. See Act ofMay26,1993,73dLeg.,         R.S.,ch. 554,
$ 1, 1993 Tex. Gen. Laws 2061,2061.      Thus, section 552.261(a) of the Government Code is the
later-enacted provision.

         But we conclude that section 118.011 prevails as an exception to the Public Information
Act’s more general cost provisions. Section 118.011 pertains specifically to a county clerk’s records
and therefore creates an exception to section 552.261(a) absent a contrary legislative intent. And
nothing in the 1995 act amending section 552.261 ofthe Government Code indicates that the Public
Information Act’s cost provisions should prevail over cost provisions that are county-clerk specific.
Indeed, as it was introduced, the 1995 bill that amended section 552.261 also proposed to amend
section 118.0145 of the Local Government Code so that the Local Government Code explicitly
would provide that the Public Information Act’s cost provisions prevail over the county clerk’s cost
provisions in section 118.011 of the Local Government Code:

                   (b) To the extent that the amount of the fee conflicts with the
                amount determined under Section 552.265, Government Code, the
                amount determined under that section controls.

Tex. H.B. 1718, 74th Leg., R.S. (1995). The House Committee on State Affairs deleted the
amendment. See HOUSE COMM. ON STATEAFFAIRS, Bill Analysis, Tex. H.B. 1718,74th Leg., R.S.
(1995). While we cannot say that this deletion indicates a legislative intent that section 118.011 of
the Local Government Code would prevail over section 552.261 of the Government Code, we
believe it counters any suggestion that the legislature manifestly intended the 1995 amendments to
section 552.261 to supersede section 118.011 of the Local Government Code.

        Moreover, the $1 fee provided for noncertified copies in section 118.01 l(a)(4) includes all
costs associated with locating and producing the copies. Section 118.0145 of the Local Government
Code states that the $1 fee “is for issuing a noncertified document.” TEX. LOC. GOV’T CODE ANN.
The Honorable Tim Curry - Page 4                  (JC-0292)




5 118.0145(a) (Vernon 1999); see also id. 5 118.01 l(a)(4) (Vernon Supp. 2000). Thus, we must
define “issuing” to properly construe section 118.0145.

         This office’s past definitions of the verb “issue” and its derivatives do not resolve whether,
in this instance, the term includes all costs associated with locating and producing a noncertified
document. Attorney General Opinion H-552, for example, states that, for the purposes ofthe statute
establishing costs county clerks were to charge for “issuing” certified documents, the term “means
somethingmore thanmerelyproviding         acopy.” Tex. Att’y Gen. Op. No. H-552 (1975) at 3. Rather,
with respect to certified documents, the term means a document that the clerk “sends out officially
as authoritative or binding.” See id. at 4. Letter Opinion 96-082, relying upon the “common
definition of the term,” states that “when a clerk issues a copy of a document,” he or she will copy
or obtain a copy of an original and deliver that copy “to the person who requested and paid for it.”
Tex. Att’y Gen. LO-96-082, at 3. Thus, “the fee prescribed [by statute] for issuing copies of
documents includes making the copies.” Id. You do not ask about costs ofmaking copies, though;
you ask about costs preliminary to copying, such as locating requested documents.

         Rather, we define the term “issue” consistently with common usage to encompass clerical
preparation, such as finding the document to be copied. See id. When construing the words and
phrases that make up a statute, we apply their common usages, unless the legislature has directed
otherwise. See TEX. GOV’T CODE ANN. 5 3 11 ,011 (Vernon 1998) (directing construer to read word
or phrase in context and according to rules of grammar and common usage unless word or phrase
is term of art). The verb “issue” encompasses “[t]o         be sent forth officially or publicly; to be
published or emitted,” as well as “ to give things out to (a person); to supply (a person) with.” VIII
OXFORD ENGLISH DICTIONARY 137 (2d ed. 1989). Various cases state that, with respect to the
issuance of an execution of judgment, “issuance” encompasses not only delivery of the writ of
execution to an officer who will enforce it but also the writ’s “clerical preparation.” Carpenter v.
Probst, 247 S.W.2d 460,461 (Tex. Civ. App.-San Antonio 1952, writ ref d); Walker-Smith Co. v.
Coker, 176 S.W.2d 1002, 1010 (Tex. Civ. App.-Eastland            1943, writ refd w.o.m.); Cotten Y.
Stanford, 147 S.W.2d 930, 933 (Tex. Civ. App.-Amarillo          1941, no writ); see also Delta County
LeveeImprovementDist.      No. 2~. Leonard, 516 S.W,2d911,913 (Tex. 1974), cert. denied, 423 U.S.
829 (1975) (stating that, “[i]n allowing execution under the circumstances presented in this case, no
violence is done to the definition of ‘issuance’ as contemplated by prior decisions”) (citing
Carpenter). Thus, the $1 fee set in section 118.01 l(a)(4) is the total charge that a county clerk may
levy for each noncertified page or part of a page requested for paper copies. Cj: Cypress-Fairbanks
Indep. Sch. Dist. v. Michael F., 93 1 F. Supp. 474,483 (S.D. Tex. 1996) (stating that fifteen cents per
page is “reasonable copy cost”).

         Similarly, section 118.01 l(c) ofthe Local Government Code does not encompass labor costs
associated with locating documents sought in a request for no more than fifty noncertified paper
copies, where the documents are located in one nonremote building or in physically connected
buildings.   Section 118.01 l(c) requires a county clerk to “charge reasonable fees for performing
other duties prescribed or authorized by statute for which a fee is not prescribed by this subchapter.”
Permian Report v. Lacy suggests that this language, together with section 118.024 of the Local
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Government Code, which permits a person to copy documents in a county clerk’s office “without
paying any charge,“precludes   a clerk of court from requiring a party who wishes to copy documents
to reimburse the clerk “for the cost of a supervisor who will control the reproduction procedure.”
Permian Report v. Lucy, 817 S.W.2d 175, 177-78 (Tex. App.-El Paso 1991, writ denied).
Moreover, the phrase “duties prescribed or authorized by statute,” used in section 118.01 l(c),
denotes sovereign functions the legislature has delegated to a county clerk that are either mandatory
or discretionary. The phrase does not include administrative or clerical functions that are necessary
to perform the services for which section 118.01 l(a) enumerates a specific fee.
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                                        SUMMARY

                         With respect to a request for tifiy or fewer copies of public
                information located in one nonremote building or in nonremote,
                physically connected buildings, a county clerk must collect a fee of
                $1 to issue each page or part of a page of requested, noncertified
                copies. See TEX. Lot. GOV’T CODE ANN. 5 118.01 l(a)(4) (Vernon
                Supp. 2000). This $1 fee includes all labor costs associated with
                locating the original documents, and a county clerk may not charge
                an additional fee under section 118.01 l(c) of the Local Government
                Code for locating the original documents. Section 118.011(a)(4) of
                the Local Government Code prevails over section 552.261 of the
                Government     Code to the extent the two cost provisions          are
                inconsistent.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
