                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                            February 21,2007



The Honorable Susan D. Reed                            Opinion No. GA-052 1
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor                              Re: Whether funds collected by a county clerk as
San Antonio, Texas 78205-3030                          part of the records management and preservation
                                                       fee may be used to purchase certain archival
                                                       records (RQ-0525-GA)

Dear Ms. Reed:

        You ask whether funds collected by a county clerk as part of the records management               and
preservation fee may be used to purchase certain archival rec0rds.l

        You indicate that the document at issue

                 consists of verified correspondence     from William E. Howth, a
                 Colonel under Ben Milam, and third signer of the first Declaration of
                 Independence at Goliad, to Don Jose Antonio Navarro, dated
                 September 10, 1838, and addresses Navarro’s election to the
                 Congress of the Republic of Texas on the grounds of “Voting
                 Irregularities.”  The document is addressed to the “Republic of
                 Texas, County of Bexar” and to Mr. Navarro and is a notice of intent
                 to take the deposition of A.B. Col. [EFH] who is believed to have
                 been a polling clerk or other election official.

Request Letter, supra note 1, at 2. You declare that, although the county clerk has in his possession
a copy of the document, the clerk believes that the original “document was . . . part of the permanent
records of the County and must be returned to those records as part of his duties of preservation and
records retention completeness.” Id. at 3.

        Pursuant to section 118.0 11 (b) of the Local Government Code, a county clerk “may set and
collect . . . from any person” a records management and preservation fee of “not more than $5” for
non-court-related services. TEX.LOC.GOV’TCODEANN. $ 118.011 (b) (Vernon Supp. 2006). The



          ‘See Letter fkom Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Aug. 24, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
 The Honorable Susan D. Reed - Page 2            (GA-0521)




  referenced fee “is for the records management and preservation services performed by the county
  clerk after the filing and recording of a document in the records of the office of the clerk.” Id.
  5 118.0216(a). “The fee may be used only to provide funds for specific records management and
_ preservation, including for automation purposes.” Id. 5 118.02 16(d). Another statutory provision
  directs a commissioners court to “establish a county clerk records management and preservation fund
  for fees subject to Section 118.02 16 and approve in advance any expenditures from the fund.” Id.
  5 203.003(5) (Vernon 1999).

          The primary purpose of statutory construction is to ascertain and give effect to the
 Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In order to
 ascertain legislative intent, we begin by construing a statute according to its plain language. See In
 re Canales, 52 S.W.3d 698, 702 (Tex. 2001). As we have noted, the records management and
 preservation fee described by section 118.0 11 of the Local Government Code is to be used “for the
 records management and preservation services performed by the county clerk afler the filing and
 recording of a document in the records of the office of the clerk.” TEX.LOC.GOV’TCODEANN.
 $ 118.0216(a) (V ernon Supp. 2006) (emphasis added). The original of the document at issue here,
 while it may or may not have been originally filed and recorded in the records of the county clerk,
 is not at present a part of those records. In our view, the fee described by section 118.011 may not
 be used to purchase original records that are not in the clerk’s possession. Rather, its use is restricted
 to “records management and preservation services performed by the county clerk after the filing and
 recording of a document in the records of the office of the clerk.” Id.
The Honorable Susan D. Reed - Page 3        (GA-0521)




                                      SUMMARY

                      The records management and preservation fee described by
              section 118.011 of the Local Government Code may not be used
              to purchase original records that are not currently in the possession
              of the county clerk. The use of the fee is restricted to “records
              management and preservation services performed by the county clerk
              after the filing and recording of a document in the records of the
              office of the clerk.” TEX.Lot. GOV’T CODEANN. 5 118.0216(a)
              (Vernon Supp. 2006).




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
