The Honorable      Martin    D. Eichelberger      Opinion   No.   H- 115
District   Attorney’
McLennan      County                              Re:    Applicability      of House
3rd Floor     Courthouse     Annex                       Bill 6 (Acts 1973, 63rd
Waco,    Texas                                           Leg.,   ch. 424, p. 1112,
                                                         Article    6252-17a, V.T.C.S.    )
                                                         to public records     ifi custody
Dear   Mr.   Eichelberger:                               of the county clerk.

       Your letter   requesting our opinion concerning  Article   6252-17a,
V. T. C. S., poses two questions   having to do with records    in the custody
of the county cletik.

       We have recently      issued Attorney  General   Opinion    H-90 (1973) in
which we generally     outlined the purposes    and provisions     of the Act and its
applicability to certain    specific types of information.

       Your first question   quotes $ 3(a)(15) of the Act and states that “This
apparently  does not include the birth and death records     of County Clerks
and those of local registrars.    ” You ask:

                     “We need to know exactly what the County Clerk
              should not do since the quoted exception   does not men-
              tion other governmental  agencies  nor local registrars.         ‘I

        Section 3(a), after providing     in general   terms,   that most governmental
records    are public information    available   to the public,    lists a number of
exceptions     one of which is, found as subsection      (15): “birth and death records
maintained     by the Bureau df Vital Statistics     in the State of Texas. ‘1

        As we construe     this exception,  the language     “maintained   by the Bureau
of Vital Statistics   in the ,State of Texas”   is descriptive    of the records  and not
a limitation   of the exception.     That is to say, the birth and death records       which




                                      p,. 551
The Honorable       Martin   D.   Eichelberger,      page   2 (H-115)




are.excepted from disclosure   under the Act are birth and death                     records
of the type maintained  by the Bureau of Vital Statistics.

       To hold otherwise   would present    the anomalous    situation   that the
State Registrar   of Vital Statistics  could not produce a record but that a
local registrar   or a county clerk could.     We cannot attribute     to the Legis-
lature an intention  to achieve    such an improbable   result.

       We therefore   answer your first question that, to the extent that he
maintains  records   of birth and death of the type maintained     by the State
Bureau of Vital Statistics,    the county clerk is directed   by law not to disclose
them to unauthorized    persons   on penalty of the sanctions   of tiouse Bill 6.                i

        We   call to your attention    other provisions     of subsection   3(a)(l) except-
ing from     disclosure   “information    deemed confidential     by law, either Consti-
tutional,    statutory,  or by judicial    decision.  ” A record,     not excepted   by
$ 3(a)(15)   may fall within this category.        See Attorney   General   Opinion H-90
(1973).

        Your second question        is based upon language       contained   in $ 5 of House
Bill 6 which provides      that:    “The chief administrative       officer   of the govern-
mental body lshall be the custodian          of public records.     . . . ‘I You state that,
in the instance   of a county, this would be the county judge and the provision
would be in direct conflict      with Articles      1941 et seq. and 6591 et seq. ,V. T. G S,
which place direct      responsibility     for the care,    custody and control     of the
records    in his office upon the County Clerk.           You ask o&r construction       of the
quoted phrase with reference           to the duties of the County Clerk.

        Section 18 of Article 5 of the Constitution,           after    ,providing   for   the
election   of county commissioners,    states:

                       II . . . The County Commissioners             so chosen,
                with the County Judge as,presiding          officer,   shall compose
                the County Commissioners           Court which shall exercise
                such powers     and jurisdiction     over all county business,       as
                is conferred    by this Constitution      and the,laws    of the State,
                or as may be hereafter        prescribed.    ” (emphasis      added)




                                          p.   552
The Honorable     Martin   D.   Eichelberger,      page   3 (H-115)




       Article  5, $ 20, calls for a county clerk “whose duties,  perquisites
and fees of office  shall be prescribed   by the Legislature. . . .”

         The statutes governing     the powers     of the commissioners      courts are
found in Title 44, Vernon’s       Texas Civil Statutes,      commencing      with Article
2351. They are plenary.         ‘A cou&clerk        also has broad powers found in
Chapter 2 of Title 41 of Vernon’s        Texas Civil Statutes.        They are to be the
recorders     of their respective    counties to record     all instruments     required
or permitted     by law to be recorded.       Article   1941, V. T. C,. S., and Article
6591, et seq.,     V. T. C. S. They are to keep certain         records   of their courts.
Articles    1942 and 1943, V. T. C. S.

       By’ Constitution  and statute the government    of the county is confided
to the commissioners      court of which the county judge is the,presiding    officer.
Section 2(l) of House Bill 6 definea the “governmental       body” of a county as
being .its commissioners     court.  The county clerk serves     the commissioners
court.    It has been said that his duties are ministerial.     Attorney  General
Opinion M-615 (1970).

       We would add that, while we see no conflict       with other laws,  should
there be one, the provisions    of House Bill 6, as the latest expression      of
the Legislature, would have to control.     AlliedFlnance    Company of Bay Citv v.&lkner
397 S. W. 2d 846 (Tex.    1965); State v. Ea,sley,   404 S. W. 2d 296 (Tex.    1966).

        Other county officers and departments    besides  the County Clerk have
records    which are as much subject to disclosure    under House Bill 6 as would
be those within the office of the county clerk.

        It is apparent that $ 5 of House Bill 6, in making the chief administrative
officer   of the governmental       body the custodian   of public records,    intended by
that provision     to focus the responsibility    for the success of the Act upon those
who have it within their power to make the Act viable.             It is obvious that it
was not the intent that the chief administrative         officer,  in this case, the county
judge, actually,      physically   have custody as would the county clerk.         Thus, for
example,      in Subsection    5(b) the statute refers  to the custodian’s    “agent who
controls    the use of public records.      ”




                                        p.   553
    The Honorable    Martin   D.   Eichelberger,         page   4 (H-115)




           As we interpret    the Act, the county clerk retains physical      care,
    custody and control    of the records   which, by statute,   he is required     to
    maintain.    The responsibility    for seeing that county records,    including
    those maintained   by the county clerk as well as those maintained         by other
    county officers,  are disclosed     when r.equired by House Bill 6. is placed
    bn the county judge - the chief administrative      officer of the governmental
    body.   We ‘see no conflict    between these provisions.

                                         SUMMARY

                         Birth and death records         required   by Article    4477
                 of the Revised    Civil Statutes,      whether physically     in the
                 State Bureau of Vital Statistics,         in a local registrar’s
                 office,   or in the office of a county clerk,        are not subject
                 to production    or disclosure     under the provisions       of House
                 Bill 6, 63rd Legislature       (Article    6252-17a, V. T. C. S. )’

                         The provisions   of the Act, imposing’upon       the county
                 judge,   as the chief administrative    officer   of the county as
                 a governmental     body, the responsibility     for enforcement
                 of House Bill’6 do not ccmflict with the statutory      duties of
                 the county clerk as the custodian     of the records      of his
                 office.

                                                    Very   truly    yours,




                                                    Attorney       General   of Texas




DAVID M. KENDALL,       Chairman
Opinion Committee




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