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                                         The Attorney          General of Texas
                                                         December 31. 1982
MARKWHITE
AttorneyGeneral

                                        Honorable Henry Wade                   Opinion No. MIJ-574
Supreme      Court Building             Dallas District Attorney
P. 0. BOX 12548
                                        601 Elm Street                         Re:   Procedure for tasting
Austin. TX. 78711. 2548
5121475.2501                            Dallas, Texas   75202                  microfilms of records filed
Telex    910/874-1367                                                          with   county   clerks, and
Telecopier      5121475-0266                                                   related matters

1607 Main St., Suite 1400
                                        Dear Mr. Wade:
Dallas, TX. 75201-4709
2141742-8944                                 You have asked several questions about the construction to be
                                        given article 1941(a), V.T.C.S., following its amendment in 1979.
                                        First, you ask if a county clerk can make microfilm records under
4824 Alberta       Ave., Suite    160
El Paso. TX.       79905.2793
                                        section 6, subsections (a). (b) and (c) of the statute without
9151533-3484                            necessarily reproducing from the microfilm (and maintaining for public
                                        use) a set of paper records.
1220 Dallas Ave.. Suite          202
                                             Before 1979, the law imposed a special duty upon county clerks
Houston.   TX. 77002-6986
713/650-0666
                                        who microfilmed original records that were not to be retained in the
                                        clerk's files. Clerks were under a duty to test the accuracy and
                                        clarity of the microfilm image by reproducing from the microfilm a
806 Broadway,        Suite 312          paper copy of the record filmed. After the reproduced microfilmed
Lubbock,  TX.       79401.3479
                                        version of an original document had been inspected and checked in that
8061747.5236
                                        manner and found satisfactory, the law made it the duty of the clerk
                                        to return the original to the party who filed it. The statute then
4309 N. Tenth. Suite S                  (as now) specified that records transferred to the state librarian
McAllen,     TX. 78501-1665             pursuant to state law "need not be reproduced." See Acts 1977. 65th
5121682-4547                            Leg., ch. 463, 99, at 1201.

200 Main Plaza, Suite 400                    In 1979, pertinent parts of the statute were amended so that it
San Antonio,  TX. 78205.2797            now reads:
5121225-4191

                                                    Sec. 6. (a) Each county clerk and county
An Equal       Opportunity/                      recorder and clerk of county courts, whenever the
Affirmative      Action     Employer             original paper record is not retained in the files
                                                 of the county clerk, shall inspect and check each
                                                 filmed image on each roll of microfilm, or each




                                                                   p. 2120
Honorable Henry Wade - Page 2   (MW-574)




         each roll of microfilm, or each filmed image of
         the discrete group of filmed images, for the
         purpose of inspecting and checking each filmed
         image for accuracy and clarity.         Should a
         microfilm image be defective in any respect, the
         original instrument of writing, legal document,
         paper or record, from which said defective filmed
         image was made, shall be remicrofilmed on a
         subsequent roll of microfilm, or on a subsequent
         discrete image or images of a subsequent discrete
         group of individual Images, to obtain acceptable
         images on microfilm.     A record need not be
         reproduced if it is transferred to the custody of
         the state librarian pursuant to state law.

             (b) Notwithstanding anything to the contrary
          provided by any other statute or statutes, when an
          instrument of writing, legal document, paper, or
          record has been microfilmed and said microfilm has
          been proven satisfactory by       inspecting and
          checking as provided herein, said clerk is hereby
          authorized to, and shall, return each such
          instrument of writing, legal document, paper or
          record, excepting those involved in or relating to
          court matters and proceedings, to the party or
          parties who filed it. (Emphasis added).

     The new statutory language makes the intent clear, we think, that
county clerks who microfilm records no longer need reproduce (or keep)
a set of paper records from the microfilm in order to test the
accuracy and clarity of the filmed image. The legislative history of
Senate Bill No. 316, which effected the changes, confirms that
conclusion. See Acts 1979, 66th Leg., ch. 254, at 538; Bill Analysis
to   S.B.   NT    316,   prepared   for  the   Senate Committee on
Intergovernmental Relations, filed in Bill File to S.B. No. 316.
Legislative Reference Library.

     The sentence retained in subsection (a) that makes reproduction
of a record unnecessary if it is transferred to the custody of the
state librarian does not compel a different view. In its present
context, we believe it is intended as a guide to those county clerks
who choose to reproduce microfilmed images onto paper records; it does
not mean that microfilmed records must be reproduced on paper if they
are not transferred to the state archives. The intention of the
legislature is the dominant consideration in construing a statute.
Calvert v. British-American Oil Producing Company, 397 S.W.2d 839
(Tex. 1965). In our opinion, the legislature clearly intended in
subsections (a) and (b) to make optional with each county clerk the




                                p. 2121
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    Honorable Henry Wade - Page 3 (MW-574)




    reproduction of records onto paper from microfilm for purposes of
    testing the microfilm image.

         Subsection (c) of section 6 deals with records relating to court
    matters and proceedings. It reads:

                (c) Original instruments of writing, original
             legal documents, original papers and original
             records, which have been filed relating to court
             matters and proceedings and which have been
             recorded on microfilm records, shall be retained
             in the files of the docket to which they relate
             until a written order of the court    closes such
             docket, after which all of the records in such
             docket shall be microfilmed in time sequence to
             provide all of such records of a docket in an
             unbroken continuous sequence on one roll of
             microfilm, or in an unbroken continuous sequence
             of discrete images in a group of discrete images.

    This subsection contemplates that original documents relating to court
    matters and proceedings will be retained by the clerk until the court
    closes the docket to which they relate, even though they have been
    microfilmed. After the docket is closed, it requires that they be
    microfilmed (again) in a manner to provide -- on microfilm -- a
    continuous sequence of the records pertaining to the closed docket.
    It does not require the clerk to employ the microfilm-to-paper testing
    procedure mandated by the statute previous to its amendment.

         You also ask whether any paper records that are reproduced by
    clerks from microfilm can be destroyed before the expiration of five
    years.

         There is no requirement in the present statute that clerks retain
    we=    records that they may have reproduced from microfilm for
    purposes of inspection and checking the microfilmed image. Subsection
    (d) of section 6 does specify that the commissioners court of a county
    may order the disposal of the originalnpaper records from which the
    microfilm records were made only after microfilm film prints" from an
    "original negative microfilm" meeting certain standards are certified
    as having been satisfactorily used by the public for five years or
    more. But, in our opinion, the term "microfilm film prints" includes
    copies of microfilm produced on film as well as on paper. See
    National Center for State Courts, Microfilm and the Courts: Guide for
    Court Managers 13, 14, 52 (1976). Moreover, the requirement does not
    mean that the clerk must have reproduced paper records from the
    microfilm and retained them for public use. It means only that prints
    of the records, when requested by the public, must have been
    satisfactorily reproduced from the original microfilm negative.




                                   p. 2122
Honorable Henry Wade - Page 4    (NW-574)




     Inasmuch as subsection (b) of section 6 plainly contemplates the
return of original documents (except those involved in or relating to
court matters and proceedings) to the person who filed them as soon as
the inspection and checking required by subsection (a) have been
satisfactorily completed, the only "filed" records to which subsection
(d) can have application are instruments of writing, legal documents,
papers or records relating to court matters or proceedings [k,
those addressed by subsection (c)l. One of your questions has to do
with when a county clerk may dispose of such original court records.
We answer that the clerk may dispose of them only after the
commissioners court has entered an order directing their disposition,
such order being conditioned, among other things, upon certification
by the clerk that microfilm film prints of the original records have
been satisfactorily used by the public for at least five years.

     Your remaining question concerns the meaning of the term
"microfilm film prints," a matter we have already discussed. S.Sl?
generally H.G. Jones, Local Government Records 64 et seq. (1980).

                               SUMMARY

            County clerks are not required to reproduce a
         set of paper records from microfilms of original
         records in order to inspect and check the accuracy
         and clarity of the microfilm image, but may do so.
         If such paper prints are made, there is no
         requirement that they be kept. Original court
         records filed with the clerk cannot be disposed of
         except on     certification, inter alla,      that
         microfilm prints of the original records have been
         satisfactorily used by the public for at least
         five years.

                                     Azs



                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General




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        Honorable Henry Wade - Page 5   (MW-574)




        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Kate Conroy
        Rick Gilpin
        Patricia Hinojosa
        Jim Moellinger
        Bruce Youngblood




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