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DAN MORALES
 .ATTORNEY
       CENERAL                                   November      17,1998



   The Honorable Bobby Lockhart                              Opinion No. DM-492
   Bowie County Criminal District Attorney
   P.O. Box 3030                                             Re:    Whether the commissioners     court or the
   Bi-State Justice Center                                   county clerk is authorized       to control the
   Texarkana, Texas 75504                                    expenditure     of records     management     and
                                                             preservation     fees collected    under   Local
   The Honorable Dan C. Clower                               Government Code section 118.02 16, and related
   Walker County Auditor                                     questions    (RQ-953)
   1100 University Avenue
   Huntsville, Texas 77340

   The Honorable Jeffrey D. Herrington
   Anderson County Criminal District Attorney
   500 North Church Street
   Palestine, Texas 75801



   Dear Sirs:

            You each ask questions regarding the Local Government Code section 118.02 16 records
   management and preservation fee. Because your questions raise similar issues, we answer them
   together. These issues fall into two general categories. First, your questions ask us to determine
   whether the commissioners court or the county clerk controls the use of funds collected under section
   118.0216. For the reasons discussed below, we believe that the commissioners court and county
   clerk’ must agree on the expenditure of funds collected under section 118.0216 and that, in effect,
   neither the court nor the clerk may use these funds without the cooperation of the other. Second,
   your questions ask us to determine whether section 118.0216 funds may be used only to pay for
   projects preserving and automating records that have already been filed and recorded in the county
   records or whether they may also be used to pay for the cost of recording documents by microfilm
   as they are initially tiled. We conclude that section 118.0216 funds may be used to pay for the costs
   of recording documents by microfilm, but only if certain conditions are met.



            ‘We assume that the county clerks in your counties have not delegated their records management   duties to the
   county records management officer under Local Government Code section 203.005(g).
The Honorable Bobby Lockhart - Page 2                     (DM-492)
The Honorable Dan C. Clower
The Honorable Jeffrey Herrington




         We briefly describe the facts giving rise to your requests. Mr. Lockhart asks whether the
commissioners court or the county clerk decides how the records management and preservation fee
is used. Apparently, the commissioners court in his county allocated a portion of the funds collected
under section 118.0216 for microfilming records. He informs us that “[tlhe County Clerk feels these
funds and the allocation/expenditure      of the fees collected through the records management and
preservation fee are to be used solely at her discretion.”          Mr. Herrington asks whether the
commissioners     court or the county clerk decides whether to discontinue funding a records
preservation and automation project paid from section 118.0216 funds. In 1995, the commissioners
court in his county approved the request of the county clerk to expend section 118.0216 monies to
lease certain equipment for use by the county clerk. Later, in 1996, the county clerk decided that the
lease was not an appropriate use of section 118.0216 funds. The commissioners court voted to
discontinue payments on the lease only after the county clerk threatened legal action. Finally,
Mr. Clower informs us that the district attorney in his county has opined that the section 118.0216
account may not be used to pay for microfilming and indexing the documents tiled with the clerk’s
office on a daily basis and that the fee may only be used for specific records preservation and
automation projects as determined by the county clerk.’ Mr. Clower believes that the section
118.0216 account may be used to pay for the microfilming and indexing of documents tiled on a
daily basis in the clerk’s office, ifthe commissioners court determines that this process is a specific
records preservation and automation project.3

       Section 118.0216 authorizes,             but does not require a county clerk to collect a records
management and preservation fee

             for the records management and preservation services performed by the
             county clerk after the tiling and recording of a document in the records of the
             office of the clerk.         The fee may be used only to provide funds for
             specific records preservation and automation projects.




         ‘Mr. Clower informs us that the county clerk’s employees microfilm    the records tiled in the clerk’s office using
a camera and film provided by a third party vendor. The clerk sends the microfilm to the third party vendor who makes
an archival print of the film. The third party vendor also compiles indices of the clerk’s records, binds the indices and
sends them to the county clerk’s office. Letter from Dan C. Glower, Walker County Auditor, to Sarah J. Shirley, Office
of the Texas Attorney General (Jan. 22, 1997).

          ‘Mr. Glower’s request also raises numemus other questions about allocation of fees collected under Local
Government Code sections 118.012 and 118.013 and about the authority of the county auditor and the commissioners
court regarding county expenditures.     We will address some of his questions in this opinion. Other questions may be
mooted by this opinion, and his questions about the general authority of the county auditor may be answered by
consulting prior opinions of this office. See Attorney General Opinions DM-440 (1997), H- 17 l(l973); Letter Opinion
No. 93-91 (1993).




                                                            p.   2797
The Honorable Bobby Lockhart - Page 3                     (DM-492)
The Honorable Dan C. Clower
The Honorable Jeffrey Herrington


Local Government Code section 203.003(5) requires a commissioners court to “establish a county
clerk records management and preservation fund for fees subject to Section 118.0216 and approve
in advance any expenditures from the fund.”

          Prior letter opinions of this office, all dating from 1992: address control of funds collected
under section 118.0216. The conclusions of these opinions can be summarized as follows: Fees
collected under section 118.0216 are not under the control of the county clerk.5 The county clerk
must deposit the fees he or she collects with the county treasurer.6 The county treasurer must deposit
the funds in a separate account in order to ensure that the monies are used only for the specific
purpose set forth in section 1 18.0216.7 The commissioners court is responsible for allocating the
monies collected, but may expend them only “for specific records preservation and automation
projects” in the office of the county clerk.* The determination whether a particular project will aid
in preserving or automating county clerk records must be made by the commissioners court in the
first instance.’ Decisions regarding records management and preservation fee fund expenditures are
not within the sole discretion of the county clerk.“’

        In 1993, an appellate court addressed control of funds collected under section 118.0216. See
Hooten v. Enriquez, 863 S.W.2d 522, (Tex. App.--El Paso 1993, no writ). Were-examine         our prior
opinions in light of that case.

       Hooten arose from a dispute between the commissioners court and county clerk in El Paso
County. The commissioners court attempted to allocate section 118.0216 funds to the county records
department.”  The county attorney then advised the commissioners court that the funds could only




        ‘See Letter OpinionNos.     92-81 (1992); 92-77 (1992) (withdrawn    Jan. 5, 1998); 92-7 (1992).

        *See Letter Opinion    Nos. 92-81 (1992) at 2-3; 92-7 (1992) at 2.

        6See Letter Opinion    Nos. 92-81 (1992) at 2; 92-7 (1992) at 2.

          ‘See Letter Opinion No. 92-7 (1992) at 2; see also Local Gov’t Code 5 203.003(5) (requiring commissioners
court to establish county clerk records management and preservation fund for fees subject to section 118.0216 and to
approve in advance any expenditures from fund).

        ‘See Letter Opinion Nos. 92-81 (1992) at 2-3; 92-7 (1992) at 2-3.

        ‘See Letter Opinion Nos. 92-81 (1992) at 2-3; 92-7 (1992) at 3.

         ‘%ee Letter Opinion   No. 92-7 (1992) at 3.

         “Hooten,   X63 S.W.2d at 525-26,




                                                          p.   2798
The Honorable Bobby Lockhart - Page 4             (DM-492)
The Honorable Dan C. Clower
The Honorable Jeffrey Herrington


be used for records preservation and automation projects in the office of the county clerk.‘* In
response, the commissioners court appointed a county employee to conduct a study of the county
clerk’s office.   The employee was directed to identity preservation and automation functions
performed by deputy county clerks that could be funded from the section 118.02 16 account. The goal
was to create a surplus in the county clerk’s general fund account that could then be transferred to the
county general fund account for the county records department.” After the completion of the study,
the commissioners court “designated specific records preservation and management functions that
were to be performed by those deputies appointed by the County Clerk”14 and “designated that those
deputies be paid from the proceeds of the dedicated [section 118.0216] fee account.“‘5

         The majority opinion’s analysis is based on a review ofthe constitutional and statutory duties
of the commissioners     court and the clerk. In addition to constitutionally      derived jurisdiction
over “county business,“lb the opinion notes that “the commissioners          court specifically has the
statutory authority to oversee the fiscal operation of the county by approving and authorizing a
budget.       Generally, the allocation of county funds is a policy-making determination left to the
sound discretion of the commissioners court.“”

        The majority opinion also notes, however, that the legislature has vested the county clerk with
the duty to “keep the county records properly indexed and arranged.“‘* A county clerk, who has not
delegated records management to the county records management officer, “is the custodian of the
local government records received or created by his constitutionally-created   office”” pursuant to the
Local Government Records Act, see Local Gov’t Code chs. 201-205. Such a county clerk “has the
exclusive and absolute discretion to develop policies and records management procedures that will
preserve permanent records in the most efficient and cost-effective manner, as such policies relate to
the County Clerk’s offtce.“zO With regard to county offrcers who have not delegated records
management authority to the county records management officer, “the role of the commissioners


        ‘=ld. at 526.

        “Id,

        “Id. at 527.

        ‘5Id.

        ‘6ld. at 529,




        “Id. at 530

        “id.

        “old. at 531




                                                 p.   2799
The Honorable    Bobby Lockhart - Page 5           (DM-492)
The Honorable    Dan C. Clower
The Honorable    Jeffrey Herrington


court in managing the records of the elected officers is largely one of support.“” For this reason, the
court concluded that the El Paso county clerk, who had chosen to retain the records management
function, “has complete responsibility and control over the administration of [the county clerk’s
office] records management program.“”

         Finally, the majority opinion also relies on the fact that the legislature has vested “the county
clerk, and not the county commissioners court, with the exclusive authority to dictate to his or her
deputies, the responsibility of carrying out the clerk’s constitutional and statutory duties, including
the designation of exactly what constitutes record keeping, preservation, and automation in the county
clerk’s office.“23 On the basis of the county clerk’s authority to manage records within the county
clerk’s office and the county clerk’s authority to appoint and direct deputy clerks, the majority
opinion concludes that the commissioners court’s attempt to designate records management duties
and responsibilities of deputy clerks constituted an improper interference with the constitutional and
statutory functions of the county clerk.

        The concurring opinion, although agreeing with the majority opinion in its conclusions, takes
a narrower approach. It emphasizes that the commissioners court exceeded its authority when it

            designated not only specific records preservation projects in the County
            Clerk’s office (an action within its discretion) but also designated specific
            employees and the percentage of their salaries and benefits who and which
            it required to be paid out of the records preservation fund as well (an act
            beyond its discretion).24

The concurring    opinion also states

            it is the duty and the responsibility of the County Clerk to designate what
            constitutes preservation of records and automation in his office and to assign
            his employees specific tasks.        He does not, however, have the unbridled
            discretion to expend money out ofthe Records Management and Preservation
            Fund as he sees fit.

                It is the Commissioners         Court that has the budgetary duty and
            responsibility of allocating all county funds, including ear-marked funds such




        “Id. (emphasis   in original)

        “ld. at 534.




                                                   p.   2800
The Honorable Bobby Lockhart - Page 6                      (Dti+492)
The Honorable Dan C. Clower
The Honorable Jeffrey Herrington


             as the one involved here. In order to carry out this duty, it necessarily
             follows that the Commissioners Court must make the initial determination
             from information furnished by the County Clerk and/or from its own
             independent study of what kinds of work constitute “preservation of records
             and automation.” See Tex. Att’y Gen. LA-81 (1992).*’

        From our perspective, Hooten is a difficult case. A footnote in the majority opinion may be
read to disagree with one of our opinions, Letter Opinion No. 92-81, but does not expressly overrule
it?6 On the other hand, the concurring opinion, which deals directly with the issue of authority to
make expenditures, relies on that letter opinion for the proposition that only the commissioners court
has the authority to allocate funds and that the commissioners            court must make the initial
determination regarding what work constitutes records preservation and automation.27

         Based on the Hooten case, we believe that we must modify our prior opinions to the extent
they suggest that the county clerk has no role in deciding how funds in a section 118.0216 account
are used. We believe that the majority opinion in Hooten requires both the county clerk and the
commissioners court to have a role in that decision. While only the commissioners court has the
authority to allocate funds in a section 118.02 16 account, the commissioners court cannot dictate how
work is done in the county clerk’s office or who does it. In other words, despite its control over the
county budgeting process, the commissioners court is not authorized to dictate how the county clerk
carries out his or her constitutional and statutory duties. Unless a county clerk has delegated records
management duties to the county records management ofIlcer,28 records management in the county
clerk’s office is within that officer’s sole discretion. On the other hand, the county clerk has no power
to allocate section 118.02 16 monies.            The authority to allocate these funds lies with the
commissioners court alone, subject to judicial review for abuse of discretion.

         In sum, Hooten indicates both that funds may not be allocated from a section 118.0216
account unless the commissioners court approves the expenditure and that a records management and
preservation project may not be undertaken in the county clerk’s office unless the county clerk
approves it and directs his or her deputies to undertake it. Thus, as a practical matter, both the
commissioners court and the county clerk must ultimately agree on the use of section 118.0216
monies, We do not believe, for example, in answer to Mr. Lockhart’s question, that it would be
proper for a commissioners court to enter into a contract for records automation or preservation in the




         ‘Vd. at 532 11.14,531-32.

         2’ld. at 534

          “‘Again, weassume thatrhecountyclerksinyourcountieshavenotdelegated~eirrecordsmanagementduties
to the county records management officer.




                                                            p.   2801
The Honorable     Bobby Lockhart - Page 7               (DM-492)
The Honorable     Dan C. Clower
The Honorable     Jeffrey Herrington


office of the county clerk that the county clerk does not approve, for the effect of such an action
would be to dictate how the county clerk carries out the constitutional and statutory duties of that
office. Nor, in answer to Mr. Herrington’s question, do we believe it is proper for a commissioners
court to insist on continuing funding of a records automation or preservation project that the county
clerk no longer approves.

         We now address the second issue raised by your requests. As we have noted, section
118.02 16 ofthe Local Government Code designates the “Records Management and Preservation” fee
authorized by section 118.011 “for the records management and preservation services performed by
the county clerk after thefiling and recording of a document in the records of the office of the clerk.”
(Emphasis added.) The language of this provision reflects the traditional method whereby the clerk
records instruments in a “well-bound book,” see Local Gov’t Code $5 191.002, 193.001, ,003, and
records management and preservation will occur later, for example, when the paper records are stored
under conditions that will prevent deterioration or are copied in a more permanent media.

        However, the legislature has expressly authorized a county clerk to use a microfilm process
to maintain records. Id. 5 193.008(a); see id. ch. 204. *9 In that case, “[tlhe clerk shall record
each class of record on a separate series of rolls of microfilm.” Id. $ 193.008(c). “Each roll of
microfilm.      is considered to be a bound volume or book.” Id. Microfilm may be used to maintain
and preserve public records pursuant to chapter 204 of the Local Government Code. Id. 5 204.002.
The use of microfilm merges the recording process with the process of preserving and maintaining
records. Under such circumstances, may the records management and preservation fee be used to pay
for the microfilming of the instruments?

         The legislature has expressly authorized, and in fact encouraged, county clerks and other
custodians of records to use microfilm to maintain records. Using a single process to both record
and preserve documents promotes efficient records management. It is both inefficient and absurd
to conclude that the records management and preservation fee may be used to pay for microfilming
documents only if the clerk first records them manually in a book. Statutory provisions will not be
construed as to lead to absurd conclusions if any other construction can reasonably be indulged in.
Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942). The word “after” should not be so heavily
emphasized that we are compelled to reach an absurd and inefficient result. Accordingly, a county
is not prohibited from spending the records management and preservation fee on using microfilm
technology to record documents if the use of microfilm is within a “specific records management
and preservation project[].”




        “Local   government   records may also be maintained   electronically.   See Local Gov’t Code 5 201.004




                                                          p.   2802
The Honorable Bobby Lockhart - Page 8                       (DM-492)
The Honorable Dan C. Clower
The Honorable Jeffrey Herrington


         A county clerk also collects fees “for tiling or tiling and registering [orrecording], including
indexing”jO documents authorized or required to be filed in the personal property or real property
records of the county.” These basic tiling fees must be deposited with the county treasurer’* and
allocated by the commissioners court as part of the county budget process.” Pursuant to section
152.011 of the Local Government Code the commissioners court is responsible for setting the
compensation, office and travel expenses, and other allowances for county and precinct officers and
employees paid wholly from county funds, including the compensation, office and travel expenses
of the county clerk.34

         Mr. Clower asks whether the amount of filing fee revenue collected under the Local
Government Codej5 for tiling, recording, and indexing real and personal property records is
“dedicated” for payment to the third party vendor that provides microfilming equipment and
services for these purposes when the records are tiled with the clerk.j6 None of the statutes cited
require such a dedication of the fees, nor are we aware of any other basis for requiring their
dedication.)’

        We reiterate that section 118.0216 requires the records management and preservation fund
to be spent for specific records preservation and automation projects, subject to the commissioners
court’s advance approval of such expenditures, and the fund may not be diverted from its statutorily
assigned purposes to pay other expenses ofthe clerk’s office. Ifthe use ofmicrofilming technology
meets the criteria set out in article 118.0216, the records management and preservation fee may be
used to fund it.



         “Local    Gov’t Code $5 118.012, ,013

         “Seeid.   $5 118.011(a)(l),   (2), ,012, ,013.

         ‘?See Tex. Const. art. XVI, $6 l(fees earned by district, county, and precinct officers shall be paid into county
treasury in counties where county officers are compensated on a salary basis); Local Gov’t Code 5 113.001.

         “See Local Gov’t Code $5 111.003, .004(b)(2).

         ‘%SeeAttorney    General Opinion    H- 1243 (1978) at 2

         “Local    Gov’t Code $ 118.011(a)(l),    (2).




           “An attempt to dedicate those funds might also raise an issue under article III, section 52 of the Texas
Constihltion, which places certain conditions on the expenditure of public funds by political subdivisions in order to
insure that the expenditure serves public purposes. Attorney General Opinions DM-317 (1995), JM-1030 (1989).
Among other limitations, a political subdivision must receive an adequate return for its expenditure of public funds.
Attorney General Opinions DM-3 17 (1995), JM- 1030 (1989). This limitation might well be violated by the dedication
of a revenue SOUIC~to a particular contract unless payments are limited to the value of services received.




                                                           p.   2803
The Honorable   Bobby Lockhart - Page 9           (DM-492)
The Honorable   Dan C. Clower
The Honorable   Jeffrey Herrington


         Finally, we note that section 118.0216 of the Local Government Code does not define
“specific records preservation and automation projects.” A legislative definition of this term as well
as additional legislative clarification of section 118.0216 as to the use of the records management
and preservation fee would greatly assist the counties in applying this provision.

                                        SUMMARY

                Neither the commissioners court nor the county clerk controls the use of
            the records management       and preservation fees collected under section
            118.0216 of the Local Government Code. As a practical matter, both must
            agree on the use of the funds. Funds collected under section 118.0216 may
            be used to pay for the costs of initially recording documents by microfilm,
            but only if the commissioners court determines that this process is part of a
            specific records preservation and automation project within section 118.02 16
            of the Local Government Code. The records management and preservation
            fee must be spent for specific records preservation and automation projects,
            subject to the commissioners      court’s advance approval, and may not be
            diverted from its statutorily assigned purposes to pay other expenses of the
            clerk’s office.




                                                DAN      MORALES
                                                Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter and Susan L. Garrison
Assistant Attorneys General




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