                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                              June 30, 2008



The Honorable Hector M. Lozano                   Opinion No. GA-0638
Frio County Attorney
500 East San Antonio Street                      Re: Whether, without the approval ofthe commissioners
Box 1                                            court, a county clerk may supplement her deputies'
Pearsall, Texas 78061-3100                       salaries with money from the clerk's records
                                                 management and preservation fund (RQ-0659-GA)

Dear Mr. Lozano:

        You ask several questions about the use of the county clerk's records management and
preservation fund and the disposition ofa records management and preservation fee collected under
the Code of Criminal Procedure.! Five of your questions pertain to the county clerk's records
management and preservation fee collected under Local Government Code sections 118.011(b)(2)
and 118.0216, and three pertain to the records management and preservation fee collected under
Code of Criminal Procedure article 102.005(f). See Request Letter, supra note 1, at 2-3; see also
TEX. CODE CRIM. PROC. ANN. art. 102.005(f) (Vernon 2006) (requiring a defendant to pay a $25
records management and preservation fee); TEX. Lac. GOy'T CODE ANN. §§ 118.011 (b)(2) (Vemon
2008) (authorizing a county clerk to collect a records management and preservation fee of $5 or
less), 118.0216(a), (d) (detailing the use ofthe county clerk's records management and preservation
fee), 203.003(5)-(6) (requiring a county commissioners court to establish both (1) a county clerk
records management and preservation fund and (2) a records management and preservation fund for
fees collected under Code of Criminal Procedure article 102.005(d)). We will first discuss the fee
collected under Local Government Code sections 118.011(b)(2) and 118.0216.

I.      The County Clerk's Records Management and Preservation Fee

         Local Government Code section 118.011 (b)(2) expressly authorizes a county clerk to set and
collect a fee of not more than $5 for non-court-related services "from any person" for records
management and preservation. TEX. Lac. GOy'T CODE ANN. § 118.011 (b)(2) (Vernon 2008).
Section 118.0216 ofthe same code states that the fee, which "must be paid at the time" a document
is filed, "is for the records management and preservation services" that the county clerk performs


         ISee Letter from Honorable Hector M. Lozano, Frio County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 2-3 (Dec. 27, 2007) (on file with the Opinion Committee, also available at
http://www.texasattorneygenera1.gov) [hereinafter Request Letter].
The Honorable Hector M. Lozano - Page 2                          (GA-0638)




"after the filing and recording of a document in the records" of the clerk's office. Id.
§ 118.0216(a)-(b). Section 118.0216(d) furtherprovides'that "[t]he fee may be used only to provide
funds for specific records management and preservation, including for automation purposes.,,2
Id. § 118.0216(d). The fees must be deposited into "a county clerk records management and
preservation fund" that the county commissioners court has established .under Local Government
Code section 203.003(5),3 and the county commissioners court must "approve in advance any
expenditures from" the county clerk's records management and preservation fund. Id. § 203.003 (5).

        You indicate that the Frio County Clerk's records management and preservation fund has
accumulated "a cash reserve of $50,000.00[-]plus." Request Letter, supra note 1, at 1. You state,
"It appears that the only use ofthose funds in recent years [has] been to 'supplement' salaries for the
County Clerk's office." Id. You explain:

                  [The] Frio County Commissioners Court has set the annual salary for
                  the County Clerk and for each of her 3 deputy clerks.... Aside from
                  the deputy clerk's monthly salary, the County Clerk requests extra
                  compensation, as either salary enhancements or payroll supplements,
                  for her deputies to be paid out of the Records Management [and
                  Preservation] Fund. . .. This written request is directed to [the]
                  Frio County Treasurer[,] who in tum cuts . . . a supplement check
                  . . . . Neither [the county clerk] nor [the county treasurer] present[s]
                  this matter to [the] Commissioners Court for [its] consideration
                  and approval. In fact[,] the procedure totally bypasses [the]
                  Commissioners Court.

Id. at 1-2. You suggest that the Frio County Auditor questions the legality of co-signing these
warrants for supplemental compensation. See ide at 1.

         In connection with these facts, you ask the following five q,uestions:

                  1.    Whether the County Clerk may award additional compensation
                        to each ofher 3 deputies within her department from the Records
                        Management [and Preservation] Fund fee collected under
                        Section 118.0216[,] Local Government Code.

                  2.    If so, may the County Clerk pay this additional compensation
                        without [the] Commissioners Court's approval and without any



        2We need not consider subsections (c) and (e), which pertain only to counties adjacent to an international border.
See TEX. Loc. GOV'T CODE ANN. § 118.0216(c), (e) (Vernon 2008). Frio County is not adjacent to an international
boundary. See THE DALLAS MORNING NEWS, 2006-2007 TEXAS ALMANAC 224 (Sesquicentennial ed. 2006).

          3As we indicate below, the county clerk's records management and preservation fund also receives a portion

of a fee paid under Code of Criminal Procedure article 102.005(f)(2) by a defendant convicted in the county court. See
infra pp. 7-8; see also TEX. CODE CRIM. PROC. ANN. art. 102.005(f)(2) (Vernon 2006).
The Honorable Hector M. Lozano - Page 3                       (GA-0638)




                       consideration of time spent by each of the deputies in "some
                       proportion" to the actual accomplishment of Records
                       Management and Preservation purposes?

                 3.    What authority exists for the County Clerk to compensate her
                       deputies with supplemental pay which amounts to more than the
                       actual monthly salary earned by each individual deputy?

                 4.    Clarify which "salaries" may be paid to employees in the clerk's
                       office as per Section 118.0216[,] Local Government Code. Did
                       opinion No. GA-0118 apply to the salaries of all employees
                       within the clerk's office or was it intended to apply to the salary
                       of a particular deputy employed for the specific purpose of
                       Records Management and Preservation?

                 [5.] If the Frio County Treasurer receives a request for extra
                      compensation from the Frio County Clerk ... [,] must the Frio
                      County Treasurer present this matter to [the] Commissioners
                      Court for their approval prior to making the disbursement?

Id. at 2-3.

       You indicate that the County Clerk bases her request for records management and
preservation funds on Attorney General Opinion GA-0118, a 2003 opinion that we will discuss
before we answer your questions. See ide at 1. Opinion GA-0118 considers whether money from
the county clerk's records management and preservation fund may be used to pay salaries in the
county clerk's office. Tex. Att'y Gen. Ope No. GA-0118 (2003) at 2. GA-0118 concludes that
"[p]aying the salaries ofpersonnel in the clerk's office who accomplish specific records management
and preservation purposes, other than filing and recording documents, is not excluded as a matter
of law" from permissible uses ofthe county clerk's records management and preservation fund. Id.
at 6. Nevertheless, the opinion cautions that "[r]ecords management and preservation fees may be
used to pay an employee in the clerk's office only" in proportion to the amount of time that "the
employee spends on 'specific records management and preservation, including automation
purposes. ,,,4 Id. at 6-7. Whether "a particular activity of a clerk's office accomplishes" a specific
records management and preservation purpose "is a question requiring factual determinations and
is beyond the scope of an attorney general opinion." Id at 7.



         4Attorney General Opinion GA-0118 suggests that the records management and preservation fund established

by a county commissioners court under Local Government Code section 203 .003(6) is the fund into which a county clerk
deposits records management and preservation fees collected under sections 118.011(b)(2) and 118.0216 of the same
code. See Tex. Att'y Gen. Op. No. GA-0118 (2003) at 6. As we discuss more fully below, however, fees collected by
the county clerk under sections 118.011(b)(2) and 118.0216 are deposited into the county clerk's records management
and preservation fund established by a county commissioners court under section 203.003(5). See supra p. 2; see also
TEX. Loc. GOV'T CODE ANN. § 203.003(5) (Vernon 2008).
The Honorable Hector M. Lozano - Page 4                         (GA-0638)



        Attorney General Opinion GA-O 118 further suggests that, under Hooten v. Enriquez, a 1993
decision of the EI Paso court of appeals, the county clerk and the county commissioners court both
playa role in making expenditures from the clerk's records management and preservation fund. 5 See
ida at 8 (quoting Hooten v. Enriquez, 863 S.W.2d 522,531 (Tex. App.-EI Paso 1993, no writ);
citing TEX. Lac. GOV'T CODE ANN. § 118.0216(d) (Vernon SUppa 2003); Tex. Att'y Gen. Ope No.
DM-492 (1998) at 6). Under Hooten, the opinion states, "it is the county clerk's duty to designate
'exactly what constitutes'" a specific records management and preservation purpose, but-given the
commissioners court's duty to approve in advance any expenditures from the clerk's records
management and preservation fund-"the county clerk and the commissioners court both play 'a
role' in determining" the specific records management and preservation purposes "for which the
county will spend records management and preservation fees." Id. at 7-8 (quoting Hooten, 863
S.W.2d at 531; citing TEX. Loc. GOV'TCODEANN. § 118.0216(d) (Vernon SUppa 2003); Tex. Att'y
Gen. Ope No. DM-492 (1998) at 6); see also TEX. Lac. GOV'T CODE ANN. § 203.003(5) (Vernon
2008) ("The commissioners court ... shall ... approve in advance any expenditure from the fund
...."). We turn now to your questions.

         Your first two questions ask whether a county clerk may "award additional compensation"6
to her deputies using money from the county clerk's records management and preservation fund
without commissioners court approval and without considering the proportion of time each deputy
spends on specific records management and preservation purposes. See Request Letter, supra note
1, at 2. As this office opined in Opinion GA-O 118, Local Government Code section 118.0216(d)
does not prohibit paying deputies' salaries from the county clerk's records management and
preservation fund to the extent that the deputies' work encompasses specific records management
and preservation purposes. See TEX. Lac. GOV'T CODE ANN. § 118.0216(d) (Vernon 2008); Tex.
Att'y Gen. Ope No. GA-0118 (2003) at 6. As we explain, however, the county clerk may not
supplement the deputies' salaries that the county commissioners court has set in accordance with
statutory budgeting procedures in the absence of (1) a commissioners court-approved bonus plan,


         SA 1998 opinion, Attorney General Opinion DM-492, construes the majority and concurring opinions in Hooten,
which consider the roles ofthe county clerk and the county commissioners court vis-a-vis expenditures from the county
clerk's records management and preservation fund. See Tex. Att'y Gen. Ope No. DM-492 (1998) at 3-7; see also
Hooten, 863 S.W.2d at 530-34; id at 534 (Koehler, J. concurring). Opinion DM-492 summarizes the Hooten opinions
as follows:

                           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.

Tex. Att'y Gen. Ope No. DM-492 (1998) at 6.

          6Throughout your request letter, you refer to the additional compensation as an "award" of "additional
compensation," "salary enhancements," "payroll supplements," "supplement check[s]," and "supplemental pay." Request
Letter, supra note 1, at 1-2. By any term, we understand you to refer to compensation, in the form ofa bonus or other
supplement, additional to the amount that the commissioners court budgeted.
The Honorable Hector M. Lozano - Page 5                       (GA-0638)



(2) a commISSIoners court-approved expenditure from the clerk's records management and
preservation fund, and (3) a consideration of the proportional amount of time each deputy spends
on specific records management and preservation purposes.

        First, a county clerk has no statutory authority to set the amount of compensation, expenses,
or allowance to be paid to the clerk's deputies. While a county clerk may appoint deputies after
obtaining the approval ofthe commissioners court, it is the commissioners court that "shall set" the
amount ofcompensation, expenses, and "other allowances" to be paid to the deputies. See TEX. Loc.
GOV'T CODE ANN. §§ 82.005(a), 151.001-.004, 152.011 (Vernon 2008). A commissioners court
order fixing the salaries ofdeputy clerks is effective until the commissioners court acts to change the
salary, and the county clerk may not independently agree with deputies to set the salary at an amount
different from that approved by the commissioners court. See Md. Cas. Co. v. State, 107 S.W.2d
865, 868 (Tex. 1937).

        Second, under article III, section 53 of the Texas Constitution, employees may not be paid
compensation additional to that budgeted for work already performed unless the commissioners court
approved a bonus or supplement plan before the work was performed. See TEx. CONST. art. III,
§ 53; Tex. Att'y Gen. Opt Nos. GA-0562 (2007) at 3 n.5; GA-0492 (2006) at 2; JM-1253 (1990) at
2-3; see also Request Letter, supra note 1, at 2 (suggesting article III, section 53 implications).
Article III, section 53 forbids a county to "grant[] any extra compensation, fee or allowance." to
a public employee "after service has been rendered." TEX. CONST. art. III, § 53. You have not
informed us that the county had in place a bonus or supplement plan at the time the deputies
performed the work for which the county clerk is requesting additional compensation, but assuming
the county had no such plan in place, the additional compensation violates article III, section 53.

        And third, as your second question suggests,7 the commissioners court must approve in
advance any expenditure from the county clerk's records management and preservation fund, and
the amount ofthe payment must be proportional to the amount oftime spent on records management
and preservation. See Request Letter, supra note 1, at 2. As Local Government Code section
203.003 (5) requires, the commissioners court must "approve in advance any expenditures" from the
"county clerk records management and preservation fund for fees subject to Section 118.0216."
TEX. Loc. GOV'T CODE ANN. § 203.003(5) (Vernon 2008). Additionally, money from the county
clerk's records management and preservation fund may pay "only that portion of an employee's
salary that is proportional to the" amount of time the employee spends on 'specific records
management and preservation, including for automation purposes.'" Tex. Att'y Gen. Opt No.
GA-0118 (2003) at 7 (quoting TEX. Loc. GOV'TCODEANN. § 118.0216(d) (Vernon Supp. 2003)).
Consequently, to answer your first and second questions, the county clerk may not pay additional
compensation to her deputies unless (1) a county commissioners court-approved bonus plan was in
place at the time the deputies performed the work; (2) the commissioners court approves the
expenditure from the records management and preservation fund; and (3) the additional




        7While you condition your second question upon an affrrmative answer to your fITst question, it is necessary
to answer it to fully answer your first and third questions. See Request Letter, supra note 1, at 2.
The Honorable Hector M. Lozano - .Page 6              (GA-0638)




compensation is proportional to the amount of time each specific employee spends on specific
management and preservation, including automation purposes.

         You ask third whether the county. clerk has authority "to compensate her deputies with
supplemental pay" that amounts to more than the actual monthly salary earned by each individual
deputy. Request Letter, supra note 1, at 2; see supra note 6 (explaining our understanding that you
refer to compensation additional to that budgeted by the county commissioners court). As the
answers to your first two questions suggest, the clerk has no authority to supplement the deputies'
county-approved salaries unless the commissioners court had a bonus or supplement plan in place
at the time the deputies performed the work for which the clerk is now attempting to compensate
them and the commissioners court approved the expenditures as Local Government Code section
203.003(5) requires.

        You ask fourth which salaries may be paid using money from the county clerk's records
management and preservation fund. See Request Letter, supra note 1, at 3. In particular, you wish
to know whether Attorney General Opinion GA-0118 applies "to the salaries ofall employees within
the clerk's office or ... to the salary of a particular deputy employed for the specific purpose of
Records Management and Preservation." Id

        Opinion GA-0118 concludes that money in the county clerk's records management and
preservation fund may be used to pay an employee in the clerk's office "only to the extent that the
employee's tasks further specific records management and preservation purposes." Tex. Att'y Gen.
Ope No. GA-0118 (2003) at 6. While GA-0118 uses the: singular term "employee," nothing in the
opinion suggests that the use of the clerk's records management and preservation fund is limited to
a single person employed specifically for records management and preservation purposes. And we
realize that county clerks may delegate the tasks to be performed in the office in different ways.
Some clerks, for example, may have specific designated personnel who perform all of the clerk's
records management and preservation tasks, while other clerks may split the records management
and preservation tasks among an of the clerk's employees. Opinion GA.-O 118 explains that the
records management and preservation fund may not be used to supplement salaries of the clerk's
office generally, without regard to the tasks the employees actually perform. Id. But the fund may
be used to pay that portion ofthe salaries ofany and all employees in the clerk's office who perform
tasks that "further specific records management and preservation purposes" that is proportional to
the amount of time the employee spends on such tasks. Id

        Finally with respect to the use of the county clerk's records management and preservation
fund for salary supplements, you ask whether, if the county treasurer receives a request for
supplements from the county clerk, the treasurer must present the matter to the commissioners court
for the court's approval. See Request Letter, supra note 1, at 3. A county treasurer must pay claims
against the county "as the commissioners court may require or direct." TEX. Loc. GOV'T CODE ANN.
§ 113.041(a) (Vernon 2008). No claim against the county may be paid without the commissioners
court's approval. See ide § 115.021; Crider v. Cox, 960 S.W.2d 703, 706 (Tex. App.-Tyler 1997,
writ denied) (stating that, in a county with an auditor, both the auditor and the commissioners court
are required to separately examine and decide whether to approve each claim against county funds);
The Honorable Hector M. Lozano - Page 7               (GA-0638)



see also Tex. Att'y Gen. Op. No. JC-0307 (2000) at 8 ("Approval of a claim, invoice, or bill by the
commissioners court for payment is an official act ofthe court that must take place at a meeting held
under the" Open Meetings Act.). Consequently, when the county treasurer receives a request for an
expenditure from the county clerk's records management and preservation fund, the treasurer must
present it to the commissioners court for approval. See TEx. Loc. GOV'T CODE ANN. § 113.041(d)
(Vernon 2008). Ofcourse, before the commissioners court may approve the expenditure, the county
auditor must have approved it. See ide § 113.064(a).

II.    Records Management and Preservation Fees Collected Under Code of Criminal
       Procedure Article 102.005

         Your remaining three questions concern the records management and preservation fee
collected from a criminal defendant under Code ofCriminal Procedure article 102.005. See Request
Letter, supra note 1, at 3; see also TEx. CODECRIM. PRoc.ANN. art. 102.005(f) (Vernon 2006). As
amended in 2005, article 102.005(f)-(h) provides:

                       (f) A defendant convicted of an offense in a county court, a
               county court at law, or a district court shall pay a fee of $25 for
               records management and preservation services performed by the
               county as required by Chapter 203, Local Government Code. The fee
               shall be collected and distributed by the clerk of the court to the
               county treasurer, or to an official who discharges the duties
               commonly delegated to the county treasurer, for deposit as follows:

                           (1) $22.50 to the county records management and
               preservation fund for records management and preservation,
               including automation, in various county offices; and

                           (2) $2.50 to the records management and preservation
               fund of the clerk of the court for records management and
               preservation services performed by the clerk of the court.

                      (g) A fee deposited in accordance with Subsection (f) may be
               used only to provide funds for specific records management and
               preservation, including for automation purposes, on approval by the
               commissioners court of a budget as provided by Chapter 111, Local
               Government Code.

                       (h) An expenditure from a records management and
                preservation fund must comply with Subchapter C, Chapter 262,
                Local Government Code [(County Purchasing Act)].

TEX. CODE CRIM. PROC. ANN. art. 102.005(f)-(h) (Vernon 2006) (footnote omitted). Thus, the fee
collected under article 102.005(f) is split, with $22.50 going to the county's records management and
The Honorable Hector M. Lozano - Page 8                         (GA-0638)



preservation fund established under Local Government Code section 203.003(6)8 and $2.50 going
to the records management and preservation fund ofthe clerk ofthe court in which the defendant has
been convicted-either the county clerk's records management and preservation fund established
under Local Government Code section 203.003(5) or the district clerk's records management and
preservation fund recognized by Government Code section 51.317(c)(2). See id art. 102.005(t);
TEX. Loc. GOV'TCODEANN. § 203.003(5) (Vemon2008); TEX. GOV'TCODEANN. § 51.317(c)(2),
(d)-(e) (Vernon Supp. 2007).

        You state that the county clerk in your county has been collecting the fee authorized by article
I02.005(t) and "depositing all into the County Clerk's Records Management [and Preservation]
Fund." Request Letter, supra note I, at 2. You add that the salary supplements we considered in
Part I "have been paid out of' this fund. You therefore ask:

                  [I.] Is the Frio County Clerk entitled to use the $2.50 fee collected
                       under [article] 102.005 ... and deposited into the County
                       Clerk's Records Management [and Preservation] Fund to pay
                       salaries to her deputies as authorized under GA-0118?

                  [2.] What was the breakdown for Records Management [and
                       Preservation fees under article] 102.005 . . . prior to [its
                       amendment in 2005?]

                  [3.] Whether the County Clerk is entitled to collect the $25.00
                       Records Management [and Preservation] Fund fee authorized
                       by [article 102.005] from defendants who have their case
                       dismissed?

Id. at 3.

        In answer to your first question, we conclude that the county clerk may use the $2.50 fee
collected from defendants convicted of an offense in county court or county court at law for any
purpose for which the clerk may use fees collected under Local Government Code sections


           8S ection 203.003(6) of the Local Government Code specifically requires a commissioners court to establish a
"records management and preservation fund for records management and preservation fees authorized under ... Article
102.005(d), Code of Criminal Procedure," among other statutes. TEX. Loc. GOV'T CODE ANN. § 203.003(6) (Vernon
2008). Article 102.005(d) does not authorize the collection of records management and preservation fees, however;
rather, it pertains to fees for issuing certified or noncertified copies. See TEX. CODE CRIM. PROC. ANN. art. 102.005(d)
(Vernon 2006). Article 102.005(t), by contrast, pertains to the collection and distribution ofa records management and
preservation fee. See id art. 102.005(t). Section 203.003(6)'s reference to article 102.005(d) was adopted in 1993 as
part of the same bill that adopted, as article 102.005(d), the substance now found in subarticle (t). See Act of May 30,
1993, 73d Leg., R.S., ch. 675, §§ 4,6, 1993 Tex. Gen. Laws 2506, 2508-09. The substance of the original article
102.005(d) was moved to subarticle (t) in 1995. See Act ofMay 27, 1995, 74th Leg., R.S., ch. 764, § 1, 1995 Tex. Gen.
Laws 3969, 3969-70. The Legislature has not amended section 203.003(6) to now refer to article 102.005(t), but given
section 203.003(6)'s express reference to records management and preservation fees, we construe section 203.003(6)
to refer to such fees authorized under article 102.005(t). See TEX. Loc. GOV'T CODE ANN. § 203.003(6) (Vernon 2008).
The Honorable Hector M. Lozano - Page 9                (GA-0638)



118.011(b)(2) and 118.0216, including salaries. Article 102.005(±)(2) directs that the fee be
deposited into the clerk's records management and preservation fund. TEX. CODE CRIM. PROC. ANN.
art. 102.005(t)(2) (Vernon 2006). Article 102.005(g) authorizes the use offees collected under that
article for "specific records management and preservation, including for automation purposes,"
which is identical to the use that Local Government Code section 118.0216(d) authorizes. Compare
id. art. 102.005(g), with TEX. Loc. GOV'TCODEANN. § 118.0216(d) (Vernon 2008). Ofcourse, the
use ofthe $2.50 fee deposited into a county clerk's records management and preservation fund under
article 102.005(t)(2) of the Code of Criminal Procedure is subject to the same limitations and
conditions as are other monies in that fund. Thus, as Part I of this opinion points out, the county
clerk has no authority to supplement her deputies' salaries outside ofthe normal county process for
setting employee salaries. See TEX. Loc. GOV'T CODE ANN. § 152.011 (Vernon 2008) ("The
commissioners court . . . shall set the amount of the compensation, . . . expenses, and all other
allowances for county ... employees who are paid wholly from county funds."); supra p. 5
(discussing the idea that the commissioners court sets employees' compensation). Nor may the
county clerk award bonuses or supplements to her employees unless the county had in place a bonus
plan at the time the employees performed the work for which they are now receiving bonuses. See
TEX. CONST. art. III, § 53; supra p. 5 (discussing article III, section 53 of the Texas Constitution).
The amount of the supplements must be proportional to the amount of time the employee spent on
records management and preservation. See Tex. Att'y Gen. Ope No. GA-0118 (2003) at 7; supra p.
5. And the county clerk may not expend money from the clerk's records management and
preservation fund without first obtaining the commissioners court's approval. See TEX. CODE CRIM.
PROC. ANN. art. 102.005(g) (Vernon 2006); TEX. Loc. GOV'T CODE ANN. § 203.003(5) (Vernon
2008); supra p. 5 (discussing the commissioners court's approval p.ower).

        Your second question requires us to consider the distribution ofthe fee collected under article
102.005(f) before June 17, 2005, the effective date of legislative amendments to the article. See
Request Letter, supra note 1, at 3; Act of May 28, 2005, 79th Leg., R.S., ch. 804, § 2, 2005 Tex.
Gen. Laws 2775, 2775-76. Prior to amendment in 2005, article 102.005(±) required a $20 fee for
records management and preservation to be distributed "in the same manner as fees are collected and
distributed under Section 51.317(c), Government Code." TEX. CODE CRIM. PROC. ANN. art.
l02.005(t), amended by Act of May 28,2005, 79th Leg., R.S., ch. 804, § 2,2005 Tex. Gen. Laws
2775,2775-76. At that time, however, Government Code section 51.317(b)(4) authorized a district
clerk to collect upon the filing of a suit or an action a $10 fee for records management and
preservation, and subsection (c) directed that the $10 fee be evenly split between the county's fund
for records management and preservation in various county offices and the district clerk's records
management and preservation fund:

                        (1) $5 to the county records management and preservation
                fund for records management and preservation, including automation,
                in various county offices; and

                       (2) $5 to the district clerk records management and
                preservation fund for records management and preservation services
The Honorable Hector M. Lozano - Page 10                         (GA-0638)



                  performed by the district clerk after a document is filed in the records
                  office of the district clerk.

Act of May 28, 2003, 78th Leg., R.S., ch. 1080, § 1, 2003 Tex. Gen. Laws 3103, 3104. From
September 1, 2003-the effective date ofamendments to section 51.317 that split a $10 fee between
the county records management and preservation fund and the district clerk records management and
preservation fund-through June 17, 2005-the effective date of the amendments to article
102.005(f)-there was thus a discrepancy between the amount of the fee collected under article
102.005, Code of Criminal Procedure-$20-and the distribution formula set forth under section
51.317(c), Government Code-which totaled $10. 9 We must determine how the additional $10
collected under article 102.005 should have been distributed between September 1, 2003 and June
17,2005.

         Our primary goal in construing the statutes at issue is to effectuate the Legislature's intent.
See In re Canales, 52 S.W.3d 698, 702 (Tex. 2001); see also Fleming Foods of Tex., Inc. v.
Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (stating that a court should not construe a "specific,
unambiguous" statute "to mean something other than the plain words say unless there is an obvious
error such as a typographical one that resulted in the omission of a word ... or application of the
literal language of a legislative enactment would produce an absurd result" (citing City ofAmarillo
v. Martin, 971 S.W.2d 426,428 n.l (Tex. 1998)). A statute's plain language typically is the best
indicator of legislative intent. Sembera v. Petrofac Tyler, Inc., No. 12-06-00373-CV, 2008 WL
788418, *8 (Tex. App.-Tyler Mar. 26,2008, no pet. h.); see also City ofRockwall v. Hughes, 246
S.W.3d 621,628 (Tex. 2008) ("[O]rdinary citizens [should bel able 'to rely on the plain language
of a statute to mean what it says. '" (quoting Fitzgerald v. AdvancedSpine Fixation Sys., 996 S.W.2d
864,866 (Tex. 1999)). "When a statute's language is clear and unambiguous, it is inappropriate to
resort to rules of construction or extrinsic aids to construe the language." City ofRockwall, 246
S.W.3d at 626 (citing St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997); Ex
parte Roloff, 510 S.W.2d 913, 915 (Tex. 1974)). And a court may consider a statute's legislative


         9 As article 102.005 was originally adopted in 1993, it provided for the collection of a $10 fee "for records

management and preservation services." See Act of May 30, 1993, 73d Leg., R.S., ch. 675, § 6, 1993 Tex. Gen. Laws
2506, 2508-09. The fee was raised to $20 in 1999 without amending the distribution formula in Government Code
section 51.317(c). See Act of May 26, 1999, 76th Leg., R.S., ch. 1031, § 1, 1999 Tex. Gen. Laws 3827, 3827.

          When article 102.005 was originally adopted in 1993, Government Code section 51.317(c) required the officer
collecting the records management and preservation fee under article 102.005 to pay it to the county treasurer "for
deposit in the records management and preservation fund." Act ofMay 30, 1993, 73dLeg., R.S., ch. 675, § 5, 1993 Tex.
Gen. Laws 2506, 2508. The Legislature amended section 51.317(c) in 2003 to split the fee between the county records
management and preservation fund and the district clerk records management and preservation fund. See Act of May
28,2003, 78th Leg., R.S., ch. 1080, § 1,2003 Tex. Gen. Laws 3103, 3104. Records management and preservation fees
collected under article 102.005 before September 1, 2003, when the 2003 amendments to Government Code section
51 .3 17(c) took effect, would be subj ect to the version of section 51.317(c) in effect at that time, and thus should have
been paid to the county treasurer "for deposit in the records management and preservation fund." Act ofMay 30, 1993,
73d Leg., R.S., ch. 675, § 5,1993 Tex. Gen. Laws 2506,2508; see also FISCAL NOTE, Tex. H.B. 1905, 78th Leg., R.S.
(2003) (stating that, under the law before Government Code section 51.317(c) was amended, "the fees collected under
[section 51.317] are deposited into a county Records Management and Preservation Fund").
The Honorable Hector M. Lozano - Page 11                (GA-0638)




history even if the statute is not ambiguous. See ide at 626 n.6 (citing TEX. GOV'T CODE ANN.
§ 311.023(3) (Vernon 2005)).

         On its face, Government Code section 51.317(c) splits the fee evenly between the county's
records management and preservation fund and the district clerk's records management and
preservation fund, although the statute does not expressly state that halfofthe fee is to be distributed
to the county's records management and preservation fund and half to the district clerk's records
management and preservation fund. In hearings on the 2003 bill amending Government Code
section 51.317(c), a member of the House Committee on Judicial Affairs expressed concern about
"lopsiding" the division ofthe fee in favor ofthe district clerk, and Senator Gallegos, who spoke on
the bill before the Senate Committee on Intergovernmental Relations, stated that, under the bill, the
fee would be "allocated equally between the district clerk's records management and preservation
fund and the county clerk's management and preservation fund. Hearings on Tex. HB. 1905 Before
the House Comm. on Judicial Affairs, 78th Leg., R.S. (Apr. 22, 2003) (statements ofRepresentative
Hartnett) (tape available from House Video/Audio Services); Hearings on Tex. S. B. 1905 Before the
Senate Comm. on Intergov'tl Relations, 78th Leg., R.S. (May 22, 2003) (statement of Senator
Gallegos) (tape available from Senate StaffServices Office). Construing section 51.317(c) to require
the fee to be split evenly between the two funds is thus consistent with the statutory language and
the legislative intent.

        Accordingly, we construe article 102.005(f) and section 51.317(c) to split the $20 fee
collected under article 102.005(f) from September 1, 2003, through June 17, 2005, evenly between
the county's records management and preservation fund established under Local Government Code
section 203.003(6) and the district clerk's records management and preservation fund. During this
time period, one-half of the fee, or $10, was to be deposited into the county's records management
and preservation fund and the other half, or $10, was to be deposited into the district clerk's"records
management and preservation fund. The county clerk had no authority to deposit any portion ofthe
fee into the county clerk's records management and preservation fund until June 17, 2005, the
effective date of the amendments to article 102.005. See Act of May 28,2005, 79th Leg., R.S., ch.
804, § 2, 2005 Tex. Gen. Laws 2775, 2775-76; see also ide §§ 8, 9 at 2777 (stating that the
amendments apply only to a fee that becomes payable on or after the act became effective on signing
by the Governor); see also supra note 9 (summarizing the disposition of the fee collected under
article 102.005 before September 1,2003).

       You ask finally whether the county clerk may collect the records management and
preservation fee authorized by Code of Criminal Procedure article 102.005(f) from a defendant
whose case has been dismissed. See Request Letter, supra note 1, at 3; see also TEX. CODE CRIM.
PROC. ANN. art. 102.005(f) (Vernon 2006). Article 102.005(f) directs a clerk to collect a records
management and preservation fee from "[a] defendant convicted of an offense." TEX. CODE CRIM.
PROC. ANN. art. 102.005(f) (Vernon 2006). Article 102.005(b) sets out the meaning of "[a]
defendant convicted of an offense":

                In this article, a person is considered convicted if:

                        (1) a sentence is imposed on the person;
The Honorable Hector M. Lozano - Page 12              (GA-0638)



                       (2) the person receives community supervision, including
                deferred adjudication; or

                       (3) the court defers final disposition of the person's case.

Id. art. l02.005(b).

       Because a defendant whose case is dismissed is not listed in article 102.005(b) as a person
who is considered to be convicted, we must conclude that the clerk may not collect a records
management and preserVation fee from such a defendant.
The Honorable Hector M. Lozano - Page 13            (GA-0638)



                                     SUMMARY

                     A county clerk may expend money in the county clerk's
             records management and preservation fund to pay deputies' salaries,
             but only subject to the following conditions: First, a county clerk
             may not supplement salaries the county commissioners court has set
             in accordance with statutory budgeting procedures unless the county
             had in place, at the time the deputies were performing the work for
             which the clerk seeks to compensate them, a bonus or supplement
             plan. In addition, a county clerk may not supplement her deputies'
             salaries from the clerk's records management and preservation fund
             wi~hout the prior approval of the commissioners court and without
             considering whether the supplement is proportional to the amount
             of time each employee spends on specific management and
             preservation, including automation purposes. The county clerk's records
             management and preservation fund may be· used to pay that portion
             of the salaries of any and all employees in the clerk's office who
             perform tasks that further specific records management and
             preservation purposes.

                     Ifthe county treasurer receives a request from the county clerk
             for money from the clerk's records management and preservation
             fund to supplement salaries of deputies in the clerk's office, the
             treasurer must ensure that the claim is first approved by the county
             auditor and then by the commissioners court.

                     A county clerk may use the $2.50 records management and
             preservation fee collected under Code of Criminal Procedure article
             102.005(f) from defendants convicted of an offense in county court
             or county court at law for any purpose for which the clerk may use
             fees collected under Local Government Code sections 118.011(b)(2)
             and 118.0216. The use of the fee is subject to the conditions set out
             above.

                     Between September 1, 2003, and June 17, 2005, the records
             management and preservation fee collected under Code of Criminal
             Procedure article 102.005 was to be evenly split between the county's
             records management and preservation fund established under Local
             Government Code section 203.003(6) and the district clerk's records
             management and preservation fund, with $1 0 going to each fund.
             The county clerk's records management and preservation fund was
             not at that time authorized to receive any portion of the fee collected
             under article 102.005.
The Honorable Hector M. Lozano - Page 14            (GA-0638)



                     A county clerk may not collect a records management and
              preservation fee under article 102.005(f) from a defendant whose case
              has been.dismissed.

                                            Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
