                               ATTORNEYGENERAL                     OF    TEXAS
                                            GREG        ABBOTT




                                               October 28,2003



Ms. Betty Jez                                         Opinion No. GA-01 18
Austin County Auditor
One East Main                                         Re: Whether records management and preservation
Bellville, Texas 774 18                               fees collected under section 118.011 (b)(2), Local
                                                      Government Code, may be used to pay salaries in the
                                                      county clerk’s office (RQ-005 5 -GA)

Dear Ms. Jez:

         You ask whether records management        and preservation fees collected under section
118.011 (b)(2) of the Local Government Code may be used to pay salaries of personnel in the county
clerk’s office.’ See TEX. Lot. GOV’T CODE ANN. 9 118.01 l(b)(2) (Vernon Supp. 2003). Your
questions require us to interpret section 118.02 16 of the same code, which restricts the fees’ use.
See id. tj 118.0216(a), (d).

I.      The Underlvirw Controversy

         In September 2002 the county clerk of Austin County sued Austin County commissioners,
alleging that the commissioners court appropriated records management and preservation fees to pay
the salary of an employee in the clerk’s office contrary to Local Government Code section 118.02 16.
See Plaintiffs Original Petition, Application for Temporary Restraining Order, Application for
Temporary Injunction, and Petition for Writ of Mandamus, Gregor v. Austin County, No. 2002V-
0060 (155th Dist. Ct. Sept. 12,2002). According to the clerk’s petition, in August 2001, “before the
2001-2002 budget came into effect on October 1,200 1,” the commissioners court “directed” her “to
pay an employee in her office from” records management and preservation fees. Id. at 4. If she
refused, the petition alleges, the commissioners court “would cut her budget and she would have to
‘get rid of an employee.” Id. “Faced with this ultimatum[,] . . . [she] agreed to use $20,000.00 of
the” records management and preservation fees for one year. Id. Again, “[d]uring budget hearings
in 2002, and before the 2002-2003 budget” came into effect on October 1,2002, the commissioners
court “directed” the clerk “to either pay for an employee from records management fees or a position
would be eliminated.” Id. Rather than accede to this direction, the clerk calculated “the amount of
time that one deputy works on specific records management projects” and subsequently authorized



         ‘See Letter from Ms. Betty Jez, Austin County Auditor, to Honorable Greg Abbott, Texas Attorney General,
at l-2 (May 13,2003) (on file with Opinion Committee) [hereinafter Request Letter].
Ms. Betty Jez - Page 2                               (GA-01 18)




expending $7,000 from records management and preservation fees. Id. The commissioners court
then reduced the clerk’s office’s funding. Id. at 5. See generally Plaintiffs First Amended Original
Petition, Application for Temporary Restraining Order, Application for Temporary Injunction,
Original Petition for Declaratory Judgment and Petition for Writ of Mandamus, Gregor v. Austin
County, No. 2002V-0060 (155th Dist. Ct. Sept. 30,2002).

         Ultimately, the commissioners   court and the clerk settled the lawsuit. See Settlement
Agreement, Gregor v. Austin County, No. 2002V-0060 (155th Dist Ct. Oct. 24, 2002). In the
settlement, the county clerk agreed to use $7,000 from records management and preservation fees
in the 2002-2003 budget year. See id. at 1. The parties further agreed that a “neutral” county office,
“such as the County Auditor,” would request an attorney general opinion to determine whether
records management and preservation fees may be used to pay salaries in a county clerk’s office.
Id. at 2. Given that “the controversy has been amicably compromised and settled,” the court
dismissed the lawsuit without prejudice. Agreed Order Dismissing Suit Without Prejudice, Gregor
v. Austin County, No. 2002V-0060 (155th Dist. Ct. Nov. 13,2002).

         You accordingly ask whether records management and preservation fees may be used to pay
salaries; if so, you then ask whether the amount of fees allocated must be proportional to the amount
of records management and preservation services performed in the county clerk’s office. You further
ask how duties related to “specific records management and preservation, including for automation
purposes” may be distinguished from those that are not. TEX. LOC.GOV’T CODEANN. 8 118.02 16(d)
(Vernon Supp. 2003); see Request Letter, supra note 1, at l-2.

II.     Statutes Pertainiw        to Records Management          and Preservation Fees

         Section 118.011 of the Local Government Code sets out a county clerk’s fee schedule for
non-court-related  fees. See TEX. Lot. GOV’T CODE ANN. § 118.011 (Vernon Supp. 2003).
Subsection (b)(2) permits a county clerk to “set and collect . . . from any person” who files a
document a records management and preservation fee of $5 or less. Id. 9 118.011 (b)(2); see id.
5 118.0216(b) (indicating that the fee must be paid when a non-court-related document is filed). The
county commissioners     court is required to deposit the fees into a records management and
preservation fund and to “approve in advance any expenditures from the fund, which may be spent
only for records management preservation or automation purposes in the county.” Id. 5 203.003(6)
(Vernon 1999).

         Section 118.0216(a) specifies that the records management and preservation fee collected
under section 118.011 “is for the records management and preservation services” the county clerk
performs after a document is filed and recorded in the clerk’s office. Id. 8 118.0216(a) (Vernon
Supp. 2003). While subsection (a) articulates the fee’s purpose, subsection (d) expressly limits the
fee’s use: “The fee may be used only to provide funds for specific management and preservation,
including automation purposes.“2 Id. jj 118.02 16(d).



         2Counties that adjoin an international boundary are subject to additional requirements, see TEX. LOC. GOV’T
CODEANN. $ 118.0216(c),      (e) (V emon Supp. 2003), but as Austin County does not border Mexico, we do not address
these additional requirements.
Ms. Betty Jez - Page 3                          (GA-01 18)




III.   Whether a County Mav Use Records Management                  and Preservation     Fees to Pay
       Salaries of County Clerk’s Office Employees

         You ask first whether section 118.0216 excludes paying salaries in the county clerk’s office
“as a matter of law.” Request Letter, supra note 1, at 1. You observe that “some level of human
labor” is involved in managing and preserving the clerk’s records. Id. at 4, 6. As you further
observe, however, the statute does not expressly include salaries as a permissible use of the funds.
Id. at 8.

         You aver that the county clerk “originally based her contention that salaries were not an
appropriate expenditure . . . upon” section 118.0216’s language prior to its amendment in 2001. Id.
at 4; see Act of May 22,2001,77th Leg., R.S., ch. 794,200l Tex. Gen. Laws 1542,1542-44.         That
previous version of section 118.02 16 permitted a county to use records management and preservation
fees “only to provide funds for specific records preservation and automation projects.” Act of May
26,1991,72d     Leg., R.S., ch. 587,§ 2,199l Tex. Gen. Laws 2104,2105, amended by Act of May
22,2001,77th     Leg., R.S., ch. 794, 8 3,200l Tex. Gen. Laws 1542, 1542.

         A 1993 opinion of the El Paso court of appeals and a 1998 opinion of this office considered
what constitutes a records preservation and automation project for purposes of the pre-200 1 statute.
See Hooten v. Enriquez, 863 S.W.2d 522, 531-32 (Tex. App.-El Paso 1993, no writ); Tex. Att’y
Gen. Op. No. DM-492 (1998) at 3-8. In the judicial opinion, Hooten v. Enriquez, a unanimous court
concluded that section 118.0216 vests “exclusive authority to . . . designat[e] . . . exactly what
constitutes record keeping, preservation, and automation in the county clerk’s office” in the county
clerk. Hooten, 863 S.W.2d at 53 1. A concurring opinion specifically considered the meaning of the
word “project”:

        It is not clear what the word “projects” means in its statutory context. The dictionary
        defines “project” among other things as “aplanned undertaking” such as “a definitely
        formulated piece of research.” WEBSTER’SNEWCOLLEGIATE            DICTIONARY   (Merriam
        1980). Another dictionary defines the word as “an undertaking requiring concerted
        effort. ” AMERICANHERITAGEDICTIONARY(Houghton Mifflin 1985). Thus,
        whenever an employee of the county clerk is assigned a specific task or duty relating
        to records preservation, I would take it that the employee is engaged in a records
        preservation project.

Id. at 534 (Koehler, J., concurring). While the majority opinion did not expressly address the use
of records management and preservation fees to pay salaries of employees in the county clerk’s
office, the concurring opinion suggested that a commissioners court’s order designating a percentage
of specific employees’ salaries and benefits to be paid from records management and preservation
fees was beyond the commissioners’ discretion, implying that salaries and benefits were not part of
a specific records preservation project. See id.

       In Attorney General Opinion DM-492 this office interpreted Hooten to require that a
county clerk and the commissioners court each play “a role” in deciding “how funds in a section
Ms. Betty Jez - Page 4                            (GA-01 18)




118.02 16 account are used.” Tex. Att’y Gen. Op. No. DM-492 (1998) at 6. Nevertheless, records
management and preservation fees “may not be diverted from [their] statutorily assigned purposes
to pay other expenses of the clerk’s office.” Id. at 8. Finally, the attorney general invited the
legislature to define the phrase “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.” Id. at 9.

       Then, in 2001 the legislature amended section 118.02 16 by inserting the word “management”
and changing the word “projects” to “purposes”:

                The fee may be used only to provide funds for specific records management
        and preservation, including for [and] automation purposes [pre+&].

Act of May 22,2001,77th Leg., R.S., ch. 794,s 3, sec. 118.0216,2001 Tex. Gen. Laws 1542,1542.
Changing the word “projects” to “purposes” had first been proposed in the previous session, less
than one year after this office invited the legislature to clarify section 118.0216, in Senate Bill 1193.
See Tex. S.B. 1193, 76th Leg., R.S., 8 3 (1999). Senate Bill 1193 did not pass in 1999, but the
change from the word “projects” to the word “purposes” was carried forward to House Bill 370 in
the subsequent legislature. See TEX. HOUSERESEARCH            ORG.,BILLANALYSIS,Tex. H.B. 370,77th
Leg., R.S. (2001) at 3. In addition, House Bill 370 inserted the words “management and” between
“records” and “preservation.” See Act ofMay22,2001,77thLeg.,             R.S., ch. 794,§ 3, sec. 118.0216,
2001 Tex. Gen. Laws 1542, 1542. Neither amendment was discussed during committee hearings
on the bills. See Hearings on Tex. H.B. 370 Before the House Comm. on County Affairs, 77th Leg.,
R.S. (Mar. 21, Apr. 4, and Apr. 9’2001) (tape available from House Video/Audio Department);
Hearings on Tex. H.B. 370 Before the Senate Comm. on Intergov ‘tl Relations, 77th Leg., R.S. (May
9 and May 11,200l) (tape available from Senate Staff Services Office); see also Hearings on Tex.
S.B. I1 93 Before the Senate Comm. on Intergov ‘tl Relations, 76th Leg., R.S. (Mar. 24 and Apr. 7,
1999) (tape available from Senate Staff Services Office).

         In our opinion, the 2001 amendments broadened the class of permissible uses for records
management and preservation fees. Although the exact meaning of the phrase “specific records
management and preservation, including for automation purposes” in section 118.0216(d) is not
clear, TEX. Lot. GOV’T CODE ANN. 5 118.0216(d) (Vernon Supp. 2003), the legislature plainly
meant to alter the statute’s meaning. See TEX. GOV’T CODEANN. 8 3 11.021 (Vernon 1998) (stating
that legislature, in enacting a statute, presumes the entire statute to be effective, as well as to provide
a just and reasonable result).

        First, the added term “management” increases the number of uses to which the fee may be
put. Section 118.025(a)(2) of the Local Government Code defines the term “preservation” in the
records archive context to mean a process that:

                (A) suspends or reduces the deterioration      of public documents;   or
Ms. Betty Jez - Page 5                                   (GA-01 18)




                 (B) provides public access to the public documents in a manner that reduces
         the risk of deterioration, excluding providing public access to public documents
         indexed geographically.3

TEX. Lot.     GOV’T    CODE ANN.    118.025(a)(2) (V emon Supp. 2003); see also id. 9 118.01 l(f), as
                                       8
amended by Act of May 28,2003,78th         Leg., R.S., ch. 974,s 1,2003 Tex. Sess. Law Serv. 2858,
2858 and Act of May 20,2003,78th Leg., R.S., ch. 1275’4 2(105), 2003 Tex. Sess. Law Serv. 4140,
4146; Yale-New Haven Hosp., Inc. v. Jacobs, 779 A.2d 222, 227 n.7 (COM. App. Ct.) (quoting
BLACK’SLAW DICTIONARY (6th ed. 1990)) (defining the term “preservation” as “[kleeping safe from
harm; . . . saving . . . that which already exists”), cert. denied, 782 A.2d 1254 (Conn. 2001). By
contrast, the phrase “records management” is defined for purposes of the Local Government Records
Act to include numerous activities beyond preservation:

                  “Records management” means the application of management techniques to
         the creation, use, maintenance, retention, preservation, and disposal of records for the
         purposes of reducing the costs and improving the efficiency of recordkeeping.       The
         term includes the development of records control schedules, the management of
         filing and information retrieval systems, the protection of essential and permanent
         records, the economical and space-effective storage of inactive records, control over
         the creation and distribution of forms, reports, and correspondence,            and the
         management of micrographics and electronic and other records storage systems.

TEX. Lot. GOV’T CODE ANN. 9 201.003(13) (V emon Supp. 2003); see also id. 8 201.001 (Vernon
1999) (titling act).4

         Second, the word “purposes” is broader than the word “projects.” Ordinarily, the word
“purpose” denotes “‘the thing to be accomplished.“’ In re Okla. Capitol Improvement Auth., 2003
WL 21295711, 2003 OK 59, *3 (Okla. June 3, 2003) (stating that this definition of the word
“purpose” comports with the word’s “natural and ordinary meaning”). A “project,” on the other
hand, as Hooten suggests, is a discrete undertaking or endeavor. See Hooten, 863 S.W.2d at 534;
cJ: TEX. GOV’T CODE ANN. 9 1509.15 1 (Vernon 2000) (defining the phrase “garbage reclamation
project”); TEX. Lot. GOV’T CODEANN. 89 245.001(3) (Vernon 1999 & Supp. 2003), 392.002(6),
392.053(a), 393.003(4), 43 1.021(9) (defining the terms “project” and “housing project”); TEX.
WATER CODE ANN. 50 12.051(a)(l) (V emon 2000) (defining “federal project”), 15.97 l(5), as



          3Because section 118.02 16 used the term‘preservation”    before section 118.025 was enacted, section 118.025’s
definition does not necessarily apply. See Tex. Att’y Gen. Op. No. DM-425 (1996) at 3 (stating that a construer may
import a definition from one statute into a later enacted statute only); cf: Brown v. Dan-h, 50 S.W.2d 261,263 (Tex.
1932) (stating that a word in one statute that is used, in the same sense, in a subsequently adopted statute on the same
subject matter generally means the same thing). But in this situation, the statutes use the term “preservation” in the same
sense, with the same purpose of saving existing records for historical reasons, so that section 118.025’s definition can
be applied to section 118.02 16. See TEX. GOV’T CODEANN. 5 3 11 .Ol l(b) (V emon 1998) (directing that “[wlords . . .
that have acquired a technical or particular meaning . . . by legislative definition . . . shall be construed accordingly”).

         4We apply this definition to section 118.0216(d) because it was enacted prior to the adoption of section
118.0216,seeActofMay29,       1989,71stLeg.,R.S.,ch.   1248,s l,sec.201.003(13), 1989Tex.Gen.Laws4996,4998,
and because both section 118.02 16 and the Local Government Records Act pertain to government records.
Ms. Betty Jez - Page 6                            (GA-01 18)




amended by Act of May 20,2003,        78th Leg., R.S., ch. 1275, 8 2(142), 2003 Tex. Sess. Law Serv.
4140,4148 (defining “project”).

         Despite these broadening amendments, the legislature retained the adjective “specific,”
which suggests that the legislature intended to limit the category of the fees’ permissible uses to
identifiable records management and preservation purposes only. The term “specific” commonly
is synonymous with the term “distinguishable.”       See In re Estate of Brown, 922 S.W.2d 605, 607
(Tex. App.-Texarkana      1996, no writ) (describing a bequest as specific if it is described in a will with
such particularity that the bequeathed property is distinguished from all of the testator’s other
property); see also XVI OXFORDENGLISHDICTIONARY157 (2d ed. 1989) (defining the term
“specific” as constituting one of the characteristic features of a certain class of things); TEX. GOV’T
CODE ANN. § 3 11 .Ol 1 (Vernon 1998) (directing a construer to define a statute’s terms using the
common definition).

        Accordingly, records management and preservation fees may be used only for specific
records management and preservation purposes. See TEX. LOC. GOV’T CODEANN. 9 118.0216(d)
(Vernon Supp. 2003). Paying the salaries of personnel 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.

          Section 203.003(6), which restricts the purposes for which a county commissioners court may
approve the use of records management and preservation fees to “records management preservation
or automation purposes in the county,” id. 8 203.003(6) (Vernon 1999), should be construed
identically. Logically, section 118.0216(d) and section 203.003(6) place the same restrictions on
the use of the same fees. Given that section 118.0216(d) contains the legislature’s most recent
pronouncement on permissible uses of records management and preservation fees, we believe that
section 203.003(6) should be read to mean the same thing as section 118.0216(d). See TEX. GOV’T
CODE ANN. 8 311.021(2), (3) (Vernon 1998) (d’       u-ecting a construer to presume that the legislature
intended an entire statute to be effective and to provide a “just and reasonable result”); c$
Commercial Standard Fire & Marine Co. v. Comm ‘r of Ins., 429 S.W.2d 930, 933 (Tex. Civ.
App.-Austin 1968, no writ) (stating that inconsistencies in earlier enacted general statute must yield
to later enacted special statute).

IV.     Whether Records Manapement and Preservation Fees that are Allocated to Salaries
        Must be Allocated in “Some Proportion” to the Actual Accomplishment of Records
        Manapement and Preservation Purposes

        You next ask whether, if section 118.0216(d) does not exclude paying salaries, the funds
provided for salaries must “be allocated” in “proportion to the actual performance of Records
Management ‘services’ and ‘purposes. “’ Request Letter, supra note 1, at 2.

         Records management and preservation fees 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. Using the fees for a purpose other than specific records management and
preservation purposes is not permitted. See TEX. LOC. GOV’T CODEANN. 8 118.0216(d) (Vernon
Ms. Betty Jez - Page 7                          (GA-01 18)




Supp. 2003); Tex. Att’y Gen. Op. No. DM-492 (1998) at 8 (reiterating that the records management
and preservation fund “may not be diverted from its statutorily assigned purposes to pay other
expenses of the clerk’s office”).

        Thus, records management and preservation fees may be used to 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 automation purposes.” TEX. LOC. GOV’T CODE
ANN. 5 118.0216(d) (Vernon Supp. 2003).


V.      Activities of the County Clerk and Staff that Serve Specific Records Management            and
        Preservation Purposes

          Finally, you ask which activities performed by a county clerk’s office serve specific records
management and preservation purposes. See Request Letter, supra note 1, at 2. You note that “[i]t
is difficult to imagine any” document processing or handling that, “once filed with the Clerk, . . .
does not require some level of ‘management and preservation.“’ Id. at 6.

           Records management and preservation fees generally may not be used to pay a clerk’s office
expenses associated with filing and recording a document.           See TEX. LOC. GOV’T CODE ANN.
4 118.0216(a) (V emon Supp. 2003); Tex. Att’y Gen. Op. No. DM-492 (1998) at 7. As this office
previously has suggested, when, in the course of the traditional method of recording a document, a
clerk records an instrument in a “‘well-bound book,’ . . . records management and preservation
 . . . occur[s] later, for example, when the paper records are stored under conditions that will prevent
deterioration or are copied in a more permanent media.” Tex. Att’y Gen. Op. No. DM-492 (1998)
at 7 (citing TEX. LOC.GOV’T CODEANN. $0 191.002,193.001,193.003).            Thus, records management
and preservation fees may not be used to pay the expenses, including the costs of an employee’s
time, incurred in recording an instrument in a book.

          On the other hand, the fees may be used to pay records management costs, which include the
activities listed in the Local Government Records Act’s definition of the term, such as developing
records control schedules; managing filing and information retrieval systems; storing inactive
records; and managing records storage systems. See TEX. LOC. GOV’T CODEANN. 8 201.003( 13)
(Vernon Supp. 2003). Additionally, if a particular clerk’s recording process includes microfilming
documents as they are filed and recorded and the clerk has designated “the use of microfilm” as “‘a
specific records management and preservation [purpose],“’ records management and preservation
fees may be used to pay microfilming expenses including the salaries associated with that task. Tex.
Att’y Gen. Op. No. DM-492 (1998) at 7 (quoting TEX. Lot. GOV’T CODEANN. 8 118.0216(d)).

         Whether a particular activity of a clerk’s office accomplishes specific records management
and preservation purposes and therefore may be funded with records management and preservation
fees is a question requiring factual determinations and is beyond the scope of an attorney general
opinion. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1 (stating that opinion process does not
determine facts). In accordance with Hooten, it is the county clerk’s duty to designate “exactly what
constitutes record keeping, preservation, and automation in the county clerk’s office” (as well as
Ms. Betty Jez - Page 8                    (GA-01 18)




records management).   Hooten, 863 S.W.2d at 53 I. Given the county commissioners court must
“approve in advance any expenditures” from the records management and preservation fund, TEX.
Lot. GOV’T CODE ANN. 8 203.003(6) (Vernon 1999)’ however, the county clerk and the
commissioners court both play “a role” in determining the “specific records management and
preservation, including for automation purposes” for which the county will spend records
management and preservation fees. See Hooten, 863 S.W.2d at 531; Tex. Att’y Gen. Op. No.
DM-492 (1998) at 6; TEX. Lot. GOV’T CODEANN. 5 118.0216(d) (Vernon Supp. 2003).
Ms. Betty Jez - Page 9                        (GA-01 18)




                                       SUMMARY

                          Under section 118.02 16 of the Local Government Code,
                 records management and preservation fees may be used to pay the
                 salaries of employees in the clerk’s office to the extent that the
                 employees’ activities accomplish “specific records management
                 and preservation . . . purposes.” TEX. LOC. GOV’T CODEANN.
                 8 118.0216(d) (V emon Supp. 2003). It is the county clerk’s duty
                 to designate what constitutes specific records management and
                 preservation   purposes,   although records management         and
                 preservation fees may not be expended without the county
                 commissioners court’s approval.

                                              Very truly yours,




                                                           neral of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
