                              QBffice of the 2lttornep Qkneral
                                        &ate of Qkxae
DAN MORALES                                   September 21,1992
 ATTORNEY
      GENERAL


     Honorable John Vance                                  Opinion No. DM-166
     CXminal District Attorney
     Dallas County                                         Re: Whether charges for uncertified
     133 North Industrial Boulevard                        copies of records of judiciary in district
     LB 19                                                 clerk’s office are set by section 9(d) of
     Dallas, Texas 752074313                               article 6252-17a, V.T.C.S. (RQ-183)

     Dear Mr. Vance:

             You request advice as to the costs that may be charged by the Dallas County
     District Clerk for copies of documents in his office. In particular, you ask whether
     section 9(d) of the Open Records Act, V.T.C.S. article 6252-17a, establishes the
     charges for noncertified records from the district clerk’s office.

             We note initially that the Open Records Act does not apply to records of the
     judiciary. V.T.C.S. art. 6252-17a, 5 2(1)(H). The district clerk is responsible for
     maintaining records of lawsuits and other records of the judiciary, and such records
     are not subject to the Open Records Act. 1 Gov’t Code 5 51.303; Mustard v. State,
     711 S.W.2d 71 (Tex. App.--Dallas 1986, pet. refd), cert. denied, 484 U.S. 916 (1987);
     Attorney General Opinion H-826 (1976) (Open Records Act does not apply to
     records of judicial proceedings maintained by the district clerk); Open Records
     Decision No. 274 (1981) (Open Records Act does not apply to judicial records in
     custody of municipal court clerk). The Open Records Act neither authorizes
     information held by the judiciary to be withheld nor requires it to be disclosed, but
     leaves unchanged the status of that branch of government with respect to
     information held by it. Attorney General Opinion H-826; Open Records Decision
     No. 25 (1974).



              Udike the county clerk, who has admiitrative duties as clerk for the commissioners coort
     and is the officid recorder for the county, the duties of the district clerk arc almost entirely judicial. 35
     D. BROOKS,COLINIYANDSPECIAL Dtsrxucr LAW $22.29 at 104 (Texas Pradice 1989). But see Local
     G&t Code B 114.046 (county officers compensated on a fee basis must file report of fees,
     eommisions, and compensation with the district court).




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Honorable John Vance - Page 2          m-166)




        Rule 76a of the Texas Rules of Civil Procedure addresses the availability to
the public of court records in civil cases. The Supreme Court adopted this rule to
establish guidelines for sealing court records in civil cases. Gov’t Code 0 22.010.
Rule 76a provides in part:

         1. Standard for Sealing Court Records. Court records may not
         be removed from court files except as permitted by statute or
         rule. No court order or opinion issued in the adjudication of a
         ca!iemaybesealed.    othercourtrec~ardefinedinthisnde,
         areprenunedtobeopentothegeneml~~andmavbesealed
         only upon a showing of all of the following [conditions] . . . .
         2. Court Records.     For purposes of this rule, court records
         means:
             (a) all documents of any nature filed in connection with any
         matter before any civil court, except:
                   [exceptions for documents filed in camera, to obtain
         ruling on discovery; for documents to which access is otherwise
         restricted by law; and for documents in action under Family
         CoW
              (b) settlement agreements not Sled of record, excluding all
         reference to any monetary consideration, that seek to restrict
         disclosure of information concerning matters that have a prob-
         able adverse effect upon the general public health or safety, or
         the administration of public office, or the operation of govem-
         ment.
              (c) discovery, not filed of record, concerning matters that
         have a probable adverse effect upon the general public health or
         safety, or the administration of public office, or the operation of
         government, except discovery in cases originally initiated to
         preserve bona fide trade secrets or other intangible property
         rights.
Tex. R. Civ. P. 76a (emphasis added). Rule 76a provides for public notice of a
motion to seal court records and a public hearing on the motion. Id 08 3.4. Non-
parties may intervene as a matter of right to participate in this hearing. Id 8 4.




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Honorable John Vance - Page 3            (m-166)




        Access to documents in court files not defined as court records by rule 76a
remains governed by existing law. Id 0 9. Thus, sources of law other than rule 76a
still apply to some records of the judiciary. Jn the absence of a statute, inspection of
judicial records is controlled by the common law. See Pakacios v. Corkit, 172 S.W.
777 (Tex. Civ. App.-San Antonio 1915, writ refd). The United States Supreme
Court observed in Nixon v. Warner Communications, Inc, 435 U.S. 589 (1978) that
the courts of this country recognize a general right to inspect and copy public
records, inchtding judicial records. 435 U.S. at 597. Relying on Nixon, a Texas court
has concluded that the public has a right to inspect and copy judicial records, subject
to the court’s inherent power to control public access to its records. AshpoZe v.
MZlanf, 778 S.W.2d 169,170 (Tex. App.-Houston [lst Dist.] 1989, no writ). In cases
where rule 76a does not apply, it is within the court’s discretionary authority to
order judicial records sealed, but this authority does not extend beyond the period
of the court’s plenary power over an order or judgment, Id Another court of
appeals cited Nixon to conclude that a common-Jaw right to copy and inspect
judicial records exists, subject to trial judge’s discretion to seal records in particular
cases. Time.sHen&i Phting Co. v. Jones, 717 S.W.2d 933 (Tex. App.-Dallas 1986),
@igment vucated, cuuse d&&d per curiam, 730 S.W.2d 648 (T&L 1987). The
supreme court vacated the judgment and dismissed the cause, because the motion to
useal the court records was filed after the trial court had lost plenary power over its
judgment. 730 S.W.2d at 649. See alro Alamo Motor Lines, Inc v. hamational Bhd.
$ T~~~~,r~,~~~rn~~.~y~J~“~                                 4m..,~kaU..h.     k. 67,229
 S.W.2d 112 (Tex Civ. App.-San Antonio 1950, no writ) (right to inspect and copy
 decision of the court of civil appeals); Attorney General opinion H-826 (public
 right of access to judicial records); 20 AM. JUR. 26 Co&s 0 61 (right to inspect
 court records includes right to make copies).

        Section 9 of the Gpen Records Act provides in part:

               (a) The cost to any person requesting noncertified
           photographic reproductions of public records comprised of
           pages up to legal size shah not be excessive. The State
           Purchasing and General Services Commission shah from time to
           time determine guidelines on the actual cost of standard sixed
           reproduction and shah periodically publish those cost figures for
           use by governmental bodies in determining charges to be made
           pursuanttothisAct....




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Honorable John Vance - Page 4              (DM-166)




               (b) Charges made for access to public records comprised in
          any form other than up to standard sized pages or in computer
          record banks, microfilm records, or other similar record keeping
          systems, shah be set upon wnsultation between the officer for
          public records and the State Purchasing and General Services
          Commission....
               ....
              (d) The charges for wpies made in the district clerk’s office.
          and the county clerk’s office may not be grwter than the actual
          cost of the copiesas pmvidedin Subsections (a) and (b) of this
          sectiont4nless
                       a c@ied record,the costfor whichis set by hw, is
          requested

V.T.C.S. art. 6252-17a, 9 9 (emphasis added).

       Section 9(d) must be read in the context of the Gpen Records Act, which
gives members of the public the right to inspect and copy public information in the
custody of governmental bodies, but does not grant any right to inspect information
in the custody of the judiciary. See V.T.C.S. art. 6252-17a, 0s 2(l)(H), 4. Section
9(d) also incorporates the charges established in sections 9(a) and (b) of the Gpen
Records Act, which apply to charges for copies of “public records,” and for access to
@publicrecords” maintained in any form other than standard sized pages. Section
9(d) establishes the charges for copies of records in the custody of the district clerk’s
office and the county clerk’s office that are available under the Gpen Records Act.
See He&rich v. BowzI of Trustees, 525 S.WL?d930, 932 (Tex Civ. App.-Houston
[1st Dist.] 1975, writ ref d n.r.e.) (sections 9(c), (d), (e), and (f) all relate to copies of
public records). It does not establish the charges for records of the judiciary in the
custody of the district clerk

       Sections 51.318 and 51.319(5) of the Government Code establish fees to be
charged by the district court for wpies of records of tire judiciary. Section 51.318
provides in part:

               (a) In addition to a fee under Section 51.317 [due at time a
           lawsuit is filed] the district clerk shall collect at the time the
           service is performed or at the time the service is requested the
           fees provided by Subsection (b) for services performed by the
           clerk.


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Honorable John Vance - Page 5                             m-166)




                (b) The fees are:
                ....
                (11) for a certified copy of a record, judgment, order,
                pleading, or paper on tile or of record in his office, inchming
                certificate and seal, for each page or part of a
                pa%e...............................................................................................Sl
Gov’t Code S 51.318.

        Section 51318(b)(ll) was amended in 1991. Acts 1991, 72d Leg., ch. 186,
0 2, at 808,809. Prior to amendment, it provided as follows:

          for a copy, other than a photocopy,of a record, judgment, order,
              pleading, or paper on file or of record in his office, whether
               certifkd or not, including certificate and seal, for each page
               or part of a page ..........................................................................Sl

Acts 1985,69th Leg., ch. 480,s 1, at 1983 (emphasis added).

        The 72d Legislature adopted House Bill No. 202, which amended a mtmber
of provisions on wurt fees, including section 51318(b). Acts 1991,72d Leg., ch. 186,
0 2, at 808,809. When House Bill 202 was introduced, it proposed to amend section
51318(b)(ll) by deleting the language “other than a photocopy,” italicized in the
above quotation. The bill analysis stated that, as a result of this deletion, “all copies
on file in the district clerk’s office, including photocopies, will now be Sl [one dollar]
per page whether certified or not.” House Comm. on Judicial Affairs, Bill Analysis,
H.B. 202,726 Leg. (1991) at 2.

        However, the House Committee on Judicial Affairs amended House Bill 202
by adopting the language ultimately enacted as section 50.318(11). As amended by
the committee, this section applied the fee it charged only to certified copies,
instead of ah copies. House Gomm. on Judicial Affairs, supm at 4 (committee
Amendments). The bill analysis prepared by the House Research Grganization on
House Bill 202 stated that the bill, as amended, “would limit the current Sl [one
dollar] fee for obtaining any copy of a record from a district clerk to certified copies.”
House Research Organization, Daily Floor Report, April 9,1991, at 15 (emphasis in
original). Thus, the cost for a page established by section 51.318(11) applies only to
copies of certified records of the district clerk’s office. As the legislative history that



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Honorable John Vance - Page 6           (m-166)




accompanied this provision shows, the legislature did not intend the fee of one
dollar (Sl.00) per page to apply to copies of noncertified documents from the
district clerk’s office.

        No provision expressly sets a fee for a copy of a noncertified record in the
district clerk’s office. However, we believe the fee should be set pursuant to section
51319(S) of the Government Code, which provides as follows:
              The district clerk shall collect the following fees for services
          performed by the clerk:


               (5) for performing any other service prescribed or
          authorized by law for which no fee is set by law, a reasonable
          fee.
See Attorney General opinions H-552 (1975) (under similar statute, county clerk
may charge reasonable fee for noncertified copies of records); H-453 (1974) (fee in
eminent domain proceedings); see ulro Attorney General opinion JM-757 (1987)
(discussing charge for copying public records in county clerk’s office). Accordingly,
the district clerk may collect a reasonable fee for providing noncertified copies of
records of the judiciary to individuals. Since the legislature refused to permit the
district clerk to wllect a fee of one dollar ($1.00) per page for noncertified records,
we believe that amount would be an unreasonable charge as a matter of law.


                                 SUMMARY

               The charges established by section 9(d) of the Gpen
          Records Act, V.T.C.S. article 6252-17a, for copies made in the
          district clerk’s office do not apply to copies of records of the
          judiciary held by the district clerk. Rule 76a of the Texas Rules
          of Civil Procedure, provides that wurt rewrds, as defined in the
          rule, are presumed to be open to the public and may be sealed
          only in accord with the reasons and procedures set out in the
          rule. Court records not subject to rule 76a are governed by
          existing law. There is a common-law right to inspect and copy
          records of the judiciary, subject to the court’s inherent power to
          control access to its records. The charge for an uncertified copy
          of a judicial record in the clerk’s custody is governed by section



                                        p.   877
Honorable John Vance - Page 7          ci+166)




         51319(S) of the Government Code, which authorizes the district
         clerk to collect a “reasonable fee” for “performing any other
         service prescribed or authorized by law for which no fee is set by
         law.” Since the legislature refused to permit the district clerk to
         collect a fee of one dollar (Sl.00) per page for noncertified
         records, we believe that amount would be an unreasonable
         charge as a matter of law.




                                                 DAN      MORALES
                                                 Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENBAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L Garrison
Assistant Attorney General




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