Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
October 17, 1979
MARK WHITE
Attorney General
Honorable Joe Resweber Opinion No. KW-7 1
Harris County Attorney
1001 Preston, Suite 634 Re: Duty of district clerk to file
Houston, Texas 77002 exhibits in criminal proceedings.
Dear Mr. Resweber:
You ask if the district clerk of Harris County is required to file
exhibits received in evidence during criminal proceedings in the same
manner as those received during civil proceedings.
The Texas Rules of Civil Procedure provide:
The court reporter or stenographer shall file with the
clerk of the court all exhibits which were admitted in
evidence or tendered on bill of exception during the
coume of any hearing, proceeding or trial.
Tex. R. Civ. Proc. rule 75a.
The Texas Code of Criminal Procedure now provides:
Each clerk of the district or county court shall
receive and file all papers and exhibits in respect to
criminal proceedings.. . .
Code Crim. Proc. art. 2.21, as amended by Acts 1979, 66th Leg., ch. R9, at
212.
These provisions assign district clerks the ministerial duty to file
exhibits in both civil and criminal proceedings. It is well settled that
district clerks may be assigned additional duties by proper authority. Carter
v. Missouri, K & T Ry. Co of Texas, 157 S.W. 1169
12 S.W. 610 (Tex. 1669). See Tex. Const. art. V, S 9;
Tex. Jur.2d Clerks of Courts SS 10 - 12 at 143.
In our opinion the district clerk is now required to file exhibits
received in evidence in criminal proceedings as well as those received in
civil proceedings. Where any firearm or contraband is received by the clerk
P. 218
Honorable Joe Resweber - Page TWO (NW-71)
as sn exhibit in a criminal proceeding, he has the option of placing it in the hands of the
sheriff for safekeeping. Code Crim. Proc. art. 2.21(b). Under rule 75b(b) of the Rules of
Civil Procedure, exhibits may be withdrawn won certain conditions by the court reporter
or stenographer without a court order, but we believe the Code of Criminal Procedure
contemplates that in all instances other than the placement of exhibits with the sheriff
for safekeeping, the clerk is to retain possession of the exhibits at all times and release
them only to the person or persons authorized by the court in which such exhibits have
been received. The statute pub the sheriff, when acting as safekeeper of exhibits, under
the same duty. See Code Crim. Proc. arts. 18.19 (seized weapons), 16.18 (contraband). Cf.
Tex. R. Civ. ProcTule 14b (motion for disposition of exhibits); Code Crim. Proc. art. 38Tbz
(applicability of civil rules); Attorney General Opinion C-177 (1963) (access to records of
criminal proceedings).
SUMMARY
The district clerk is required to file exhibits received in evidence
during criminal proceedings as well as those received during civil
proc&dings. - -
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bruce Y oungblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Tom Bullington
Walter Davis
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 219