Untitled Texas Attorney General Opinion ( 1976 )

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The Honorable Joe Resweber Opinion No. H-826
County Attorney
Harris County Courthouse Re: Whether court records
Houston, Texas 77002 pertaining to certain types
of cases affecting the
parent-child relationship
are confidential.
Dear Mr. Restieber:
You have requested our opinion regarding the confidenti-
ality of court records pertaining to certain types of cases
affecting the parent-child relationship. Specifically, you
inquire about the district clerk's responsibility for main-
taining the confidentiality of such records in paternity and
voluntary legitimation proceedings and in suits in which
termination of the parent-child relationship is sought.
Section 11.17(b) of the Family Code, as amended in 1975
by the 64th Legislature, requires the district clerk, upon
entry of a decree of adoption, to forward the complete file
to the Department of Public Welfare , which is then directed
to "close the records concerning that child." Section 11.17 (a)
declarea the confidentiality of 'the records concerning a
child maintained by the district clerk after entry of a decree
of adoption.". By contrast, the statute imposes no absolute
requirement of confidentiality on the records maintained by
a district clerk in termination proceedings. Section 11.17(f),
however, provides:
The court, on the motion of'a party or
on the court's own motion, may order
the sealing of the file, the minutes of
,
the court, or both, in a proceeding in
which adoption or termination was
p. 3487
The Honorable Joe Resweber - page 2 (H-626)
sought. This subsection does not relieve'
the clerk from the duty to transmit files
or petitions and decrees of adoption to
the department as required by Subsection
(b) of this section.
Thus, aa to termination proceedings, the court = require
the confidentiality of records in the possession of the clerk,
including the minutes of the court on which the relevant
decrees and orders are entered. Accordingly, it is our opinion
that the records maintained by a district clerk pertaining to
a suit seeking the termination of the parent-child relation-
ship are not required to be maintained as confidential
unless the court, on the motion of a party or on its own
motion, orders the file in such case to be sealed.
Suits for the determination of paternity and for voluntary
legitimation (Sec. 13.01, et seq.1 are suits affecting the
parent-child relationship.-Attorney General Opinion H-353
(1974). The Fami~lyCode, however, does not require the district
clerk to maintain the confidentiality of records in such pro-
ceedings. Although "all the records required to be maintained"
-'~by the Department of Public Welfare are declared to be confi-
dential, including, presumably, records pertaining to paternity
and voluntary legitimation actions, no such broad duty of
maintaining confidentiality is imposed upon the district clerk.
Sec. ii.17 (a). We therefore conclude that the court records
maintained by a district clerk pertaining to paternity and
voluntary legitimation proceedings are not required to be
maintained as confidential by statute.
We note that the Open Records Act by its express terms
does not apply to the judiciary, and the provisions of that
Act are not applicable to the records in question. V.T.C.S.
art. 6252-lla, S 2(1)(G). In Open Records Decision No. 25
(1974), we said:
Since the Open Records Act by its
express terms does not apply to the
judiciary, that branch of government
. is in the same position in regard to
information held by it as it always has
been. The Open Records Act neither
authorizes information held by the
judiciary to be withheld nor requires
it to be disclosed.
p. 3488
The Honorable Joe Resweber - page 3 (H-826)
In the absence of statute, inspection of judicial records
is controlled bv the common law. The common law riaht of
inspection of piblic records is not an absolute, b& ~a
qualified right. Palacios v. Corbett, 172 S.W. 777, 781
(Tex. Civ. APP. -- San AntGio 1915, writ ref'd). While
records of judicial proceedings are generally open to public
inspection, a court in its discretion may impound its files
in a case and deny public inspection when justice so requires.
76 C.J.S.. Records S 36, D. 140: Annot. 175 A.L.R. 1260 (19481.
See C.v.C; 320 A2d 717,.753-24 iDe1. 1974); Sanford v.
Et-Herald-Traveler
20 Am.Jur.2& Courts Ss
jurisdiction and control over their own records. Coleman
Kz;s 151 S.W. 1040, 1041 (Tex. Sup. 1912); a 5
, 12 S.W. 679, 681 (Tex. Sup. 1889); Iiannonv. Henson,
7 S.W.2d 613, 619 (Tex. Civ. App. -- TexarkamEr aff'd
15 S.W.2d 579 (Tex. Comm'n App. 1929, jdgmt adopted).
Thus, while there is no statutory requirement that
records in casea of paternity or legitimation be maintained
as confidential, and while there is no express statutory
authorization for a court to order such a record sealed or
held:in.confidence either on its own motion or that of a
party, we believe that the court has inherent power to
control public access to its own records. The clerk of
the district court should look to the court for guidance
in the matter.
SUMMARY
The records maintained by a district clerk
pertaining to a suit seeking the termina-
tion of the parent-child relationship are
not confidential unless the court orders
the file in such case to be sealed. Court
records maintained by a district clerk
regarding paternity and voluntary legiti-
.
p. 3489
.~ The Honorable Joe Resweber - page 4 (H-826)
mation proceedings are not required by
etatute to be maintained as confidential,
but the court has discretion to control
public access to its retards when justice
a0 requiree.
ry truly yours,
Attorney General of Texaa
Opinion Committee
jwb
p. 3490