Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 19,2004
The Honorable Travis J. Koehn Opinion No. GA-01 52
Austin County Criminal District Attorney
One East Main Re: Whether a county clerk may charge a fee for
Bellville, Texas 774 1% 1598 posting an Open Meetings Act notice
(RQ-0099-GA)
Dear Mr. Koehn:
You ask about “the authority of a county clerk to charge a reasonable fee to a governmental
body for receiving, posting and retaining notices required by the Open Meetings Act.“’
The Open Meetings Act (the “Act”) requires that a “governmental body shall give written
notice of the date, hour, place, and subject of each meeting held by the governmental body.” TEX.
GOV’T CODE ANN. 8 551.041 (Vernon 1994); see also id. 8 551.001(3) (Vernon Supp. 2004)
(defining “governmental body” to include a county commissioners court, a municipal governing
body, a deliberative body classified as a department, agency, or political subdivision of a county or
municipality, a school district board of trustees, a county board of education, the governing board
of a special district created by law, and water districts). The Act expressly states where notice shall
be posted, although posting requirements vary according to the particular governing body posting
notice. See id. $5 551.048-.055 (Vernon 1994 & Supp. 2004). Certain governmental bodies must
provide notice of each meeting to the county clerk who must post the notices in the county
courthouse. Section 55 1.053(a)(3) provides that “[tlhe governing body of a water district or other
district or political subdivision that extends into four or more counties shall: . . . provide notice of
each meeting to the county clerk of the county in which the administrative office of the district or
political subdivision is located.” Id. 9 55 1.053(a)(3) (Vernon Supp. 2004). “The county clerk shall
post the notice provided . . . on a bulletin board in a place convenient to the public in the county
courthouse.” Id. 6 55 1.053(c). These provisions also apply to governing bodies of water districts
or other districts or political subdivisions that extend into fewer than four counties. See id.
0 55 1.054(a)-(b) (Vernon 1994).
Section 118.011 of the Local Government Code enumerates fees, other than court fees, that
a county clerk may charge “for services rendered to any person.” TEX. LOC. GOV’T CODE ANN.
‘Letter from Honorable Travis J. Koehn, Austin County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Aug. 27,2003) (on file with Opinion Committee).
The Honorable Travis J. Koehn - Page 2 (GA-0152)
Q 118.011 (Vernon Supp. 2004); see also TEX. GOV’T CODE ANN. 5 311.005(2) (Vernon 1998)
(defining “person” to include a government or governmental subdivision or agency). Subsections
(a) and (b) prescribe set fees for certain services rendered.* Subsection (c) directs that the county
clerk “shall charge reasonable fees for performing other duties prescribed or authorized by statute
for which a fee is not prescribed by this subchapter.” TEX. Lot. GOV’T CODE ANN. 8 118.01 l(c)
(Vernon Supp. 2004).
In 1969, the legislature amended the Open Meetings Act to require school districts and other
local political subdivisions to furnish meeting notices to the county clerk to post in the county
courthouse. See Act of May 1, 1969,61st Leg., R.S., ch. 227, 0 1, 1969 Tex. Gen. Laws 674. A
1969 opinion of this office concluded that the predecessor to section 118.011 (c) of the Local
Government Code3 “authorize[d] county clerks to charge school districts a reasonable fee for posting
the notices required by” the Act.4 Tex. Att’y Gen. Op. No. M-496 (1969) at 3. The opinion
declared, “It is our opinion that [section 118.01 l(c)? predecessor] must be considered in para
materia with [the Open Meetings Act] and therefore authorizes county clerks to charge school
districts a reasonable fee for posting the notices required” by the Act. Id. By extension, that
construction applies to the other local political subdivisions that were required to furnish meeting
notices to the county clerk for posting.
Attorney General Opinion M-496 was issued less than two years after the initial adoption of
the Open Meetings Act. See Act of May 1,1969,6 1st Leg., R.S., ch. 227,§ 1,1969 Tex. Gen. Laws
674. The opinion has been in effect for 36 years, and its conclusion has not been altered or modified
by the legislature. Courts will give great weight to a contemporaneous construction given by the
legislature or executive branches of government. See Walker v. Baker, 196 S.W.2d 324,327 (Tex.
1946). Thus, the principle of Attorney General Opinion M-496, that county clerks may charge a fee
for posting open meeting notices, remains effective.
Although school districts are no longer subject to this requirement,5 the Act still requires that
certain special districts and political subdivisions provide open meeting notices to the county clerk,
2See TEX. LOC. GOV’T CODE ANN. 5 118.01 l(a) (Vernon Supp. 2004) ( county clerk authorized to charge set
fees for services rendered to any person for personal and real property records filing, certified and noncertified papers,
birth or death certificate, bond approval, marriage licenses, declaration of informal marriage, brand registration, and oath
administration); id. $ 118.011 (b) ( county clerk may charge set fees for a returned check, and for records management
and preservation).
‘The opinion construes former article 3930, Revised Civil Statutes. See Act of Apr. 30, 1987,7Oth Leg., R.S.,
ch. 149, $0 1,49(l), 1987 Tex. Gen. Laws, 707,862, 1307-08 (nonsubstantive revision repealing article 3930, Revised
Civil Statues, and enacting Local Government Code section 118.011).
4The opinion construes former article 6252-17, Revised Civil Statutes. See Act of May4,1993,73d Leg., R.S.,
ch. 268, $0 1,46(l), 1993 Tex. Gen. Laws 583,589,986-87 (nonsubstantive revision repealing article 6252-17, Revised
Civil Statutes, and adding title 5 of the Government Code).
‘Section 55 1.05 1 of the Government Code now directs that school districts “post notice of each meeting on a
bulletin board at a place convenient to the public in the central administrative offrce of the district.” TEX. GOV’T CODE
ANN. $55 1.05 1 (Vernon 1994).
The Honorable Travis J. Koehn - Page 3 (GA-01 52)
who must post them on a bulletin board in the county courthouse. See TEX. GOV’T CODE ANN.
$0 55 1.053(a)(3) (V emon Supp. 2004), 55 1.054 (Vernon 1994) (governing bodies ofwater districts
or other districts or political subdivisions must post notice of each meeting with county clerk); see
id. $0 55 1.053(c) (Vernon Supp. 2004), 55 1.054(b) (Vernon 1994) (county clerk must post open
meeting notices on a bulletin board at place convenient to public in county courthouse). Moreover,
the county clerk is authorized by section 118.011 (c) of the Local Government Code to “charge
reasonable fees for performing other duties prescribed or authorized by statute for which a fee is not
prescribed by” chapter 118. TEX. LOC. GOV’T CODE ANN. 0 118.01 l(c) (Vernon Supp. 2004).
Because posting an open meeting notice is a county clerk’s statutory duty and no fee for posting open
meeting notices is specifically prescribed by chapter 118, it follows that a county clerk may charge
a reasonable fee for posting these notices.
You also ask whether a county clerk is authorized to charge a fee to a governmental body for
retaining open meeting notices. The state librarian’s record retention schedule requires a county
clerk to retain meeting notices that he or she has posted for a governmental body! It is not a duty
performed on behalf of the governmental body posting the notice. As a result, section 118.011 (c)
does not authorize a county clerk to charge a governmental body a separate fee for retaining such
records.
Section 118.011 (b)(2) authorizes a county clerk to set and collect a records management and
preservation fee. See id. 118.01 l(b)(2). Section 118.0216 provides that “[tlhe fee for ‘Records
Management and Preservation’ under Section 118.011 is for the records management and
preservation services performed by the county clerk after thefiling and recording of a document in
the records of the ofice of the clerk.” Id. 8 118.0216 (emphasis added). Documents that are “filed
and recorded” in the county clerk’s office include personal and real property records, birth or death
certificates, and marriage licenses, among others. See id. $0 118.011, .0216, .052; see also supra,
note 2. The Open Meetings Act requires a county clerk topost open meeting notices of certain local
political subdivisions on a bulletin board in the county courthouse. It does not require that these
open meeting notices befiled and recorded by the county clerk. Thus, a county clerk may not charge
a governmental body a fee under section 118.011 (b)(2) with respect to these open meeting notices.
See Tex. Att’y Gen. LO-98-020, at 2 (“Records Management and Preservation” fee is assessed by
county clerk for filing any document); LO-92-8 1, at 2 (person filing a document with county clerk’s
office required to pay records management and preservation fee at time of filing); LO-92-7, at 3
(records management and preservation fee may be collected upon the “filing and recording” of any
document).
6See TEX. GOV’T CODE ANN. ch. 441, subch. J (Vernon 1998) (Preservation and Management of Local
Government Records); see also TEXAS STATELIBRARY & ARCHIVESCOMMISSION,LOCAL SCHEDULECC 43 (1997),
avaiZabZe at http://www.tsl.state.tx.us/sh-mkecordspubskc.htrnl##l.4 (last visited Jan. 2 1, 2004).
The Honorable Travis J. Koehn - Page 4 (GA-0152)
SUMMARY
A county clerk is authorized to charge a reasonable fee to a
water district or other district or political subdivision to post open
meeting notices. See TEX. Lot. GOV’T CODE ANN. 8 118.011(c)
(Vernon Supp. 2004). A county clerk may not charge governmental
bodies a fee for retaining open meeting notices.
Yours very truly,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee