How much can a Texas district clerk charge for uncertified copies of court records?

Plain-English summary

If you walk into a district clerk's office in Texas and ask for plain (uncertified) copies of papers from a lawsuit file, how much can the clerk charge per page? The Dallas County Criminal District Attorney asked whether the copy-charge provision in the Open Records Act, section 9(d) of article 6252-17a, controls that price for the district clerk's records.

The Attorney General concluded it does not. The threshold point is that the Open Records Act does not apply to records of the judiciary. A district clerk's job is almost entirely judicial: the clerk keeps the records of lawsuits and other court records, and those are not Open Records Act records. So while section 9(d) does set the copy charges for the kinds of public records that the Open Records Act covers in the clerk's custody, it does not reach the court records the clerk holds.

That does not mean court records are secret. Access to court records in civil cases is addressed by Rule 76a of the Texas Rules of Civil Procedure, which presumes defined "court records" are open and may be sealed only after notice, a hearing, and a specific showing. For records not covered by Rule 76a, older law still applies, and there is a common-law right to inspect and copy judicial records, subject to a court's inherent power to control access to its own records.

On the actual price, the Attorney General walked through the Government Code fee statutes. Section 51.318 sets a $1-per-page fee, but after a 1991 amendment that fee applies only to certified copies; the legislative history shows the Legislature specifically declined to charge $1 per page for noncertified copies. No statute expressly sets a fee for an uncertified copy of a judicial record, so the catch-all in section 51.319(5) controls: the clerk may collect a "reasonable fee" for a service for which no fee is set by law. And because lawmakers refused to allow the $1-per-page charge for noncertified records, the Attorney General concluded that charging $1 per page for them would be unreasonable as a matter of law.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Open Records Act (former V.T.C.S. article 6252-17a) was recodified as the Public Information Act in chapter 552 of the Government Code, the district-clerk fee statutes in chapter 51 of the Government Code have been amended and the dollar amounts changed, and Rule 76a has been revised, so confirm the current statutes, rules, and fees before relying on anything described here.

Background and statutory framework

The Open Records Act does not apply to records of the judiciary. V.T.C.S. art. 6252-17a, § 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. Gov't Code § 51.303; Mustard v. State, 711 S.W.2d 71 (Tex. App.—Dallas 1986, pet. ref'd), cert. denied, 484 U.S. 916 (1987); Attorney General Opinion H-826 (1976); Open Records Decision No. 274 (1981). The Act neither authorizes information held by the judiciary to be withheld nor requires it to be disclosed; it leaves unchanged the status of that branch with respect to information it holds. Attorney General Opinion H-826; Open Records Decision No. 25 (1974).

Rule 76a of the Texas Rules of Civil Procedure addresses public availability of court records in civil cases; the Supreme Court adopted it to set guidelines for sealing such records. Gov't Code § 22.010. Rule 76a provides that court records may not be removed from files except as permitted by statute or rule, that no order or opinion issued in the adjudication of a case may be sealed, and that other court records (as defined) are presumed open to the general public and may be sealed only on a showing of specified conditions, with public notice, a public hearing, and a right of nonparties to intervene. Tex. R. Civ. P. 76a. Access to documents in court files not defined as court records by Rule 76a remains governed by existing law. In the absence of a statute, inspection of judicial records is controlled by the common law. See Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.—San Antonio 1915, writ ref'd). The United States Supreme Court observed in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978), that the courts of this country recognize a general right to inspect and copy public records, including judicial records. Relying on Nixon, a Texas court concluded the public has a right to inspect and copy judicial records, subject to the court's inherent power to control public access. Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1989, no writ). See also Times Herald Printing Co. v. Jones, 717 S.W.2d 933 (Tex. App.—Dallas 1986), judgment vacated, cause dismissed per curiam, 730 S.W.2d 648 (Tex. 1987); Alamo Motor Lines, Inc. v. International Brotherhood of Teamsters, Local Union No. 657, 229 S.W.2d 112 (Tex. Civ. App.—San Antonio 1950, no writ).

Section 9 of the Open Records Act addresses copy charges. Section 9(a) provides that the cost of noncertified photographic reproductions of public records up to legal size shall not be excessive, with the State Purchasing and General Services Commission determining cost guidelines; section 9(b) provides that charges for access to public records in forms other than standard pages are set in consultation with that commission; and section 9(d) provides that the charges for copies made in the district clerk's office and the county clerk's office may not be greater than the actual cost of the copies as provided in subsections (a) and (b), unless a certified record (the cost for which is set by law) is requested. V.T.C.S. art. 6252-17a, § 9. The Attorney General read section 9(d) in the context of the Act, which gives a right to inspect and copy public information held by governmental bodies but grants no right to inspect information held by the judiciary, and which incorporates the section 9(a) and (b) charges for "public records." See Hendricks v. Board of Trustees of Spring Branch, 525 S.W.2d 930, 932 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.). Section 9(d) thus establishes charges for copies of records in the clerk's custody that are available under the Open Records Act; it does not establish charges for records of the judiciary in the district clerk's custody.

Government Code sections 51.318 and 51.319(5) establish fees the district clerk charges for copies of judiciary records. Section 51.318(b)(11) sets a $1-per-page fee for a certified copy of a record, judgment, order, pleading, or paper on file, including certificate and seal. That provision was amended in 1991. Acts 1991, 72d Leg., ch. 186, § 2, at 808-09. Before amendment, it applied to a copy "other than a photocopy . . . whether certified or not." Acts 1985, 69th Leg., ch. 480, § 1, at 1983. House Bill 202 was introduced to delete "other than a photocopy," which would have made all copies, including photocopies, $1 per page whether certified or not. But the House Committee on Judicial Affairs amended the bill to apply the fee only to certified copies, and the House Research Organization's analysis stated the bill as amended "would limit the current $1 fee for obtaining any copy of a record from a district clerk to certified copies." So the section 51.318 fee applies only to copies of certified records, and the Legislature did not intend the $1-per-page fee to apply to noncertified documents.

No provision expressly sets a fee for an uncertified copy of a record in the district clerk's office. The Attorney General concluded the fee should be set under Government Code section 51.319(5), which directs the district clerk to collect, "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), H-453 (1974); see also Attorney General Opinion JM-757 (1987). Accordingly, the district clerk may collect a reasonable fee for providing noncertified copies of judiciary records, and because the Legislature refused to permit a $1-per-page fee for noncertified records, that amount would be an unreasonable charge as a matter of law.

Common questions

Does the Open Records Act control what a district clerk charges for copies of court files?
No. The opinion concluded the Open Records Act does not apply to records of the judiciary, so its copy-charge provision (section 9(d)) does not set the price for court records the district clerk holds.

Are court records open to the public at all?
Generally yes. Rule 76a of the Texas Rules of Civil Procedure presumes defined court records in civil cases are open and allows sealing only after notice, a hearing, and a specific showing. For records outside Rule 76a, there is a common-law right to inspect and copy judicial records, subject to the court's power to control access.

What can a district clerk charge for an uncertified copy of a court record?
A "reasonable fee" under Government Code section 51.319(5), which covers services for which no fee is set by law. The opinion did not set a specific number.

Can the clerk charge $1 per page for an uncertified copy?
No. The opinion concluded that because the Legislature limited the $1-per-page fee to certified copies and declined to apply it to noncertified records, charging $1 per page for noncertified copies would be unreasonable as a matter of law.

Citations

• V.T.C.S. art. 6252-17a, §§ 2(1)(H), 9 (Open Records Act)
• Government Code §§ 22.010, 51.303, 51.318, 51.319(5)
• Texas Rule of Civil Procedure 76a
• Attorney General Opinions H-826 (1976), H-552 (1975), H-453 (1974), JM-757 (1987)
• Open Records Decision Nos. 274 (1981), 25 (1974)
• Mustard v. State, 711 S.W.2d 71 (Tex. App.—Dallas 1986, pet. ref'd), cert. denied, 484 U.S. 916 (1987)
• Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.—San Antonio 1915, writ ref'd)
• Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)
• Ashpole v. Millard, 778 S.W.2d 169 (Tex. App.—Houston [1st Dist.] 1989, no writ)
• Times Herald Printing Co. v. Jones, 717 S.W.2d 933 (Tex. App.—Dallas 1986), judgment vacated, 730 S.W.2d 648 (Tex. 1987)
• Alamo Motor Lines, Inc. v. International Brotherhood of Teamsters, Local Union No. 657, 229 S.W.2d 112 (Tex. Civ. App.—San Antonio 1950, no writ)
• Hendricks v. Board of Trustees of Spring Branch, 525 S.W.2d 930 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0166
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0166.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 21, 1992

Honorable John Vance
Criminal District Attorney
Dallas County
133 North Industrial Boulevard
LB 19
Dallas, Texas 75207-4313

Opinion No. DM-166

Re: Whether charges for uncertified copies of records of judiciary in district clerk's office are set by section 9(d) of 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, § 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 § 51.303; Mustard v. State, 711 S.W.2d 71 (Tex. App.—Dallas 1986, pet. ref'd), 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).

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 § 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 case may be sealed. Other court records, as defined in this rule, are presumed to be open to the general public and may be sealed 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 Code];

           (b) settlement agreements not filed of record, excluding all reference to any monetary consideration, that seek to restrict disclosure of information 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.

           (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. §§ 3, 4. Nonparties may intervene as a matter of right to participate in this hearing. Id. § 4.

Access to documents in court files not defined as court records by rule 76a remains governed by existing law. Id. § 9. Thus, sources of law other than rule 76a still apply to some records of the judiciary. In the absence of a statute, inspection of judicial records is controlled by the common law. See Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.—San Antonio 1915, writ ref'd). 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, including 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. Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App.—Houston [1st 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-law right to copy and inspect judicial records exists, subject to trial judge's discretion to seal records in particular cases. Times Herald Printing Co. v. Jones, 717 S.W.2d 933 (Tex. App.—Dallas 1986), judgment vacated, cause dismissed per curiam, 730 S.W.2d 648 (Tex. 1987). The supreme court vacated the judgment and dismissed the cause, because the motion to unseal the court records was filed after the trial court had lost plenary power over its judgment. 730 S.W.2d at 649. See also Alamo Motor Lines, Inc. v. International Brotherhood of Teamsters, Local Union No. 657, 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. 2d Courts § 61 (right to inspect court records includes right to make copies).

Section 9 of the Open 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 shall not be excessive. The State Purchasing and General Services Commission shall from time to time determine guidelines on the actual cost of standard sized reproduction and shall periodically publish those cost figures for use by governmental bodies in determining charges to be made pursuant to this Act. . . .

      (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, shall be set upon consultation between the officer for public records and the State Purchasing and General Services Commission. . . .

      . . . .

      (d) The charges for copies made in the district clerk's office and the county clerk's office may not be greater than the actual cost of the copies as provided in Subsections (a) and (b) of this section, unless a certified record, the cost for which is set by law, is requested.

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

Section 9(d) must be read in the context of the Open 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, §§ 2(1)(H), 4. Section 9(d) also incorporates the charges established in sections 9(a) and (b) of the Open Records Act, which apply to charges for copies of "public records," and for access to "public records" 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 Open Records Act. See Hendricks v. Board of Trustees of Spring Branch, 525 S.W.2d 930, 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 copies of records of the 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.

      (b) The fees are:
      . . . .
      (11) for a certified copy of a record, judgment, order, pleading, or paper on file or of record in his office, including certificate and seal, for each page or part of a page . . . $1

Gov't Code § 51.318.

Section 51.318(b)(11) was amended in 1991. Acts 1991, 72d Leg., ch. 186, § 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 certified or not, including certificate and seal, for each page or part of a page . . . $1

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

The 72d Legislature adopted House Bill No. 202, which amended a number of provisions on court fees, including section 51.318(b). Acts 1991, 72d Leg., ch. 186, § 2, at 808, 809. When House Bill 202 was introduced, it proposed to amend section 51.318(b)(11) 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 $1 [one dollar] per page whether certified or not." House Comm. on Judicial Affairs, Bill Analysis, H.B. 202, 72d Leg. (1991) at 2.

However, the House Committee on Judicial Affairs amended House Bill 202 by adopting the language ultimately enacted as section 51.318(11). As amended by the committee, this section applied the fee it charged only to certified copies, instead of all copies. House Comm. on Judicial Affairs, supra at 4 (committee amendments). The bill analysis prepared by the House Research Organization on House Bill 202 stated that the bill, as amended, "would limit the current $1 [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 accompanied this provision shows, the legislature did not intend the fee of one dollar ($1.00) 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 51.319(5) 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 also 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 collect 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 Open 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 court records, 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 51.319(5) 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 ($1.00) 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

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

[1] Unlike the county clerk, who has administrative duties as clerk for the commissioners court and is the official recorder for the county, the duties of the district clerk are almost entirely judicial. 35 D. Brooks, County and Special District Law § 22.29 at 104 (Texas Practice 1989). But see Local Gov't Code § 114.046 (county officers compensated on a fee basis must file report of fees, commissions, and compensation with the district court).