
    The PERMIAN REPORT, Appellant, v. Pat LACY, County Clerk of Gaines County, Texas, et al., Appellees.
    No. 08-91-00074-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 9, 1991.
    Rehearing Overruled Nov. 20, 1991.
    Michael T. Morgan, Morgan, Ward & Leeton, P.C., Midland, for appellant.
    James P. Allison, Allison & Associates, Austin, for appellees.
    OSBORN, C.J., and WOODARD and KOEHLER, JJ.
   OPINION

OSBORN, Chief Justice.

The Appellant filed a suit for declaratory judgment, mandamus and injunction seeking to obtain a judgment which would declare its right to microfilm county records. It also sought to recover its attorney’s fees. After a finding that the County Clerk had established prudent and reasonable rules for the copying of county records, all relief requested by the Appellant was denied. Since judgment was entered, there has been a change in the Office of the County Clerk and we have substituted the present Clerk as an Appellee. We affirm in part, reverse and render in part and sever and remand the issue of attorney’s fees.

This appears to be a case of first impression as to what are reasonable rules for a county clerk to impose upon a party who desires to copy deed and lien records and other instruments that might affect land titles within a particular county. In early 1987, a request was made for permission to microfilm certain records in Gaines County. The County Clerk refused to permit microfilming of records in her office. In April 1987, a written request was sent to the Clerk. A couple days later, personnel arrived at the Clerk’s office to begin microfilming. Again, the request was refused. The Clerk agreed to sell copies of the records at a cost of $1.00 per page or to permit handwritten copies to be made. There being more than one million pages involved, neither alternative was accepted. Another letter was sent in September 1989, which advised suit would be filed if permission for microfilming was not granted. This suit followed.

Following a trial in May 1990, the trial court continued the case for sixty days to allow the Clerk to adopt reasonable rules and regulations for access to public records and to protect such records. The judge’s letter to the attorneys for the parties set forth certain guidelines for the Clerk to consider in any rules that might be adopted.

On June 15, 1990, the Clerk adopted “Rules of Procedure for Copying of Records.” (See attached copy). These rules require the filing of an application which contains the name and address of the applicant, the records to be copied and the equipment to be used and information as to the space required. The Clerk can impose reasonable and necessary requirements to insure the safety of the records and maintain the efficiency of the office. An applicant may be required to reimburse the Clerk for the cost of a supervisor who will control the reproduction procedure. The Clerk will set the time and dates for the copying process. The applicant can be required to submit an indemnity bond or cash deposit for any loss resulting from the copying procedure. A certificate of insurance can be required to provide protection for personal injury or property damage arising from the work performed by the applicant. The applicant is restricted to the area designated by the Clerk. Where records are on microfilm, a copy shall be available to an applicant at a reasonable cost. Where an applicant does microfilming of records, the Clerk may obtain a copy for the cost of such copy.

At a subsequent hearing, the court determined that the Clerk had established prudent and reasonable rules for the copying of county records. The court then entered judgment which denied all relief to the Appellant. Following a timely request, the court filed findings of fact and conclusions of law. The court found the rules did not deny access to the public records of Gaines County and that they properly provided for the safety and protection of the records and for the efficiency of the copying process and protected against any potential disruption of the business and operations of the Office of County Clerk. The court concluded that Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Vernon Supp.1991) does not grant members of the public an unlimited right to copy, with their own copying equipment, information deemed public under the Texas Open Records Act. It also concluded the request to copy public records may be regulated so as to protect such records and to prevent the disruption of the Office of the Clerk.

The Appellant argues together its first four points of error which assert the trial court erred in approving rules which require (1) payment for supervision provided by the Clerk’s office; (2) insurance to have access to the Clerk’s records; (3) an indemnity bond in order to copy public records; and (4) providing the Clerk with a copy of microfilm made of court records at cost.

As early as 1937, the courts of this state recognized a right to make photographic copies of deed records in the office of the county clerk. Tobin v. Knaggs, 107 S.W.2d 677 (Tex.Civ.App. — San Antonio 1937, writ ref’d). In reaching its decision, the Court said of the office of the county clerk:

It is a purely public office, open alike at all times, and upon the same terms, to all members of the public, subject to such reasonable rules and regulations as may be imposed, in good faith, by the clerk.

Id. at 680. In that opinion, the Court noted the copying process did not increase the fire hazard or other dangers, that it was not a nuisance and does not inconvenience the clerk or disturb the clerk’s office.

Ten years later, the Court in Tarrant County v. Rattikin Title Co., 199 S.W.2d 269 (Tex.Civ.App. — Fort Worth 1947, no writ) followed the Tobin decision and held that there was no authority for a county clerk to charge an abstract company for office space provided in the courthouse while copying public records. The Court said:

This court takes judicial notice that all reputable abstractors should have free and unhampered access to the use of the public records located in the County Clerk’s office, subject, of course, to reasonable rules and regulations set out by the County Clerk to protect the records and to minimize the interference in the Clerk’s office....

Id. at 273.

First, we note that Tex. Local Gov’t Code § 191.006 (Vernon Supp.1991) provides:

All records belonging to the office of the county clerk to which access is not otherwise restricted by law or by court order shall be open to the public at all reasonable times. A member of the public may make a copy of any of the records.

Next, we note that Local Government Code Chapter 118 sets certain fees to be charged by a county clerk. In that chapter, Tex. Local Gov’t Code §§ 118.011 and .013 (Vernon 1988) sets fees for real property records filing. Section 118.011(b) permits the clerk to “charge reasonable fees for performing other duties prescribed or authorized by statute for which a fee is not prescribed by this subchapter.” Finally, § 118.024 provides:

(a) This subchapter does not limit or deny any person full and free access to any document referred to in this sub-chapter. A person is entitled to read, examine, and copy from those documents or from any microfilm or other photographic image of the documents.
(b) A person may exercise the right provided by this section without paying any charge under the reasonable rules of the county clerk at all reasonable times during the hours in which the clerk’s office is open to the public.

The last quoted section provides a right to full and free access to the records in issue in this case. Included is the right to copy from those documents. There is included the provision that such rights are provided without paying any charge.

The Texas Open Records Act applies to governmental bodies, commissions, institutions and agencies. The definitions used in Article 6252-17a, § 2 does not appear to include an individual like a county clerk, as opposed to governmental bodies and boards. Perhaps the Clerk’s office is an “agency” which is supported by public funds. There are a wide range of entities which have been held to be within the Act. J.H. Spurgin II, The Texas Open Records Act, 50 Texas Bar Journal 596 (1987). Certainly deed and lien records would be “public records” within the definition of that term in the Texas Open Records Act. Article 6252-17a, § 2(2). That Act provides in § 5(b) that the only inquiry to be made of a person who applies for inspection or copying of public records shall be to establish proper identification and the public records being requested. Section 10(b) makes it an offense for an officer for public records, who with criminal negligence, refuses to give access to, or refuses to permit or provide copying of public records to any person upon request.

In this case, it appears that the rules of procedure adopted by the Clerk went beyond that permitted by the statutes which provided for full and free access and the right to copy. We sustain Points of Error Nos. One through Four. We affirm that part of the trial court’s order which found the County Clerk of Gaines County has established prudent and reasonable rules for the copying of county records, except as to paragraphs three, five and seven. As to those particular paragraphs which provided for reimbursement for supervision of copying, financial responsibility and copies of microfilm, we reverse and render the judgment of the trial court and hold those provisions of the rules are unreasonable and unenforceable.

We overrule Point of Error No. Five. Appellant sought a declaratory judgment of its right to microfilm, and the judgment approves rules which recognize that right.

We sustain Point of Error No. Six. The Appellant, having successfully obtained reasonable rules for copying documents in the Office of the County Clerk, must be considered the successful party in this litigation. Tex.R.Civ.P. 131. All costs are taxed against the Appellees.

We sustain Point of Error No. Seven. We sever the claim for attorney’s fees and reverse and remand that issue to the trial court.

The judgment of the trial court, except as to attorney’s fees, is affirmed in part and reversed and rendered in part and costs are taxed against the Appellees. The claim for attorney’s fees is severed and it is reversed and remanded to the trial court.

APPENDIX  