Texas clerks look to derail web-based public access to court records

By Ryan Autullo
Austin American-Statesman
Originally published Jan. 30, 2017

Texas court clerks are resisting a state proposal they say would strip them of their constitutional authority by making court documents available online for easy public access.
The statewide database, re:SearchTX, holds records from all 254 counties and is backed by the state’s Supreme Court. It currently is used by judges and soon will be available to attorneys and the public — who could search for civil court records and review them, all from the comfort of home.

Clerks say surrendering these records to a privately operated database would violate their role as custodians; the other side says this is an overstatement, and that taxpayers, not clerks, own the records. Clerks also say their departments will lose money with the public no longer having to head to a courthouse and pay printing fees of up to $1 a page. However, their opponents point out that the new system is set up so clerks would benefit from online users.

The clerks hope the Legislature will stop the new system through a bill introduced recently by state Rep. Travis Clardy, R-Nacogdoches, who contends that clerks and commissioners courts should decide whether their counties participate in the service. Clardy said the plan is fraught with problems, including maintaining privacy for documents that contain sensitive material such as Social Security numbers and record expungements.

“Clerks want assurance if those records are used by a private enterprise they are handled appropriately,” Clardy said.

Blake Hawthorne, clerk of court of the Texas Supreme Court, said Clardy’s bill “would kill the system.”

That would be fine with clerks, or at least the nearly half who objected to the database among 129 who responded to a survey administered by the state Office of Court Administration in 2015. In that same survey, 98 percent of attorneys said they would use the database, which, if approved, would bring uniformity to how court records are kept across all 254 counties.

“I don’t see how it violates their rights as custodians,” said Joseph Larsen, a Houston-based First Amendment attorney who is on the board of the Freedom of Information Foundation of Texas. “They are made the custodians, but I don’t know that they have a right so much as they have a duty. The records are public. They’re not the clerks’ records; they’re the public’s records.”

Only civil court documents are accessible through re:SearchTX, and even those are limited to exclude family cases such as divorce and child custody. At some point, criminal court documents could be added, according to David Slayton, the administrative director of the Office of Court Administration.

Slayton said the database offers convenience because people now can get their hands on documents from their personal computer rather than going to the courthouse during business hours and printing copies.

“They are the most public records that government has,” Slayton said. “They are open for public inspection.”

The service will not cost the state additional money; it will be covered by an $18 million e-filing fee the state pays a third-party vendor.

Travis County has independent plans in the next year to launch an online database similar to re:Search TX. And it will have a wider variety of court records than re:SearchTX because it will also house documents filed pro se, meaning by people who represent themselves without an attorney. Viewing documents in Travis County’s system will be free; re:SearchTX charges 10 cents a page up to $6, with the money going to the county where the document originated.

Travis County will lose an estimated $300,000 a year from not collecting printing costs, according to District Clerk Velva Price. There will still be a charge for official copies.

Price said she’s concerned that lawmakers are moving too fast to launch re:SearchTX.

“They have not worked out technicalities,” she said.

A total of 95 Texas counties, including Bastrop, have passed resolutions opposing the new system.

Clerks voiced concerns at a Jan. 20 meeting in Austin and were given 45 days to suggest tweaks. There will be a final vote March 3, but Parker County District Clerk Sharena Gilliland, who chairs the re:SearchTX committee, said, “I’m afraid the decision has been made.

“I would love for us to be able to visit with the Supreme Court and the Office of Court Administration and stop where we’re at with this research database and go back to the drawing board,” Gilliland said. “If they have real concerns about making things easier in the internet age, of course, we would be willing to talk. But there’s easier ways to go about that goal other than violating the Constitution.”