THE ATTORNEY GENERAL
OF TEXAS
Mr. William D. Gooch Opinion No. JR-1250
Director and Librarian
Texas State Library Re: Whether section 202.004(a)
Lorenzo De Zavala State of the Local Government Code
Archives and Library Bldg. prohibits a local government
BOX 12927 from allowing its auditor or
Austin, Texas 78711 other independent contractor
to remove public records to
his office (RQ-2035)
Dear Mr. Gooch:
You ask for an interpretation of section 202.004 of the
Local Government Code, which provides as follows:
(a) A local aoy.8ZRmentrecord mav not be
Sold or donated fexcent for the wurnoses of
recvclinal, loaned. transferred. or otherwise
passed o t of the custodv of a local aovern-
& to uany private college or university,
private museum or library, private organiza-
tion of any type, or an individual, extent
with the consent of the director d librari-
ZD and at the exniration of it: retention
miod under the local aover,.Dment'srecords
control schedule.
(b) Subsection (a) does not apply to a
local government record that is temporarily
transferred to a person for the purposes of
microfilming, duplication, conversion to
electronic media, restoration, or similar
records management and preservation proce-
dures if the transfer is authorized by the
records management officer or custodian.
Local Gov't Code 5 202.004 (emphasis added).
This provision is part of the Local Government Records
Act, adopted by House Bill 1285 of the 71st Legislature and
codified as chapters 201 through 205 of the Local Government
P. 6660
Mr. William D. Gooch - Page 2 (JM-1250)
Code. Acts 1989, 71st beg., ch. 1248, 5 1, at 4996. House
Bill 1285 was designed to establish uniform procedures on
the maintenance, preservation, and disposition of local
government records and to clarify and expand the authority
of the Texas State Library and Archives Commission
[hereinafter "the commission"] regarding them. House comm.
on State Affairs, Bill Analysis, C.S.H.B. 1285, 71st Leg.
(1989). The "director and librarianw referred to in section
202.004 is the executive and administrative officer of the
commission. Local Gov't Code 0 201.003(4).
You are concerned about a local government contract
with a private firm to perform services, which might, as a
practical matter, require the private firm to move public
records to its offices. you state, for example, that local
governments regularly contract with private auditing firms
to audit their payment records to detect overpayment and
fraud. See. e.ac, Local Gov't Code Of 103.002 (audit of
municipal accounts by outside auditor), 115.031 - 115.045
(independent audit of county finances). It may be impossi-
ble to conduct the audit in the governmental body's offices
because the work would interfere with routine business or
because it requires data processing equipment not available
in the offices of the governmental body. You ask whether
section 202.004 prohibits local governments from temporarily
moving documents to the offices of an audit firm or other
independent contractor for the purpose of carrying on the
business of the government.
Section 202.004(a) prevents the local government from
selling or otherwise transferring records out of its custody
prior to the end of the retention period. This provision
does not necessarily prohibit the temporary removal of
records from the physical possession of the local government
to another entity pursuant to appropriate controls.
V!ustodyn has a number of different meanings. National
Fire Ins. Co. v. Davis, 179 S.W.Zd 316 (Tex. Civ. App. -
Eastland 1944, writ ref'd w.o.m.). As applied to things, it
means "to have in charge or safe-keeping, connotes control,
and includes as well, although it does not require, the
element of physical or manual pOssession.n L at 318
(quoting then 25 C.J.S. Custodv at 70, now at 88-89).
Although "custody" is not defined in the Local Govern-
ment Records Act, it is used in ways that indicate its
meaning. For example, records of permanent value not needed
in the day-to-day business of the local government may be
transferred to the custody of the commission or another
P. 6661
,
Mr. William D. Gooch - Page 3 (JM-1250)
local government with appropriate storage facilities. Local
Gov't Code 5 203.049(a). When the records are transferred,
"title and control of the records and all rights pertaining
to the records granted by law to the original custodian" are
vested in the commission or the local government that
receives the records. L 5 203.049(c). The "custodian" is
defined as "the appointed elected public officer
who . . . is in charge of an of:fce that creates or receives
local government records." & 5 201.003(2). Custody of
the records changes from an officer to his successor when
his term ends. & S 201.006.
The transfers referred to in section 202.004(a) are, in
our opinion, transfers that relinquish control of and
authority over the records. The bill analysis refers to
this provision as a prohibition against "alienation" of
records. House Comm. on State Affairs, . The
transfers referred to in this provision could xate
transfer title of, the records from the governmental body zi
another entity. It is thus appropriate that such changes of
custody occur only at the expiration of the records
retention period and only with the consent of the director
and librarian of the commission.
The prohibition on lending local government records to
a college, university, or other entity, may reflect the
legislature's determined intent to end a prior practice of
loaning public records to such institutions. Other provi-
sions of the Local Government Records Act address this
issue.
A now repealed statute, formerly codified as article
260, V.T.C.S., provided as follows:
County Commissioners and other custodians
of public records are hereby authorized, in
their discretion, to lend to the Library of
the University of Texas, for such length of
time and on such conditions as they may
determine, such parts of their archives and
records as have become mainly of historical
value.
Acts 1921, 37th Leg., ch. 43, 5 2, at 94; see also Educ.
Code S 51.903 (authorizing custodians of public records to
lend them to state supported institutions of higher
education).
P. 6662
Mr. William D. Gooch - Page 4 (JM-1250)
House Bill 1285 amended article 260 to apply to a
"custodian of government records, axcelltfor a custodian of
local amnt recor&,w and recodified it as section
441.026 of the Government Code. Gov*t Code S 441.026
(emphasis added). The same bill adopted a criminal penalty
for a "private college or university, a private museum or
library, a private organization of any other type, or an
individual" that knowingly or intentionally acquires or
possesses local government records. Local Gov't Code 5
202.009(a).l Thus, the loan of public records was viewed as
a problem to be addressed by House Bill 1285. This kind of
transfer, while not intended to be permanent, removed the
records from the control of the governmental body to the
benefit of the recipient.
Accordingly, we read section 202.004(a) as not prohib-
iting a governmental body from temporarily moving records
into a private firm's offices to use in performing services
for the government, subject to the services being performed
pursuant to a contract that provides for adequate control of
access to and protection of the documents while they are
physically located at the private firm's offices. Although
subsection 202.004(b) reads as if it is an exception to
subsection (a), it in fact deals with temporary transfers
that would not in any case be a loan or alienation of
records as prohibited by subsection (a). Subsection (b)
makes it clear that records may be physically removed from
the offices of the local government to carry out various
records management and preservation procedures authorized
elsewhere in the act. &g Local Gov't Code chs. 204 (micro-
filming), 205 (conversion to electronic media).
Section 202.004 does not prohibit the temporary trans-
fer of records you inquire about, nor does it expressly
authorize it. We believe the governing body of the local
government may authorize such transfers under the "active
and continuing program for the efficient and economical
management of all local government records" that it is
required to establish. Local Gov't Code f 203.021(l). See
also id. 0 203.026 (records management program to be estab-
lished by ordinance or order by January 1, 1991). It must
also designate a records management officer to administer
1. We do not address any questions of interpreting
this provision, which makes conduct by a private institution
subject to Class A misdemeanor punishment.
P. 6663
Mr. William D. Gooch - Page 5 (JM-1250)
the program.2 && .$S203.025, 203.026. The custodian of
records is required to cooperate with the records management
officer in carrying out records management procedures. Id.
5 201.003(2), 203.002. Under this authority, the governing
body may establish procedures and conditions for the tempo-
raryremoval of public records from the physical possession
of the custodian to the offices of a private firm pursuant
to a contract to perform services for the local government.
SUMMARY
Section 202.004 of the Local Government
Code neither prohibits nor authorizes the
temporary removal of public records from the
physical possession of the custodian to the
offices of a private firm pursuant to a
contract to perform an audit or other servic-
es for the local government. However, the
governing body may establish procedures and
conditions for such temporary removal of
records in the program it is required to
establish pursuant to section 203.021(l) of
the Local Government Code for the "efficient
and economical management" of local govern-
ment records.
J /&tax
Very truly you s
L
JIM MAT!iOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCcREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
2. An elected county officer is the records management
officer for the records of his office. Local Gov't Code 5
203.001.
P. 6664
Mr. William D. Gooch - Page 6 (JM-1250)
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan Garrison
Assistant Attorney General
P. 6665