TEE ATTORNEY GENERAL
OF TEXAS
February 2, 1989
Honorable William D. Gooch Opinion No: ~~-1013
Director and Librarian
Texas State Library Re: Whether records created
Lorenzo De Zavala State and/or received by the Gover-
Archives and Library Bldg. nor's Office are public re-
P.O. Box 12927 cords within the meaning of
Austin, Texas 78711 the Open Records Act, article
6252-17a, V.T.C.S., and of
section 441.031(l)(2)(5) of
the Texas Government Code.
(RQ-1579)
Dear Mr. Gooch:
You ask several questions about the authority of the
Texas State Library and Archives Commission over records
generated or received by the governor's office in conducting
its business. You inform us that Ima number of Texas
governors, following an informal and unwritten tradition,
have removed from state custody all or a very large part of
the records created during their administration." You ask:
1. Are the records which are created and
received by the Office of the Governor of
Texas in the course of carrying out the
statutorily assigned duties of that office
considered public records, as defined in
V.T.C.A., Government Code, Chapter 441,
Section 441.031(l)(2)(5) and V.A.C.S., Art.
6252-17a, Sections 2(3) and 3?
2. If the records of the Governor's Office
are public governmental records, is their
removal from the custody of the state at the
end of a gubernatorial administration
considered in violation of Texas Penal Code,
Chapter 37, Section 10, or V.A.C.S., Art.
6252-17a, Sec. [12]?
3. If the records of the Governor's Office
are public governmental records, what legal
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or. William D. Gooch - Page 2 (JM-1013)
action(s) can the Texas State Library, as the
agency responsible for the management and
preservation of public records, initi;E;ori;
obtain custody of any such public
that have been removed from the custody of
the state?
Chapter 441 of the Texas Government Code governs, among
other things, the Texas State Library and Archives
Commission (the commission) and the preservation of the
state's public records. Sections 441.001 through 441.016
set out the structure and general powers and duties of the
commission. Sections 441.031 through 441.039 govern the
retention of public records. your first question is whether
records created or received by the governor's office in
carrying out its statutory duties are subject to chapter
441, specifically to section 441.031(5).
Section 441.031(5) of the Texas Government Code
provides:
*Public record* means a document, book,
paper, photograph, sound recording, or other
material, regardless of physical form or
characteristic, made or received accordina to
law or owce or
. .rn connection with the
transaction of officral businea . The term
does not include library or museum material
made or acquired and preserved solely for
reference or exhibition purposes, an extra
copy of a document preserved only for
convenience of reference, or a stock of
publications or of processed documents.
(Emphasis added.)
Records received or created by the governor*8 office in
carrying out its statutory duties clearly fall within this
definition.
You also ask whether the records of the governor's
office constitute public records subject to the Texas Open
Records Act, article 6252-17a, V.T.C.S. Section 2(2) of the
Open Records Act provides:
*Public records' means the portion of all
documents, writings, letters, memoranda, or
other written, printed, tw=d , copied, or
developed materials which contains nublic
information. (Emphasis added.)
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Mr. william D. Gooch - Page 3 (JM-1013)
Section 3(a) provides:
All information collected, assembled, or
maintained by governmental bodies pursuant to
law or ordinance or in connection with the
transaction of official business is public
information and available to the public
during normal business hours of any
governmental body, with the following
exceptions only [followed by 22 specific
exceptions].
Records received or created by the governor's office in
carrying out its statutory duties are subject to the Open
Records Act and may be withheld from the public only if one
of the act's specific exceptions protects them. Si2s Open
Records Decision No. 116 (1975); see also Open Records
Decision Nos. 241 (1980); 212 (1978); 177 (1977). Section
5(a) of the act requires the custodian to preserve records
Subject to the act. See also V.T.C.S. art. 6252-17a, 8 12
(criminal penalty for removal of public records).
Your second question is whether the removal of public
records from the custody of the state at the end of a
gubernational administration violates chapter 37 of the
Texas Penal Code. Section 37.10 of the Penal Code provides:
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or
false alteration of, a governmental
record:
(2) makes, presents, or uses any record,
document, or thing with knowledge of its
falsity and with intent that it be taken
as a genuine governmental record; or
(3) . .
removes. or otherwise lmoalrs the veritv,
leaibilitv. or avabbilitv of a
(b) It is an exception to the application
of Subsection (a)(3) of this section that the
governmental record is destroyed pursuant to
legal authorization.
(cl An offense under this section is a
Class A misdemeanor unless the actorIs intent
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Mr. William D. Gooch - Page 4 (JM-1013)
is to defraud or harm another, in which event
the offense is a felony of the third degree.
(Emphasis added.)
Section 37.01(1)(A) of the Penal Code defines
"governmental record" to mean anything "belonging to,
received by or kept by government for information." Records
received or created by the governor#s office in carrying out
its statutory duties are government records within the
meaning of section 37.01(1)(A).
Whether the removal of specific gubernatorial records
from the custody of the state at the end of a gubernatorial
administration constitutes a violation of section
37.10(a)(3) depends on the facts surrounding the removal in
question and on whether any other law in effect at the time
of removal authorized the removal. Violation of section
37.10(a)(3) requires proof of an intentional removal that
would impair the availability of the record. Violation of
section 37.10(a)(3) also requires proof of a culpable state
of mind -- an intent- act. The legislature did not
intend our opinion process to resolve disputed questions of
fact.
Similar considerations apply to a violation of section
12 of the Texas Open Records Act. A violation of section 12
requires proof of the willful, unauthorized removal of
public records. $&9 Attorney General Opinion H-808 (1976).
Violation of the act's criminal sanctions depends on the
facts in a given case. $&3 Attorney General Opinion JW-265
(1984). As indicated, the opinion process was not intended
to resolve disputed questions of fact.
your final question relates to the commission's
remedies to obtain custody of public records that have been
removed from the commission's custody or from the custody of
the state. Section 441.002(g)(E) of the Government Code
provides that the commission shall
demand and receive from the officer of the
state department in charge of it, any book,
map, paper, manuscript, document, memoranda,
or data relating to the history of Texas not
connected with or necessary to the current
duties of the officer.
This provision grants the commission authority to demand
physical custody of Texas public records that are "not
connected with or necessary to the current duties of the
officer."
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Mr. William D. Gooch - Page 5 (JM-1013)
Section 441.010(d) of the Government Code provides:
A state, county, or other official lazy turn
over to the state library for permanent
preservation in the library an official book,
record, document, original paper, map, chart,
newspaper file, or printed book
ial's offi $-vt
director and librarian shall give* the
official a receipt for an item turned over
under this subsection. (Emphasis added.)
This provision gives state officials discretion to determine
when their records are in "current use." If their records
are in current use, state officials have no obligation to
submit public records to the commission. In light of
section 441.002(g)(E) and the overall purpose of chapter
441, however, we do not believe that section 441.010(d)
grants state officials the authority to refuse to give to
the commission public records that are not in current use.
If records are not in current use, the commission must
classify the records either as permanent or subject to
destruction. Records to be designated permanent public
records must be provided to the commission pursuant to
section 441.002(g)(S). Permanent records, records that are
not subject to destruction, cannot, as a general rule, be
transferred out of the custody of the state of Texas. See
Attorney General Opinion R-523 (1975). Public records
cannot be destroyed or classified as subject to destruction
without the approval of the director of the records
management division and the librarian. Gov . Code
5 441.035(d). Unless records subject to destruction are
confidential, they may be transferred out of the custody of
the state once they have been classified by the director and
the librarian as subject to destruction. $&$ Attorney
General Opinion R-523 (1975).
The Government Code presumes that government officials
will cooperate with regard to the disposition and
classification of public records. Section 441.032(b)
provides that the records management division of the
commission shall "manage all public records of the state
with the cooperation of the heads of the various departments
or institutions in charge of records." Section 441.034
provides that the records management division shall, "with
the cooperation of the heads of departments and
institutions," survey, index, and classify public records.
p. 5230
Mr. William D. Gooch - Page 6 (JM-1013)
As indicated, section 441.002(g)(S) authorizes th;
commission to demand custody of public records that are
in current use. Section 441.002(i) provides:
If there is a disagreement as to the proper
custody of a book, map, paper, manuscript,
document, memorandum, data under
Subsection (g)(S), the attogey general shall
decide proper custody.
Proper custody of specific records depends on the facts of a
given case and on whether any other statutes address the
disposition of the specific records at issue.
SUMMARY
Records created or received by the
governor8s office in carrying out its
statutory duties fall within the definition
of wpublfc records" in section 441.031(5) of
the Texas Government Code and the definition
of "public records' in section 2(2) of the
Texas Open Records Act, article 6252-17a,
V.T.C.S.
Such records also constitute "govern-
mental records" within the meaning of sec-
tions 37.01(1)(A) and 3;;:Ea)(3) of the
Texas Penal Code. 37.10(a)(3)
prohibits, among other things, the inten-
tional, unauthorized removal of governmental
records. Whether the removal of specific
gubernatorial records from the custody of the
state at the end of a gubernatorial admin-
istration violates section 37.10 depends on
proof of the elements of the criminal offense
described in section 37.10.
Similarly, violation of section 12 of
the Open Records Act, which prohibits the
unauthorized removal of public records,
depends on the facts in a given case.
Section 441.002(g)(S) of the Government
Code authorizes the Texas State Library and
Archives Commission to demand physical
custody of public records that a state
official has determined are not in current
use. Section 441.002(i) provides that the
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! Mr. William D. Gooch - Page 7 (JM-1013)
attorney general shall resolve disputes
regarding the proper custody of records
subject to section 441.002(g)(S).
Jzyok
JIM MATTOX
Attorney General of Texas
MARYKEXLER
First Assistant Attorney General
ICUMCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
JENNIFER S. RIGGS
Chief, Open Government Section
of the Opinion Committee
Prepared by Jennifer S. Riggs
Assistant Attorney General
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