February 11. 1975
The Honorable Dorman H. Winfrey Opinion No. H- 523
Director and Librarian, Texas State
Library, Texas Archives and Library Re: Questions regarding use
Building and disposition of county
P. 0. Box 12927, Capitol Station records.
Austin, Texas 78711
Dear Mr. Winfrey:
You have requested our opinion regarding the authority of the
State Librarian and the various counties to destroy or transfer records
which are no longer in use. Specifically, your questions are:
1. What records may counties destroy or otherwise
dispose of when ‘they are no longer needed?
2. Can records be transferred or loaned to private
persons or privately supported institutions, includ-
ing private attorneys?
3. Does the State Library have the authority to destroy
records of counties and other local units of government
subsequent to their transfer to the Library under article
5442b?
The Legislature has established means by which the various political
subdivisions of the State may dispose of non-current records. Prior to,
1971, records in the custody of both county and district clerks, as well as
county records in general, were governed by article 657413, V. T. C. S.
Article 194la, V. T. C. S., enacted in 1971 and made applicable to all records
in the custody of a county clerk, county recorder, and clerk of a county
court repealed any law in conflict to the extent of the conflict. Disposition
p. 2359
The Honorable Dorman H. Winfrey page 2 (H-523)
of such records therefore, is now controlled by article 1941a.
Article 1941a authorizes a county clerk to microfilm all records
permitted or required to be filed and registered or filed and recorded
in his office. Section 6(b) requires that the clerk, after microfilming
a record, return it to the party who filed it, except for records relating
to court matters and proceedings. After the microfilm of a particular
court record has been satisfactorily used by the public for a minimum
of five years, the clerk may issue a certificate to that effect to the
commissioners court, and the court may then authorize disposal of the
original. Section 6(c), (d).
Article 1899a was also enacted in 1971 to govern disposition of
certain records in the custody of a district clerk. The statute authorizes
the district clerk to microfilm “all records, acts, proceedings held,
minutes of the court, and all registers, records and instruments” for
which the district clerk is responsible by law. After one year from the
time at which a judgment has become final and the time for seeking
appellate relief has expired, or a mandate which is finally decisive has
been issued, the district clerk, after certification to the State Librarian,
may destroy the original records pertaining to a particular legal proceeding.
Sec. 4. However, article 1899a does not provide for the destruction of
any records other than those pertaining to a hearing, proceeding or trial.
Disposition of records of the district clerk other than those
addressed in section 4 of article 1899a is still controlled by article 6574b,
since article 1899a does not contain an express repealer. Implied
repeals are not favored, and if statutes may be harmonized and effect
given to both, there is no repeal by implication. Gordon v. Lake, 356
S. W. 2d 138 (Tex. Sup. 1962); Conley v. Daughters of Republic, 156 S. W.
197 (Tex. Sup. 1913). Since article 1899a does not purport to deal with
the entire subject of the disposition of records, it may be harmonized
with article 6574b. Section 1 of article 1899a requires the microfilming
plan to provide for the “maintenance, retention, security, and retrieval
of all records so microfilmed or otherwise duplicated. ” Section 2(l)
requires all original instruments, records and minutes to be released
into the file system, and section 2(5) requires provision for “permanent
retention of the records and . . . security . . . to guard against physical
p. 2360
The Honorable Dorman H. Winfrey page 3 (H-523)
loss, alteration, and deterioration .‘I However,it is our opinion that these
sections do not prohibit the destruction of records, but instead establish
requirements for a prospective microfilming plan. To require a plan
for the permanent retention of original records is not to require all
records to be so retained. Accordingly, once the procedures required by
article 1899a are satisfied, the original records may be disposed of
pursuant to article 6574b.
Article 6574b thus provides for the disposition of all district clerk
records whose disposal is not governed by article 1899a, as well as all
other county records not addressed in a specific statute. Article 6574b
authorizes a commissioners court to make photographic duplicates of
“all public records. ” Sec. 1. After duplicates are “made, certified and
placed, ‘I the commissioners court may order destruction of the originals,
provided that the records are at least five years old and provided further
that’notice of the proposed destruction has been given to the State Librarian.
Sections 4 and 5 of article 6574b specifically preclude the “destruction or
disposition of any deed record, deed of trust record, mechanic’s lien
record or any minute book of any Court or any minute book.of any political
subdivision of Texas, ” Those records which have been microfilmed but
the destruction of which is not permitted by article 657413 may be stored in
“any place located in the County seat, under such terms and conditions
deemed sufficient for their safeguard as may be set by the clerk and the
Commissioners Court. ” Attorney General Opinion WW-1399 (1962).
A few statutes provide for the destruction of records without
requiring any duplication thereof. Article 1651, V. T. C. S., authorizes
a county auditor to destroy, after ten years from their original date and
with the consent of the commissioners court, all records other than bound
volumes and ledgers which are in the custody and control of his office.
Article 6581a, V. T. C. S., applicable to counties having a population
greater than 800,000, directs the destruction of “all applications for beer
licenses, office copies of notices issued on such applications, and copies
of such beer licenses on file. . . at any time after the expiration of one (1)
year from the expiration date of such license. ”
p. 2361
The Honorable Dorman H. Winfrey page 4 (H-523)
Your second question concerns the transfer of records to private
persons or to privately supported institutions. We have found no authority
preventing the transfer to private parties of non-current public records
which are subject to destruction. We believe, however, that the more
appropriate procedure would be first to offer the records to the State
Library pursuant to article 5439, V. T. C. S. If the records are not con-
fidential in nature (Attorney General Opinion H-115 (1973) ), it is our opinion
that they may be transferred to a private party or privately supported
institution, such as a museum, provided that transfer is effected after
the date upon which the statute first makes the records eligible for des-
truction.
Records which are not subject to destruction may not be transferred
to a private party. Collins v. Box, 40 Tex. 191 (Tex. Sup. 1874); Snider v.
Methvin, 60 Tex. 487 (Tex. Sup. 1883). There is no authority for “loan-
ing” records to private attorneys, but they may inspect court papers and
records. Rule 76, Texas Rules of Civil Procedure. Any official records
not in current use may be turned over to the State Librarian. Article
5439, V. T. C. S.
Your final question concerns the authority of the State Library to
destroy records transferred into its custody.
Article 5439a, V. T. C. S., authorizes the State Librarian with the
consent of the StateAuditor to destroy original public records transferred
to him after reproduction by any State official. Article 5441b, V. T. C. S.,
authorizes the State Librarian to:
. . . transfer, destroy or otherwise dispose
of any records of the State of Texas consigned
by law to his custody that are more than ten (10)
years old and which the State Librarian shall
determine to be valueless, or of no further use,
to the State of Texas as official records.
The concurrence of the State Comptroller, the State Auditor and the Attorney
General is necessary. We have found no authority defining “state records”
as used in article 544113. In our opinion, any public record properly in the
p. 2362
The Honorable Dorman H. Winfrey page 5 (H-523)
custody of ,the State Librarian is a “state record” for purposes of that
statute. We therefore construe article 5441b to authorize the State
Librarian to destroy county records, provided the terms of article
544133 are satisfied. The better practice would be to notify the county
beforehand, although this is not required under 544113. The State
Librarian is precluded from destroying “historical relics, mementos,
antiques, or works of art connected with and relating to the history of
Texas. ”
SUMMARY
County Clerks, County Recorders, and clerks
of county courts may dispose of records pursuant
to article 1941a. District Clerks may do so pursuant
to articles 1899a and 6574b. Other county officers
may make such disposition pursuant to article 657413.
Records which are not confidential in nature and
are subject to destruction may be transferred to a
private party.
The State Librarian has general authority to
dispose of records which are valueless as official
records.
JOHN L. HILL
Attorney General of Texas
ALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2363
Untitled Texas Attorney General Opinion
Combined Opinion