Hon. Dorman H. Winf'rey Opinion No. WW-1456
Director and Librarian
Texas State Library Re: Whether Article 5441a, Sec.
Austin 11, Texas 3, Vernon's Civil Statutes,
authorizes the destruction
of newspapers in print, pur-
chased pursuant to Article
5441, Vernon's Civil Statutes,
if a microfilm copy of the
newspapers be preserved and
the State Auditor consents
to the destruction of the
Dear Mr. Winfrey: same.
You have requested the opinion of the Attorney General
with regard to the following questions:
"1. Does Article 5441a, Section 3 author-
ize the destruction of newspa ers in print, pur-
chased pursuant to Article 54 E1, Section 3, If
a microfilm copy of the newspapers be preserved
and if the consent of the State Auditor to the
destruction of the newspapers be obtained.
"2. If not, does Artfcle 5&41b R.C.S. 0 ,
authorize the destruction of the newspapers which
are over 10 years old, if the procedures of the
statute are complied with?"
In your letter you also state that the Library is
faced with a "critical problem in housing the newspapers" and
that the cost for binding newspapers now on hand would be ap-
proximately $20,000.00.
Following are the pertinent sections of Title 89,
Articles 5441 and 5441r, Vernon's Civil Statutes:
"Art, 5441. Duties of Librarian
11. . .
"3. He shall endeavor to collect all manu-
script records reiating to the history of Texas
Hon. Dorman H. Winfrey, page 2 (W-1456)
In the hands of private Individuals, and where
the originals cannot be obtained he shall endeavor
to procure authenticated copies. He shall be au-
thorized to expend the money appropriated for the
purchase of books relating to Texas, and he shall
seek diligently to procure a copy of every book,,
pamphlet, map or other printed matter giving valu-
able Information concerning this State. He shall
collect portraits of photographs of as many of the
prominent men of Texas as poesible. He shall en-
deavor to complete the files of the early Texas
newspapers in the State Library; and he,shall cause
to be bound the current files of not less than ten
of th leading newspapers of the State and th e cur-
rent Files of not 1 ess than four leading newspapers
of other states, and of as many county papers, pro-
fessional journals, denominational papers, agricul-
tural papers, trade journals and other publications
of this State as seem necessary to preserve In the.
State Library an accurate record of the history of
Texas. ” (Emphasis ours)
“Art. $&la. Records Administration Division
II. . .
“‘Public records’ shall mean originals or
copies of written or printed books, newspapers,
magazines, documents, correspondence, papers,
maps, drawings, charts, Indexes, plans, memoranda,
sound recordings, motion-picture or other photo-
graphic records, which are the property of any
State department or lnatltution.
8,
. . .
“3 . With the consent and cooperation of the
heads of the various departments and lnstltutlotjs
the public records of such departments and lnati-
tutiona shall be surveyed, Indexed and clareified
under the direction of the records administration
division. Furthermore, with the approval of the
State Librarian the head of any d epartment or in-
EEtution may d eatroy any p blic records in his
custody which, in his opinlin, have no further
legal, administrative or historical value, provided,
. .
Hon. Dorman H. Wlnfrey, page 3 (WW-1456)
however, that he shall first file application to do
so with the State Librarian, describing in such ap-
plication the original purposes and contents of
such
public and provided further, that the
approval of the State Auditor shall also be required
with regard to the destruction of public records of
a fiscal or financial nature."
In 1946 this office issued Opinion No. O-7132 which
stated that "the words 'cause to be bound' mean 'binding1 In
the conventional sense, and will not permit the substitution of
mlcrofllmi.ng."
Following this opinion, in 1947 the Legislature en-
acted Article 5441a, and in 1959 Article 5441b was adopted.
Section 2, Article 5441a. specifically includes news-
papers acquired by any State department or institution within
the term "public records" for the purposes of this Article.
Section 3 of Article 544la provides that such rec-
ords may be destroyed when, In the opinion of the department
head and the State Librarian, these records "have no further
legal, administrative, or historical value." This section of
the article does not change in any way the dut of the Librar-
ian to "cause to be bound the newspapers, w ich duty is ex-
-9
plicitlv set out in Section 3 of Article 5441, but merely au-
thorizes a procedure for destruction of previously collected
records when they are properly adjudged to be valueless. Of
course, when a public record has been properly held to be
valueless, its destruction may take place, but without such a
findin~g that the records are valueless Section 3, Article 5441a
does not authorize destruction merely because a microfilm copy
of the record exists. Likewise this office cannot hold that an
alternative method for preservation of records constitutes com-
pliance with the statute where then Legislature has clearly de-
fined the procedure to be followed; and this would be true even
where such an alternative method might be technically superior
to the procedure authorized by the Legislature. For this reason,
this office sees no reason to overrule Opinion No. O-7132 issued
in 1946. In answer to your first question we are of the opinion
that Section 3, Article 5441a, does not authorize the destruction
of newspapers In print, purchased pursuant to Section 3, Article
5441, even though a microfilm copy of the newspaper is to be
preserved, and even if the consent of the State Auditor to the
destruction of the newspapers be obtained unless such newspapers
are adjudged to be valueless.
Hon. Dorman H. Winfrey, page 3 (w-w-1&56)
With regard to your seconl fnqu5ry, Article 5441b
provides:
"Art. 5441b. Disposition of valueless records
"Secticn 1. The State Librarian of the State
of Texas is hereby authorkeX3 to transfer, destroy
or otherwise dispose of any records of the State
of Texas consi. ned by law to his custody that are
more than ten $ 10) years ?1 an,3 wh:ch the State
Librarian shall deternIne to be vakeless, or of
no further use., to the Staz of %xas as official
records. Provide 3, however p none of m-h records
shall be disposed of in any manner unless the State
Comptroller, the State Auditor an'5 th& Attorney Gen-
eral of the State of Texas shall first have agreed
with the State Librarian that the preservation of
any such records are no longer necessary as evidence
and will serve no useful 2urpoae in the future ef-
ficient operation 0 f -the State Gsverrment. All
such records d!ispose,d of, ,a5 agreed .upon, shall
be generally listed and referred to and such list
shall be subscribed to by all of saf Cfffcials
showing their consent to su:h dfs~os%tfoc.
"Sec. 2. Any such records which the Attorney
General, State Comptroller, State Auditor and State
Librarian, or any one or more of them deem necessary
tom preserve, may be so preser.ved by microfilming
such records and such microfilm copies shall there-
upbn constitute original records for all legal pur-
poses. Thereafter the orfginals of such records may
be disposed of in such manner as such Officials may
agree on; provided, however, that such microfilming
shall be done only if funds are available for that
purpose or are appropriated by the Legislature of
the State of Texas for that purpose to cover the
cost of such microfilming for the State of Texas.
"Sec. 3. Any such records held to be no longer
needed for the operation of the State Government or
those replaced by microfilm copies may nevertheless
be transferred to the Archfves Division of the Texas
State Library if the State Librarian deems them to
be of historical value."
. .
Hon. Dorman H. Wlnfrey, page 5 (WW-1456)
This article merely sets forth a method by which
destruction of valueless records may be accomplished or, in
the alternative, such records may be toreserved in microfilm
and the original records may be destroyed after being kept
for '10 years. Under this article destruction may be accom-
plished when approval Is secured from the Attorney General,
State Comptroller, State Auditor, and State Librarian.
Therefore, the answer to your second question is in
the affirmative. Thus, such destruction or preservation through
the use of microfilming that you inquire about may be accom-
plished under this statute by compliance therewith.
SUMMARY
Section 3, Article 5441a, does not authorize the
destruction of newspapers in print, purchased pursuant
to Section 3, Article 5441, even though a microfilm
copy of the newspaper is to be preserved and even if
the consent of the State Auditor to the destruction of
the newspapers is obtained, unless such newspapers are
adjudged to be valueless.
Article 544113 authorizes the destruction of the
newspapers which are over 10 years old, if the pro-
cedures of the statute are complied with.
Yours very truly,
WILL WILSON
neral of Texas
By:
SS:wb:mkh Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Lewis
Frank Booth
Fred D. Ward
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Leonard Passmore