R-888
AUSTZN. TEXAS.
PRICE DAN- WAOAN DICKSON
r--o-a. -*--
November 20, 1947
Hon. Jesse James, Opinion No. V-.435
State Treasurer,
Austin,~Texas Re: Authority of the Treas-
ury Department to micro-
film and destroy Old Age
Assistance warrants,pay-
ing the expense thereof
from its contingent ex-
pense funds.
Dear.Sir:.. .
Tour request for an opinion by this department
upon the above subject matter is as follows:
nAt its regular session in 1947 the Legis-
lature enacted House Bill 250, creating E
Records Administration Division in the
State Library. This statute allows the
microfilming and subsequent destruction of
public records deemed no longer useful.
However,,no funds were provided for carry-
ing out the provisions of this act.
"Due to lack of space for filing purposes,
this department desires to microfilm and
destroy all Old Age Assistance warrants
paid by this office prior to September'l,
1942. Under the provisions of this and
other statutes are we authorized to do
this, paying the expenses thereof from our
contingent expense funds? We;'qf course,
intend to obtain the approval of the Li-
brarian and the State Auditor. We have
already obtained the approval of the Re-
gional Director of the Social Security Ad-
ministration.8
Section 1 of House Bill Non.250, 50th Legisla-
ture, General and Special Laws, 1947, page 945, author-
izes the Texas Library and Historical Commission to
establish and maintain in the State Library a Records
.
Hon. Jesse James, Page 2 (V-435)
Administration Division "which (1) shall manage all
public records of the State with the consent and co-
operationqf the heads of the various departments and
institutions izzcharge of such records~and (2) shall
also conduct e photographic laboratory for the purpose
of making photographs, micro-photographs, or repro-
ductions on film, or to arrange for all or part of
such work to be done by an established commercial
agency which meets the specifications established by
this Article for the proper a~ccomplishmentof the
work . . ett
3ection 1 of this Act further provides that
"the State Librarian is hereby,authorized to make pho-
tographic reproductions for private and public use on
the following basis: (1) For official use of depart-
ments and.institutions no charge shall be made; (2)
for the official use of local units of government
charge shall be made on a cost~basis; ';(3)for copies
of public records for private,use charge shall be at
a rate to~W+fixed by the State Librarian in keeping
with standard commercial rates . . .n
Section 2 of House Bill 250 @rovideethat
" . when any State official has haai'iphotographic
ripGoductions.'+. * made of any public"records . . .
in his office, even though 'such records be current,
he may designate such photographic reproductions as
original records for all legal purposes and may there-
upon transfer the records which have been replaced by
the photographicreproductions to the State Librarian,
who shall receipt therefor. The State Librarian with
the consent of.the 3tate Auditor may dispose of trans-
ferred records by further transfer or by destruction
. . ."
The provisions of Section 1 of this Act cre-
ate a procedure by which the Texas Library and Histor-
ical Commission may undertake the work of microfilming
department records for official use of departments at
no charge to the department in question. It is re-
gretable,that no appropriation was made to defray the
expenses of operating this Records Administration Di-
vision in the State Library, since the absence of an
appropriation has necessarily prevented the Texas Li-
brary and Historical Commission from carrying Section
1 of this Act into operation at this time. Since the
Hon. Jesse James, Page 3 (V435)
item of contingent expense in the appropriation for the
State Treasury Department is specifically for the pay-
ment of contingent expenses of that department, this
State Treasury Department contingent expense appropri-
ation would not be transferable to the Texas Library
and Historical Commission for the purpose of enabling
the Records Administration Division in the State Libra-
ry to undertake the reproduction work you have in mind.
Section 2 of this Act specifies the action
which may be taken by a State official after that of-
ficial "has had photographic reproductions made of any
public records in his office". To specify the action
which any State official might take in connection with
photographic reproductions which he has had made would
be useless if State officials lacked the authority to
make such reproductions in the first instance. It
must follow that this legislative expression of the ac-
tion which State officials may take with reproductions
they have had made is a legislative expression that
the authority to make such reproductions is vested in
the heads of State departments and institutions.
Since the State Treasurer has authority to
have photographic reproductions of his records made
without reference to the authority of the Records Ad-
ministration Division in the State Library, it is our
opinion the contingent expense appropriation of the
State Treasury Department may be utilized by the State
Treasurer to defray the cost of having these records
microfilmed.
The State Librarian would not be authorized
to enter into.a contract to do this reproduction work
for the State Treasury Department at commercial rates,
due to the express provision in H. B. 250 that its
work for such Departments shall be without charge.
In the previous opinion of this office num-
bered O-2241, a copy of which is enclosed for your
reference, it was held that a State agency could not
destroy its records in absence of a statute author-
izing such destruction. We expressly adhere to that
previous opinion. However, while the State Treasury
Department is not authorized to destroy these records
following their photographic reproduction on micro-
film, Section 2 of this House Bill 250 specifies the
action which the State Treasurer may take with these
. .
Hon. Jesse JamesjPage 4 (V-435)
records, The State Treasurer may designate the photo-
graphic reproductions as original records for all legal
purposes, and may thereupon transfer the records which
have been replaced by the photographic reproductions to
the State Librarian, who shall receipt therefor.
The State Librarian with the consent of the
State Auditor, would be autho&ized to further transfer
these records or to destroy these records, although the
State Treasurer could not undertake such destruction at
his own instance,
SUMKiRY
The State Treasury Department is authorized
to have photographic reproductions of its rec-
ords prepared, defraying the cost of this work
from the contingent expense appropriation of
the.State Treasury Department.
The State Treasury Department is not au-
thorized to destroy,its original records fol-
lowing their photographic reproductions, but it
is authorized to transfer the records which
have been replaced by photographic reproduc-
tions to the State Librarian. The State Libra-
rian is authorized to destroy or further trans-
fer such records.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
Bv&B&
David B. Irons
Administrative Assistant
DBI:bb
Enclosure