Untitled Texas Attorney General Opinion

GREG
0
ATTORNEY GENERAL OF TEXAS
ABBOTT

January 21, 2014

The Honorable Robert Duncan Opinion No. GA-1038
Chair, Committee on State Affairs
Texas State Senate Re: Whether statutory records retention
Post Office Box 12068 requirements apply to model lesson plans
Austin, Texas 78711-2068 developed and maintained by the Texas
Education Service Center Curriculum
Collaborative (RQ-1140-GA)

Dear Senator Duncan:

You ask five questions about "whether model lesson plans developed by the Texas
Education Service Center Curriculum Collaborative ("TESCCC" or "the collaborative") are
subject to the records retention requirements applicable to local governments and/or those
applicable to state agencies." 1 As background, you explain that ten of the state's twenty regional
education service centers ("ESCs") entered into "an interlocal agreement, formally creating the
TESCCC" as a nonprofit corporation. Request Letter at 2. Through that nonprofit,, the ESCs
pooled their resources to develop a curriculum management program, which included providing
"exemplar lesson plans ... to the member school districts." !d. You tell us that TESCCC "voted
to discontinue providing lesson plans," and you explain that "questions have arisen regarding
how to handle the discontinued lessons." Id.

Your first and second questions ask whether "the lesson plans maintained by TESCCC
and/or the member ESCs" are considered state government records, subject to chapter 441 of the
Government Code, or local government records, subject to the Local Government Records Act.
Jd. With regard to TESCCC, you tell us that in May of this year, the board of directors of
TESCCC voted to "dissolve the nonprofit and wind up its affairs," and the curriculum
management program will now be managed by the regional ESCs through a shared service
arrangement. !d. By dissolving itself and transferring management to the ESCs, it would appear
that TESCCC has relinquished control of the curriculum and affiliated lesson plans to the ESCs.

1
Letter from Honorable Robert Duncan, Chair, Senate Comm. on State Affairs, to Honorable Greg Abbott,
Tex. Att'y Gen. at I (July 23, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Robert Duncan - Page 2 (GA-1038)

Any ongoing retention obligations belong to the ESCs, and we will therefore answer your
questions only with regard to the ESCs.

Government Code chapter 441, subchapter L addresses the preservation and management
of the records of a "state agency," defined for purposes of subchapter L to include "any
department, commission, board, office, or other agency in the executive, legislative, or judicial
branch of state government created by the constitution or a statute of this state." TEX. Gov'T
CoDE ANN.§ 441.180(9)(A) (West ;2012); see also id §§ 441.180-.205. The Local Government
Records Act addresses the preservation and management of the records of a "local government,"
defined for purposes of that Act as "a county, ... municipality, public school district, appraisal
district, 'or any other special-purpose district or authority." TEX. Loc. Gov'T CODE ANN.
§ 201.003(7) (West 2008). To answer your questions, we must therefore determine whether
ESCs are state agencies or local governments.

The Legislature has directed the Texas State Library and Archives Commission (the
"Commission") to "administer the state records management program" and to "administer
programs to carry out the duties" of the Commission under the Local Government Records Act.
TEX. Gov'T CODE ANN. §§ 441.002(g)(4), .152, .182(b) (West 2012). As the agency charged
with administration of the Local Government Records Act, the Commission's reasonable
construction of the statute is entitled to deference so long as it does not contradict the statute's
plain language. See State v. Pub. Uti/. Comm 'n of Tex. 344 S.W.3d 349, 356 (Tex. 2011). In a
brief submitted to this office in response to your request, the Commission advises that it
considers ESCs local governments subject to the Local Government Records Act, explaining that
it equates ESCs to "special-purpose districts or authorities' under Local Government Code
section 20 1.003(7)_2 While the law governing ESCs doe not clearly categorize these entities as
either state agencies or local governments, we cmmot conclude that the Commission's
categorization of them as local governments is unreasonable or contrary to the statutory text.
Thus, a court would have reason to defer to the Commission's conclusion that the lesson plans
maintained by ESCs are local government records subject to the Local Government Records Act.

Your third question asks whether the lesson plans are "subject to any of the other
retention requirements of Chapter 441 of the Government Code." Request Letter at 3. Along
with the Local Government Records Act, Government Code chapter 441, subchapter J addresses
the preservation and management of local government records. TEX. Gov'T CODE ANN.
§§ 441.151-.168 (West 20 12). Most of the provisions in subchapter J address the authority and
duties of the Commission director and librarian. ld. To the extent that the provisions address
local government records, however, the ESCs are subject to chapter 441, subchapter J. See, e.g.,
id. § 441.168(a) (authorizing a local government to request the Commission to provide
microfilming or storage of local government records).

2
Brief from Edward Seidenberg, Interim Dir. & Librarian, Tex. State Library and Archives Comm'n at 1
(Aug. 13, 2013) (on file with Op. Comm.) ("Commission Brief').
The Honorable Robert Duncan - Page 3 (GA-1038)

Your fourth question asks which of the retention schedules adopted by the Commission
applies to the lesson plans and what is the minimum retention time under that schedule. Request
Letter at 3. Government Code subsection 441.158(a) requires the Commission to "prepare and
distribute ... records retention schedules for each type of local government." TEX. Gov'T CoDE
ANN. § 441.158(a) (West 2012). Pursuant to this duty, the Commission has published Local
Schedule SD, which "sets mandatory minimum retention periods for records ... commonly
found in local education agencies," expressly including "regional educational service centers."
13 TEX. ADMIN. CODE § 7.125(a)(6). Under the Local Schedule SD, "lesson plans" must be
maintained for "as long as administratively valuable." In addition to the requirements of the
Local Government Records Act, parents of Texas public school children have an absolute right
of access to teaching materials used in the classroom of the parents' child. TEX. Eouc. CODE
ANN. § 26.006(a) (West 2012). Any final disposition of the lesson plans about which you ask
must comply with this statute.

Your final question assumes that the lesson plans are not subject to any statutory records
retention provisions. Request Letter at 3. Because the lesson plans maintained by ESCs are
subject to statutory records retention provisions, we do not answer your fifth question.
The Honorable Robert Duncan - Page 4 (GA-1038)

SUMMARY

A court would have reason to defer to the conclusion of the
State Library an l Archives ommission that the model lesson
jJlans maintained by Regional Education Service enters are local
gov rnment records subject to the ocal Government Records Act.
In addition Education Service Centers must comply with
Government Code chapter 441, subchapter J with regard to the
maintenance of model lesson plans.

The State Library and Archives Commission's Local
Schedule SD applies to" the retention of lesson plans maintained by
Regional Education Service Centers. Local Schedule SD requires
that lesson plans be maintained for as long as administratively
valuable. Any final disposition of lesson plans must comport with
the absolute right of parents to access teaching materials used in
the classroom of the parents' child pursuant to subsection
26.006(a) of the Education Code.

ery truly yours,

~
GREG ABBOTT
Attorney General ofTexas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee