The Honorable E. L. Short

Chairman Opinion No. H-852 Committee on Intergovernmental Re: Length of time required Affairs before an incorporatedcity House of Representatives may destroy the original Austin, Texas 78701 paper public record after it has been microfilmed.
Dear Mr. Short:
you ask when original paper public documentsmay be destroyed by a city after beingmicrofilmed. In addition, you ask when themicrofilm recordsmay be destroyed.
From 1947 to 1971, the authority of.political subdivisions, including cities, to duplicate and dispose of original records generallywas regulatedby article 657413, V.T.C.S., which specificallyprovided that:

Whenever photographicduplicates of public records are somade

. . . the original recordsmay be

. . . destroyed or otherwise disposed of, provided, however, that no original record shall be destroyed or otherwise disposed of unless or until the time for filing legalproceedingsbased on such record shall have elapsed, and, in no event, shall any original public record be destroyed or otherwise disposed of until saidpublic record is at least fiver TEFS old

. . . . !J&4Y-- -sasis added).-

p.3595The Honorable E. L. Short - page 2 (H-852)

In 1971, article 1941(a),V.T.C.S.,was enacted for counties, repealingarticle 6574b insofar as in conflict, and providing that counties could dispose of original records only after the microfilm copy had been used for five years.
In 1975, article 6574~~V.T.C.S., was enacted for incorporated cities. It repealed article 6574b insofaras the two conflicted and provided, in section 3, that cities could enact ordinances for disposal of their records:

Original public recordswhich are microfilmed in compliancewith an ordinance authorizedby thisAct may be destroyed after five wm are no -F=' Original public records

microfilmed in compliance with an ordinance authorizedby thisAct or are determinedworthless by the governing body of an incorporatedcitymay be destroyed as directedby the governing body. Notice of proposed destruction or disposition of originalpublic records shall first be given to the State Librarian or State Archivist, and if such records are, in his opinion, needed for the State Library, the records shall be transferred thereto. (Emphasisadded). Since your question is directed only to those paper documents that are microfilmed,we do not address the question of a governing body's authority to destroy records that are not microfilmed. In our opinion, it is clear that public records which are microfilmedmay be destroyed only "after five years." However, you further questionwhether "after five years" in article 6574~means five years after the document came into existence (i.e., "fiveyears old" as previouslyprovided in article 65746) five years after the document ismicrofilmed (i.e.,as provided for counties in article 1941(a)). Article-c is ambiguous in this regard, and it is appropriate in determining legislative intent to refer to other statutes. includinc revealed ones. relatina to the same subjectmatter. 51. In our opinion, & materia with article 6574~ is its predecessor for -

p.3596: -

The Honorable E. L. Short - page 3 (H-852)

incorporatedcitie6, article 6574b,which has been repealed only insofar as they conflict. See Attorney General Opinion H-523 (1975)

. Therefore, an ord=nce passed under article 6574~may provide that, aftermicrofilming, original paper documents are to be destroyed'once they are at least five years old. The ordinance similarlymay provide for the destruction of documents already five years old at the time of microfilming. In neither instance,however,may such destruction occur until after the State Librarian or State Archivist has had an opportunity to order the records transferred to the State Library as provided in article 6574~.
your last question concernswhen the microfilm record may be destroyed. In section 2 of article 6574c, suchmicrofilm records are defined as "originalpublic records." It is possible therefore to construe section3 of the article to allow destruction of microfilm copies once they are fiveyears old. In our opinion, such a resultwould be contrary to the apparent legislative intent evidenced elsewhere in the article, such as in section 1 of article 6574c,which requires that the microfilm process result in "permanent"copies,. In addition, such a result would be contrary to past legislativepolicy in favor of maintainingpublic records, and to:the ,historical purpose of microfilm copies as permitting a permanent retention of public documentswith a minimum use of space. See s V.T.C.S. arts. 1941a, 1899, 6574b;Attorney General OpinionsWW-1456 (19621,WW-793 (1960)and V-1079 (1950). We believe the section 2 description of microfilm records as original public recordswas intended only for purposes of the use of such records in court as provided in section 2 of article 6574~ and not for purposes of destruction as provided in section 3.
SUMMARY

A city ordinance passed pursuant to article 6574c,V.T.C.S.,may provide that, after microfilming, original public recordsmay be destroyedwhen they are at least five

p.3597The Honorable E. L. Short - page 4 (H-852)

years old. Article 6574~does not provide for the destruction of themicrofilm records after five years.

APPROVED: ery truly yours,

Opinion Committee jwb

p.3598