TEE ATTORNEY GENERAL 

OF TEXAS 

February 2, 1989 

Honorable William D. Gooch Opinion No: ~~-1013 

Director and Librarian 

Texas State Library Re: Whether records created 

Lorenzo De Zavala State and/or received by the GoverArchives and Library Bldg. nor's Office are public reP.O. Box 12927 cords within the meaning of 

Austin, Texas 78711 the Open Records Act, article 

6252-17a, V.T.C.S., and of 

section 441.031(l)(2)(5) of 

the Texas Government Code. 

(RQ-1579) 

Dear Mr. Gooch: 

You ask several questions about the authority of the 

Texas State Library and Archives Commission over records 

generated or received by the governor's office in conducting 

its business. You inform us that Ima number of Texas 

governors, following an informal and unwritten tradition, 

have removed from state custody all or a very large part of 

the records created during their administration." You ask: 

1. Are the records which are created and 

received by the Office of the Governor of 

Texas in the course of carrying out the 

statutorily assigned duties of that office 

considered public records, as defined in 

V.T.C.A., Government Code, Chapter 441, 

Section 441.031(l)(2)(5) and V.A.C.S., Art. 

6252-17a, Sections 2(3) and 3? 

2. If the records of the Governor's Office 

are public governmental records, is their 

removal from the custody of the state at the 

end of a gubernatorial administration 

considered in violation of Texas Penal Code, 

Chapter 37, Section 10, or V.A.C.S., Art. 

6252-17a, Sec. [12]? 

3. If the records of the Governor's Office 

are public governmental records, what legal 

p. 5226 
or. William D. Gooch - Page 2 (JM-1013) 

action(s) can the Texas State Library, as the 

agency responsible for the management and 

preservation of public records, initi;E;ori; 

obtain custody of any such public 

that have been removed from the custody of 

the state? 

Chapter 441 of the Texas Government Code governs, among 

other things, the Texas State Library and Archives 

Commission (the commission) and the preservation of the 

state's public records. Sections 441.001 through 441.016 

set out the structure and general powers and duties of the 

commission. Sections 441.031 through 441.039 govern the 

retention of public records. your first question is whether 

records created or received by the governor's office in 

carrying out its statutory duties are subject to chapter 

441, specifically to section 441.031(5). 

Section 441.031(5) of the Texas Government Code 

provides: 

*Public record* means a document, book, 

paper, photograph, sound recording, or other 

material, regardless of physical form or 

characteristic, made or received accordina to 

law or owce or rn connection with the 

. . transaction of officral businea . The term 

does not include library or museum material 

made or acquired and preserved solely for 

reference or exhibition purposes, an extra 

copy of a document preserved only for 

convenience of reference, or a stock of 

publications or of processed documents. 

(Emphasis added.) 

Records received or created by the governor*8 office in 

carrying out its statutory duties clearly fall within this 

definition. 

You also ask whether the records of the governor's 

office constitute public records subject to the Texas Open 

Records Act, article 6252-17a, V.T.C.S. Section 2(2) of the 

Open Records Act provides: 

*Public records' means the portion of all 

documents, writings, letters, memoranda, or 

other written, printed, tw=d , copied, or 

developed materials which contains nublic 

information. (Emphasis added.) 

p, 5227 
Mr. william D. Gooch - Page 3 (JM-1013) 

Section 3(a) provides: 

All information collected, assembled, or 

maintained by governmental bodies pursuant to 

law or ordinance or in connection with the 

transaction of official business is public 

information and available to the 

during 

public 

normal business hours of any 

governmental body, with the following 

exceptions only [followed by 22 specific 

exceptions]. 

Records received or created by the governor's office in 

carrying out its statutory duties are subject to the Open 

Records Act and may be withheld from the public only if one 

of the act's specific exceptions protects them. Si2s Open 

Records Decision No. 116 (1975); see also Open Records 

Decision Nos. 241 (1980); 212 (1978); 177 (1977). Section 

5(a) of the act requires the custodian to preserve records 

Subject to the act. See also V.T.C.S. art. 6252-17a, 8 12 

(criminal penalty for removal of public records). 

Your second question is whether the removal of public 

records from the custody of the state at the end of a 

gubernational administration violates chapter 37 of the 

Texas Penal Code. Section 37.10 of the Penal Code provides: 

(a) A person commits an offense if he: 

(1) knowingly makes a false entry in, or 

false alteration of, a governmental 

record: 

(2) makes, presents, or uses any record, 

document, or thing with knowledge of its 

falsity and with intent that it be taken 

as a genuine governmental record; or 

(3) . . 

removes. or otherwise lmoalrs the veritv, 

leaibilitv. or avabbilitv of a 

(b) It is an exception to the application 

of Subsection (a)(3) of this section that the 

governmental record is destroyed pursuant to 

legal authorization. 

(cl An offense under this section is a 

Class A misdemeanor unless the actorIs intent 

p. 5228 
Mr. William D. Gooch - Page 4 (JM-1013) 

is to defraud or harm another, in which event 

the offense is a felony of the third degree. 

(Emphasis added.) 

Section 37.01(1)(A) of the Penal Code defines 

"governmental record" to mean anything "belonging to, 

received by or kept by government for information." Records 

received or created by the governor#s office in carrying out 

its statutory duties are government records within the 

meaning of section 37.01(1)(A). 

Whether the removal of specific gubernatorial records 

from the custody of the state at the end of a gubernatorial 

administration constitutes a violation of section 

37.10(a)(3) depends on the facts surrounding the removal in 

question and on whether any other law in effect at the time 

of removal authorized the removal. Violation of section 

37.10(a)(3) requires proof of an intentional removal that 

would impair the availability of the record. Violation of 

section 37.10(a)(3) also requires proof of a culpable state 

of mind -- an intent- act. The legislature did not 

intend our opinion process to resolve disputed questions of 

fact. 

Similar considerations apply to a violation of section 

12 of the Texas Open Records Act. A violation of section 12 

requires proof of the willful, unauthorized removal of 

public records. $&9 Attorney General Opinion H-808 (1976). 

Violation of the act's criminal sanctions depends on the 

facts in a given case. $&3 Attorney General Opinion JW-265 

(1984). As indicated, the opinion process was not intended 

to resolve disputed questions of fact. 

your final question relates to the commission's 

remedies to obtain custody of public records that have been 

removed from the commission's custody or from the custody of 

the state. Section 441.002(g)(E) of the Government Code 

provides that the commission shall 

demand and receive from the officer of the 

state department in charge of it, any book, 

map, paper, manuscript, document, memoranda, 

or data relating to the history of Texas not 

connected with or necessary to the current 

duties of the officer. 

This provision grants the commission authority to demand 

physical custody of Texas public records that are "not 

connected with or necessary to the current duties of the 

officer." 

p. 5229 
Mr. William D. Gooch - Page 5 (JM-1013) 

Section 441.010(d) of the Government Code provides: 

A state, county, or other official lazy turn 

over to the state library for permanent 

preservation in the library an official book, 

record, document, original paper, map, chart, 

newspaper file, or printed book 

ial's offi $-vt 

director and librarian shall give * the 

official a receipt for an item turned over 

under this subsection. (Emphasis added.) 

This provision gives state officials discretion to determine 

when their records are in "current use." If their records 

are in current use, state officials have no obligation to 

submit public records to the commission. In light of 

section 441.002(g)(E) and the overall purpose of chapter 

441, however, we do not believe that section 441.010(d) 

grants state officials the authority to refuse to give to 

the commission public records that are not in current use. 

If records are not in current use, the commission must 

classify the records 

destruction. 

either as permanent or subject to 

Records to be designated permanent public 

records must be provided to the commission pursuant to 

section 441.002(g)(S). Permanent records, records that are 

not subject to destruction, cannot, as a general rule, be 

transferred out of the custody of the state of Texas. See 

Attorney General Opinion R-523 (1975). Public records 

cannot be destroyed or classified as subject to destruction 

without the approval of the director of the records 

management division and the librarian. Gov . Code 

5 441.035(d). Unless records subject to destruction are 

confidential, they may be transferred out of the custody of 

the state once they have been classified by the director and 

the librarian as subject to destruction. 

General Opinion R-523 (1975). 

$&$ Attorney 

The Government Code presumes that government officials 

will cooperate with regard to the disposition and 

classification of public records. Section 441.032(b) 

provides that the records management division of the 

commission shall "manage all public records of the state 

with the cooperation of the heads of the various departments 

or institutions in charge of records." Section 441.034 

provides that the records management division shall, "with 

the cooperation of the heads of departments and 

institutions," survey, index, and classify public records. 

p. 5230 
Mr. William D. Gooch - Page 6 (JM-1013) 

As indicated, section 441.002(g)(S) authorizes th; 

commission to demand custody of public records that are 

in current use. Section 441.002(i) provides: 

If there is a disagreement as to the proper 

custody of a book, map, paper, manuscript, 

document, memorandum, data under 

Subsection (g)(S), the attogey general shall 

decide proper custody. 

Proper custody of specific records depends on the facts of a 

given case and on whether any other statutes address the 

disposition of the specific records at issue. 

SUMMARY 

Records created or received by the 

governor8s office in carrying out its 

statutory duties fall within the definition 

of wpublfc records" in section 441.031(5) of 

the Texas Government Code and the definition 

of "public records' in section 2(2) of the 

Texas Open Records Act, article 6252-17a, 

V.T.C.S. 

Such records also constitute "governmental records" within the meaning of sections 37.01(1)(A) 

Texas Penal Code. 

and 3;;:Ea)(3) of the 

37.10(a)(3) 

prohibits, among other things, the intentional, unauthorized removal of governmental 

records. Whether the removal of specific 

gubernatorial records from the custody of the 

state at the end of a gubernatorial administration violates section 37.10 depends on 

proof of the elements of the criminal offense 

described in section 37.10. 

Similarly, violation of section 12 of 

the Open Records Act, which prohibits the 

unauthorized removal of public records, 

depends on the facts in a given case. 

Section 441.002(g)(S) of the Government 

Code authorizes the Texas State Library and 

Archives Commission to demand physical 

custody of public records that a state 

official has determined are not in current 

use. Section 441.002(i) provides that the 

p. 5231 
! Mr. William D. Gooch - Page 7 (JM-1013) 

attorney general shall resolve disputes 

regarding the proper custody of records 

subject to section 441.002(g)(S). 

Jzyok JIM MATTOX 

Attorney General of Texas 

MARYKEXLER 

First Assistant Attorney General 

ICUMCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEARLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

JENNIFER S. RIGGS 

Chief, Open Government Section 

of the Opinion Committee 

Prepared by Jennifer S. Riggs 

Assistant Attorney General 

p. 5232