THE ATTORNEY GENERAL 

OF TEXAS 

August 1, 1988 

Mr. William D. Gooch 

Director and Librarian 

Texas State Library and 

Archives Commission 

P. 0. Box 12927 

Austin, Texas 78711 

Opinion No. JM-936 

Re: Whether optical data 

storage can be used in 

lieu of microfilm and 

paper by county clerks 

and school districts 

(RQ-1311) 

Dear Mr. Gooch: 

You have requested our opinion about three questions: 

1. Does H.B. 163 authorize county clerks 

and school districts to .use optical data 

storage systems as the exclusive medium for 

storage of permanent and long term records - 

that is, without also maintaining a microfilm 

or paper back-up copy? 

2. Until such time as optical data 

storage technology can meet standards for 

permanency and file integrity 

statutorily required of microfilm u::d ::: 

storage of county clerk and school district 

records, and specifically until American 

National Standards Institute standards for 

permanency have been adopted for optical disk 

storage media, would digitized county clerks' 

or school district records or paper copies 

made therefrom be deemed original records and 

so accepted by courts and administrative 

agencies, as are microfilm records? 

3. Does H.B. 163 grant the same 'individual discretion' to county clerks to adopt 

optical data storage systems for records 

filed in county or district courts as they 

have to adopt microfilm systems under Chapter 

194, or must they request approval from the 

p. 4699 
Mr. William D. Gooch - Page 2 (JM-936) 

Supreme Court 'as required by Sections 

51.803(b) and 51.807, Texas Government Code? 

House Bill 163 is set out in full as follows: 

AN ACT relating to the process of optical 

data storage. 

BE IT ENACTED BY THE LEGISLATURE OF THE 

STATE OF TEXAS: 

SECTION 1. Article 1941(a), Revised 

Statutes, is amended by adding Section 1A to 

read as follows: 

Sec. 1A. OPTICAL DATA STORAGE PROCESS. 

For the purposes described by Section 1 of 

this Act, a county clerk, county recorder, or 

clerk of a county court may adopt and use an 

optical data storage process for the storage 

of records by optical disk. This Act 

applies, to the extent feasible, to the 

optical data storage process, the optical 

disk used in that process, and the records 

stored by that process in a manner equivalent 

to the manner in which this Act applies to a 

microfilm process, the film used in that 

process, and the records stored by that 

process. 

SECTION 2. Subchapter H, Chapter 21, 

Education Code, is amended by adding Section 

21.260 to read as follows: 

Sec. 21.260. OPTICAL DATA STORAGE 

PROCESS. For the purposes described by 

Section 21.259 of this code, a school 

district may adopt a plan for an optical data 

storage process for the storage of records by 

optical disk. This section applies to 

optical data in the same manner as Section 

21.259 applies to microfilm, to the extent 

feasible, to the optical data storage 

process, the optical disk used in that 

process, and the records stored by that 

process in a manner equivalent to the manner 

in which this section applies to a microfilm 

process, the film used in that process, and 

the records stored by that process. 

p. 4700 
P 

Mr. William D. Gooch - Page 3 (JM-936) 

Acts 1987, 70th Leg., 2d C.S., ch. 72, at 224. 

This act amended two separate statutory schemes for 

record keeping -- that of county clerks and that of school 

districts. Section 1 of House Bill 163 amends V.T.C.S. 

article 1941(a), 

section lA.l 

which governs county clerks, by adding 

Section 2 of House Bill 163 amends the 

Education Code, which governs school districts, by adding 

section 21.260. 

Because the provisions of the Education Code illustrate 

this problem of statutory construction more clearly than 

those of the Local Government Code, the two relevant 

sections of the Education Code are set out in full (emphasis 

added): 

5 21.259. Microfilming Records and Reports 

by School Districts 

(a) A school district may adopt a plan for 

microphotographing or microfilming records 

and reports to accurately and permanently 

copy, reproduce, or originate records and 

reports on film. The plan must: 

(1) specify the types of records and 

reports for recording on microfilm: 

(2) require indices to microfilm 

records and reports: 

(3) require the microfilm to meet 

requirements of the United States of 

American Standards Institute for archival 

quality, density, resolution, and definition unless the school board of trustees 

1. Article 1941(a), however, was earlier repealed by 

Acts 1987, 70th Leg., ch. 149, 5 49(l). This repeal was in 

conjunction with the enactment of the Local Government Code, 

which incorporated article 1941(a) into its provisions. See 

Acts 1987, 70th Leg., ch. 149, § 1. In such a situation, 

section 311.031(c) of the Government Code provides that the 

repeal of a statute by a code does not affect an amendment 

by the same legislature that enacted the. code and that the 

amendment is preserved and given effect as part of the code 

provision. 

p. 4701 
Mr. William D. Gooch - Page 4 (JM-936) 

determines that the microfilm is intended 

only for short-term use: 

(4) require a person to certify that 

the microfilm record or report is a 

correct duplication of the original record 

or report; and 

(5) guarantee the public free access to 

information in microphotographs and microfilms to which they are entitled by law. 

(b) A microfilm record or report of a 

school district is an original record or 

report and, if.made in compliance with this 

section, shall be accepted by a court or 

agency of this state as an original record. 

A copy on paper or film of microfilm record 

or report that is certified by a record 

keeper of the school district shall be 

accepted by a court or agency of this state 

as a certified copy of an original record or 

report. 

(c) An original record or report which is 

microfilmed in compliance with a plan adopted 

under this section may be destroyed at the 

direction of the school board of trustees, 

unless required to be preserved by state or 

federal law. 

(d) An original record or report of the 

school district which is not microfilmed in 

compliance with a plan adopted under this 

section or is determined to be worthless by 

the school board of trustees may be destroyed 

at the direction of the board of trustees, 

unless required to be preserved by state or 

federal law. 

(e) If the subject matter of an original 

record or report is in litigation, the 

original record report not be 

destroyed until theOfitigation iF:ettled or 

final judgment is rendered. 

(f) Before an original record or report 

that has been microfilmed may be destroyed, 

the school district must notify the state, 

librarian and state archivist. If the state 

P. 4702 
Mr. William D. Gooch - Page 5 (JM-936) 

librarian or state archivist determines that 

the record or report is needed for the state 

library, the district shall transfer the 

record or report to the librarian or 

archivist. (Emphasis added.) 

5 21.260. Optical Data Storage Process 

For the nurnoses described bv Section 

21.259 of this code, a school district may 

ado& a nlan for an ontical data storase 

process for the storage bf records by optical 

disk. This section applies to optical data 

in the same manner as Section 21.259 applies 

to microfilm, to the extent feasible, to the 

optical data storage process, the optical 

disk used in that process, and the records 

stored by that process in a manner equivalent 

to the manner in which this section applies 

to a microfilm process, the film used in that 

process, and the records stored by that 

process. (Emphasis added.) 

Thus, as set out in the statute, to achieve the 

purposes of section 21.259, section 21.260 authorizes the 

use of optical data storage. Among the purposes of section 

21.259 is "permanently" copying. You are concerned that it 

is not technologically feasible to achieve the purpose of 

O1permanentlyl' copying using optical data storage. You have 

cited several articles that question the archival life of an 

optical disk, suggesting that it is perhaps no more than ten 

years. See, e.~., Canning, Ontical Disks in the Office, 5 

IMC Journal 9 (Sept./Ott. 1987) ; Calmes, To Archive and 

Preserve: A Media Primer, Inform 14 (May 1987); McQueen 8 

Boss, Videodisc and Ootical Disital Disk Technoloaies and 

Their Aonlications in Libraries, Am. Lib. Ass'n (1986). 

Significantly, you have learned that neither the National 

Archives and Records Administration nor the Library of 

Congress consider optical data storage as acceptable for 

permanent records. See Correspondence of Nov. 2, 1987, from 

Alan Calmes, Preservation Officer of the NARA, to William 

Gooch. 

In your first question, therefore, you ask whether H.B. 

163 authorizes county clerks and school districts to use 

optical data storage without also maintaining a microfilm or 

paper copy of records. Without much doubt, the legislature 

contemplated this as a possibility. We draw this conclusion 

from the claim in the Bill Analysis that an optical disk 

“may have a longer media archival life than microfiche" and 

P. 4703 
Mr. William D. Gooch - Page 6 (JM-936) 

that "county records storage space requirements would be 

lessened." Bill Analysis, Tex. H.B. 163, 70th Leg. (1987). 

Neither of these claims would have been relevant unless the 

bill meant to authorize replacing microfilm and paper with 

optical disks. Thus, while not expressly saying so, the 

Bill Analysis seems to contemplate the possibility of 

optical data storage without the retention of microfilm or 

paper. This conclusion is supported by the sponsor's 

explanation of the bill to the House upon second reading. 

Debate on Tex. H.B. 163 on the Floor of the House, 70th 

L-w., 2d C.S. (July 18, 1987) (tape 24, side A) (available 

from House Committee Coordinator's Office). 

The critical point, however, is that while the legislative history suggests that the legislature considered it a 

possibility that optical data storage might replace microfilm and paper records, the legislature provided in the act 

itself certain safeguards to ensure that the technology of 

optical data storage guaranteed permanence before it could 

be employed by county clerks or school districts. Before 

optical data storage can be used as the exclusive method of 

record retention, any plan adopted by a county clerk or a 

school district must meet the requirements of chapter 194 of 

the Local Government Code or section 21.259 of the Education 

Code, respectively. We again turn to the Education Code to 

make our point. 

Section 21.260 provides that it "applies to optical 

data in the same manner as Section 21.259 applies to microfilm, to the extent feasible . . . .I' What this means is 

unclear. For several reasons that will be explained, we 

read section 21.260 to incorporate the requirements of 

section 21.259 into section 21.260. Among the requirements 

of section 21.259 is subdivision (a)(3), which states that 

microfilm must meet the requirements of the "American 

Standards Institute for archival quality, density, resolution, and definition unless . . . the microfilm is intended 

only for short-term use." You have learned that as of yet 

there are no American National Standards Institute (ANSI) 

Standards for archival use of optical data storage. Correspondence of October 26, 1987, from William H. Rockwell, Vice 

President of ANSI, to William D. Gooch. Until such time as 

there are, under section 21.260, no school district could 

adopt a plan for optical data storage, except for short-term 

use. The same is true of county clerks. See Local Gov't 

Code 5 194.005, T, 194.010, 5 194.017. 

Thus, by incorporating the requirements of section 

21.259, section 21.260 ensures that optical data storage 

cannot be used until standards are developed that guarantee 

P. 4704 
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Mr. William D. Gooch - Page 7 (JM-936) 

archival quality. We chose this construction' of section 

21.260 because it best comports with the express legislative 

objective of guaranteeing permanent recordkeeping. A 

statute should be construed with reference to its manifest 

object, and if the language is susceptible of two 

constructions, one of which will carry out and the other of 

which will defeat the manifest object, the construction that 

will carry out the manifest object should be chosen. 

Citizens Bank of Brvan v. First State Bank, 580 S.W.2d 344, 

348 (Tex. 1979). 

To read section 21.260 as authorizing optical data 

storage without reference to the requirements of section 

21.259 would mean that any system of optical data storage 

could be adopted, even if it did not adequately preserve 

public records. If possible, such a construction is to be 

avoided. Long term preservation of public records is very 

much in the public interest. When, as in this case, the 

intention of the legislature is so vaguely expressed, it is 

proper to consider the consequences of any proposed 

construction and place upon the statute a construction that 

will not prejudice the public interest. National Surety 

Corx). v. Ladd, 115 S.W.2d 600, 603 (Tex. 1938). 

We do not read the phrase "to the extent feasible" as 

requiring a different interpretation. Providing that 

section 21.259 is incorporated into section 21.260 "to the 

extent feasible" does not mean that if the technology of 

optical data storage cannot meet the requirements of section 

21.259 that it need not. Rather, the phrase 'Ito the extent 

feasible" means to the extent that a particular requirement 

of section 21.259 is relevant to the technology of optical 

data storage. Again taking the example of subdivision 

(a)(3), as we read "to the extent feasible," any plan for 

optical data storage must require that it meet standards 

for archival quality, but such storage need not meet the 

requirements for "resolution" since resolution is a 

technical term applying only to film and not to optical data 

storage. 

Construing the phrase in this fashion harmonizes the 

statute and ensures that it fulfills the apparent 

legislative objective. In construing a statute, all 

sections, words, and phrases must be considered together, 

every provision should be construed with every other 

provision to produce a harmonized whole: and one provision 

will not be given a meaning out of harmony or inconsistent 

with other provisions, although it might be susceptible of 

such construction standing alone. Black v. American Bankers 

Ins. Co., 478 S.W.Zd 434, 437 (Tex. 1972). 

P- 4705 
Mr. William D. Gooch - Page 8 (JM-936) 

In summary, before adopting a plan for optical data 

storage, a county clerk or a school district must be sure 

that the plan meets the requirements for archival quality 

established by the American National Standards Institute. 

Until there are such standards, no such plan can be adopted. 

In your second question you ask whether records stored 

on optical disk must be accepted as original records by a 

court or agency of this state. Our answer to your first 

question dictates our answer to your second question. 

Again, we will consider the question under the Education 

Code. Under section 21.259(b) of the Education Code, only 

those records "made in compliance with" that section can be 

accepted as an original record. Since one of the 

requirements of section 21.259 is meeting the ANSI standards 

for archival quality, and since this requirement is 

incorporated into section 21.260 for optical data storage, 

then records on optical disks or made from optical disks 

cannot be considered original records until ANSI has 

established standards for archival quality for optical data 

storage, and records are produced under a plan that meets 

those standards. The result is the same for the records of 

county clerks under the Local Government Code. See Local 

Gov't Code, 5 194.005, 5 194.010, § 194.017. 

In your third question you ask whether county clerks 

must request approval from the Supreme Court under 

subchapter I of chapter 51 of the Government Code before 

adopting optical data storage for the filing of court 

records. This question confuses filing and storage. 

Subchapter I of chapter 51 of the Government Code relates to 

establishing a system for "the electronic filing of 

documents." Chapter 194 of the Local Government Code 

relates to storing documents after filinq. Supreme Court 

;a;roval is required for an electronic filing system, but 

for storage on optical disk after filing. As a 

practical matter, however, until ANSI standards for archival 

quality are developed for optical data storage, no county 

clerk can employ a plan for optical ~data storage under 

chapter 194 of the Local Government Code. 

SUMMARY 

Before adopting a plan for optical data 

storage, a county clerk or school district 

must be sure that the plan meets the requirements for archival quality established by the 

American National Standards Institute (ANSI). 

Until there are such standards, no plan can 

be adopted. Records stored on optical disks 

P. 4706 
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Mr. William D. Gooch - Page 9 (JM-936) 

are not original records unless they are 

stored pursuant to a plan that meets ANSI 

standards. Subchapter I of chapter 51 of the 

Government Code, authorizing the electronic 

filing of certain documents by county clerks, 

relates to filing, not storing. Chapter 194 

of the Local Government Code, relating to 

storing, operates without reference to 

subchapter I of chapter 51 of the Government 

Code. 

JIM MATTOX 

Attorney General of Texas 

WARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by F. Scott McCown 

Assistant Attorney General 

P. 4707