Hon. DormanH.Winf'rey Opinion No. WW-1456

Director and Librarian Texas State Library Re: Whether Article 5441a, Sec. Austin 11, Texas 3,Vernon's Civil Statutes, authorizes the destruction of newspapers inprint, purchased pursuant to Article 5441, Vernon's Civil Statutes, if amicrofilm copy of the newspapers be preserved and the State Auditor consents to the destruction of the Dear Mr. Winfrey: same.

Youhave requested the opinion of the Attorney General with regard to the following questions:

"1. Does Article 5441a, Section 3authorize the destruction of newspa ers in print, purchased pursuant to Article 54 1, E Section 3, If amicrofilm copy of the newspapers be preserved and if the consent of the State Auditor to the destruction of the newspapers be obtained.
"2. If not, does Artfcle 5&41bR.C.S. 0, authorize the destruction of the newspapers which are over 10years old, if the procedures of the statute are complied with?"
In your letter you also state that the Library is faced with 

### a "critical problem inhousing the newspapers" and that the cost for binding newspapers nowonhandwould be approximately $20,000.00.

Following are the pertinent sections of Title 

### 89, Articles 5441 and 5441r, Vernon's Civil Statutes:

"Art, 5441. Duties of Librarian 11

. . . "3. Heshall endeavor to collect all manuscript records reiating to the history of TexasHon. DormanH.Winfrey, page 2

### (W-1456)

In the hands of private Individuals, andwhere the originals cannot be obtained he shall endeavor to procure authenticated copies. Heshall be authorized to expend the moneyappropriated for the purchase of books relating to Texas, andhe shall seek diligently to procure acopy of every book,, pamphlet, mapor other printed matter giving valuable Information concerning this State. Heshall collect portraits of photographs of as manyof the prominent menof Texas as poesible. Heshall endeavor to complete the files of the early Texas newspapers in the State Library; andhe,shall cause to be bound the current files of not lessthan ten of th leading newspapers of the State and th rent Files of not 1 ecuress than four leading newspapers of other states, and of as manycounty papers, professional journals, denominational papers, agricultural papers, trade journals and other publications of this State as seemnecessary to preserve In the. State Library anaccurate record of the history of Texas. ” (Emphasis ours)

“Art. $&la. Records Administration Division II

. . .

“‘Public records’ shall meanoriginals or copies of written or printed books, newspapers, magazines, documents, correspondence, papers, maps, drawings, charts, Indexes, plans, memoranda, sound recordings, motion-picture or other photographic records, which are the property of any State department or lnatltution. 8,

. . .



### “3

. With the consent and cooperation of the heads of the various departments and lnstltutlotjs the public records of such departments and lnatitutiona shall be surveyed, Indexed and clareified under the direction of the records administration division. Furthermore, with the approval of the State Librarian the head of any d EEtution may d epartment or ineatroy any pblic records in his custody which, in his opinlin, have nofurther legal, administrative or historical value, provided,. .

Hon. DormanH.Wlnfrey, page 3 (WW-1456)

however, that he shall first file application to do sowith the State Librarian, describing in such application the original purposes and contents of public andprovided further, that the sch approval of the State Auditor shall also be required with regard to the destruction of public records of afiscal or financial nature."
In 1946 this office issued Opinion No. O-7132 which stated that "the words 'cause to be bound' mean 'binding1 In the conventional sense, andwill not permit the substitution of mlcrofllmi.ng."

Following this opinion, in 1947 the Legislature enacted Article 5441a, and in 1959 Article 5441b wasadopted.

Section 2, Article 5441a. specifically includes newspapers acquired byany State department or institution within the term "public records" for the purposes of this Article.

Section 3of Article 544la provides that such records maybe destroyed when, In the opinion of the department head and the State Librarian, these records "have nofurther legal, administrative, or historical value." This section of the article does not change in anywaythe dut of the Librarian to "cause to be bound the newspapers, wich duty is ex-9 plicitlv set out in Section 3of Article 5441, but merely authorizes aprocedure for destruction of previously collected records whenthey are properly adjudged to be valueless. Of course, whenapublic record has been properly held to be valueless, its destruction maytake place, but without such a findin~g that the records are valueless Section 3,Article 5441a does not authorize destruction merely because amicrofilm copy of the record exists. Likewise this office cannot hold that an alternative method for preservation of records constitutes compliance with the statute where thenLegislature has clearly defined the procedure to be followed; and this would be true even where such analternative method might be technically superior to the procedure authorized by the Legislature. For this reason, this office sees noreason to overrule Opinion No. O-7132 issued in 1946. In answer toyour first question weare of the opinion that Section 3,Article 5441a, does not authorize the destruction of newspapers In print, purchased pursuant to Section 3, Article 5441, even though amicrofilm copy of the newspaper is to be preserved, and even if the consent of the State Auditor to the destruction of the newspapers be obtained unless such newspapers are adjudged to be valueless.Hon. DormanH.Winfrey, page 3

### (w-w-1&56)

With regard to your seconl fnqu5ry, Article 5441b provides:
"Art. 5441b. Disposition of valueless records

"Secticn 1. TheState Librarian of the State of Texas is hereby authorkeX3 to transfer, destroy or otherwise dispose of any records of the State of Texas consi. ned by morethan ten $10) lawto his custody that are years ?1 an,3wh:ch the State Librarian shall deternIne to bevakeless, or of nofurther use., to the Staz of %xas as official records. Provide 3, howeverpnone of m-h records shall be disposed of in any mannerunless the State Comptroller, the State Auditor an'5th&Attorney General of the State of Texas shall first have agreed with the State Librarian that the preservation of any such records are nolonger necessary as evidence andwill serve nouseful 2urpoae in the future efficient operation 0f -theState Gsverrment. All such records d!ispose,d of, ,a5agreed .upon, shall be generally listed andreferred to and such list shall be subscribed to by all of saf Cfffcials showing their consent to su:h dfs~os%tfoc.

"Sec. 2. Anysuch records which the Attorney General, State Comptroller, State Auditor andState Librarian, or anyone or more of themdeemnecessary tompreserve, maybe so preser.ved bymicrofilming such records andsuch microfilm copies shall thereupbn constitute original records for all legal purposes. Thereafter the orfginals of such records may be disposed of in such manner as such Officials may agree on; provided, however, that such microfilming shall be done only if funds are available for that purpose or are appropriated by the Legislature of the State of Texas for that purpose to cover the cost of such microfilming for the State of Texas. "Sec. 

### 3. Anysuch records held to be nolonger needed for the operation of the State Government or those replaced bymicrofilm copies may nevertheless be transferred to the Archfves Division of the Texas State Library if the State Librarian deems themto be of historical value.". .

Hon. DormanH.Wlnfrey, page 5 (WW-1456)

This article merely sets forth amethod bywhich destruction of valueless records maybe accomplished or, in the alternative, such records may be toreserved in microfilm andthe original records maybe destroyed after being kept for '10years. Under this article destruction may be accomplished whenapproval Is secured from the Attorney General, State Comptroller, State Auditor, andState Librarian.

Therefore, the answer toyour second question is in the affirmative. Thus, such destruction or preservation through the use of microfilming that you inquire about maybe accomplished under this statute by compliance therewith.

SUMMARY
Section 3,Article 5441a, does not authorize the destruction of newspapers in print, purchased pursuant to Section 3,Article 5441, even though amicrofilm copy of the newspaper is to be preserved and even if the consent of the State Auditor to the destruction of the newspapers is obtained, unless such newspapers are adjudged to be valueless. Article 544113authorizes the destruction of the newspapers which are over 10years old, if the procedures of the statute are complied with.
Yours very truly,

SS:wb:mkh
APPROVED: OPINIONCOMMITTEE
W.V. Geppert, Chairman Robert Lewis Frank Booth Fred D.Ward WILLWILSON neral of Texas By: Assistant

REVIEWED

FORTHEATTORNEY GENERAL BY: Leonard Passmore