Hon. Dorman H. 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 in print, purchased pursuant to Article 

5441, Vernon's Civil Statutes, 

if a microfilm copy of the 

newspapers be preserved and 

the State Auditor consents 

to the destruction of the 

Dear Mr. Winfrey: same. 

You have requested the opinion of the Attorney General 

with regard to the following questions: 

"1. Does Article 5441a, Section 3 authorize the destruction of newspa ers in print, purchased pursuant to Article 54 E 1, Section 3, If 

a microfilm 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&41b R.C.S. 0 , 

authorize the destruction of the newspapers which 

are over 10 years 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 in housing the newspapers" and 

that the cost for binding newspapers now on hand would 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. He shall endeavor to collect all manuscript records reiating to the history of Texas 
Hon. Dorman H. Winfrey, page 2 (W-1456) 

In the hands of private Individuals, and where 

the originals cannot be obtained he shall endeavor 

to procure authenticated copies. He shall be authorized to expend the money appropriated for the 

purchase of books relating to Texas, and he shall 

seek diligently to procure a copy of every book,, 

pamphlet, map or other printed matter giving valuable Information concerning this State. He shall 

collect portraits of photographs of as many of the 

prominent men of Texas as poesible. He shall endeavor to complete the files of the early Texas 

newspapers in the State Library; and he,shall cause 

to be bound the current files of not less than ten 

of th leading newspapers of the State and th 

rent Files of not 1 

e curess than four leading newspapers 

of other states, and of as many county papers, professional journals, denominational papers, agricultural papers, trade journals and other publications 

of this State as seem necessary to preserve In the. 

State Library an accurate record of the history of 

Texas. ” (Emphasis ours) 

“Art. $&la. Records Administration Division 

II 

. . . 

“‘Public records’ shall mean originals 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 p blic records in his 

custody which, in his opinlin, have no further 

legal, administrative or historical value, provided, 
. . 

Hon. Dorman H. Wlnfrey, page 3 (WW-1456) 

however, that he shall first file application to do 

so with the State Librarian, describing in such application the original purposes and contents of 

public sch and provided further, that the 

approval of the State Auditor shall also be required 

with regard to the destruction of public records of 

a fiscal 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, and will not permit the substitution of 

mlcrofllmi.ng." 

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

Section 2, Article 5441a. specifically includes newspapers acquired by any State department or institution within 

the term "public records" for the purposes of this Article. 

Section 3 of Article 544la provides that such records may be destroyed when, In the opinion of the department 

head and the State Librarian, these records "have no further 

legal, administrative, or historical value." This section of 

the article does not change in any way the dut of the Librarian to "cause to be bound the newspapers, -9 w ich duty is explicitlv set out in Section 3 of Article 5441, but merely authorizes a procedure for destruction of previously collected 

records when they are properly adjudged to be valueless. Of 

course, when a public record has been properly held to be 

valueless, its destruction may take place, but without such a 

findin~g that the records are valueless Section 3, Article 5441a 

does not authorize destruction merely because a microfilm copy 

of the record exists. Likewise this office cannot hold that an 

alternative method for preservation of records constitutes compliance with the statute where then Legislature has clearly defined the procedure to be followed; and this would be true even 

where such an alternative method might be technically superior 

to the procedure authorized by the Legislature. For this reason, 

this office sees no reason to overrule Opinion No. O-7132 issued 

in 1946. In answer to your first question we are 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 a microfilm 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. Dorman H. Winfrey, page 3 (w-w-1&56) 

With regard to your seconl fnqu5ry, Article 5441b 

provides: 

"Art. 5441b. Disposition of valueless records 

"Secticn 1. The State 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 

more than ten $ 10) 

law to his custody that are 

years ?1 an,3 wh:ch the State 

Librarian shall deternIne to be vakeless, or of 

no further use., to the Staz of %xas as official 

records. Provide 3, however p none of m-h records 

shall be disposed of in any manner unless the State 

Comptroller, the State Auditor an'5 th& Attorney General of the State of Texas shall first have agreed 

with the State Librarian that the preservation of 

any such records are no longer necessary as evidence 

and will serve no useful 2urpoae in the future efficient operation 0 f -the State Gsverrment. All 

such records d!ispose,d of, ,a5 agreed .upon, shall 

be generally listed and referred to and such list 

shall be subscribed to by all of saf Cfffcials 

showing their consent to su:h dfs~os%tfoc. 

"Sec. 2. Any such records which the Attorney 

General, State Comptroller, State Auditor and State 

Librarian, or any one or more of them deem necessary 

tom preserve, may be so preser.ved by microfilming 

such records and such 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. Any such records held to be no longer 

needed for the operation of the State Government or 

those replaced by microfilm copies may nevertheless 

be transferred to the Archfves Division of the Texas 

State Library if the State Librarian deems them to 

be of historical value." 
. . 

Hon. Dorman H. Wlnfrey, page 5 (WW-1456) 

This article merely sets forth a method by which 

destruction of valueless records may be accomplished or, in 

the alternative, such records may be toreserved in microfilm 

and the original records may be destroyed after being kept 

for '10 years. Under this article destruction may be accomplished when approval Is secured from the Attorney General, 

State Comptroller, State Auditor, and State Librarian. 

Therefore, the answer to your second question is in 

the affirmative. Thus, such destruction or preservation through 

the use of microfilming that you inquire about may be 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 a microfilm 

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 544113 authorizes the destruction of the 

newspapers which are over 10 years old, if the procedures of the statute are complied with. 

Yours very truly, 

SS:wb:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Robert Lewis 

Frank Booth 

Fred D. Ward 

WILL WILSON 

neral of Texas 

By: 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore