### R-888

AUSTZN. TEXAS. PRICE DAN- 

### WAOAN DICKSON

r--o-a. -*--

November 20, 1947

Hon. Jesse James, State Treasurer, Austin,~Texas OpinionNo. V-.435

Re: Authority of the Treasury Department to microfilm and destroy Old Age Assistancewarrants,paying the expense thereof from its contingent expense funds.

Dear.Sir:..

.

Tour request for an opinionby this upon the above subjectmatter is as follows: department

nAt its regular session in 1947 the Legislature enacted House Bill 250, creating E Records AdministrationDivision in the State Library. This statute allows the microfilming and subsequentdestruction of public records deemed no longeruseful. However,,no funds were provided for carrying out the provisions of this act.

"Due to lack of space for filing purposes, this department desires to microfilm and destroy all Old Age Assistancewarrants paid by this officeprior to September'l, 

### 1942. Under the provisions of this and other statutes are we authorized to do this, paying the expenses thereof from our contingent expense funds? We;'qf course, intend to obtain the approval of the Librarian and the State Auditor. We have already obtained the approval of the Regional Director of the Social Security Administration.8
Section 1 of House Bill Non.250, 50th Legislature, General and Special Laws, 1947, page 945, authorizes the Texas Library and Historical Commission to establish and maintain in the State Library a Records.

Hon. Jesse James, Page 2 

### (V-435)

AdministrationDivision "which (1) shallmanage all publicrecords of the State with the consent and cooperationqf the heads of the variousdepartmentsand institutions izz

charge of such records~ and (2) shall also conduct e photographic laboratory for the purpose ofmaking photographs,micro-photographs,or reproductions on film, or to arrange for all or part of suchwork to be done by an establishedcommercial agencywhich meets the specificationsestablishedby this Article for the proper a~ccomplishment of the work

. . ett

3ection 1 of this Act furtherprovides that "the State Librarian is hereby,authorizedto make photographic reproductions for private and publicuse on the following basis: (1) For officialuse of departments and.institutionsno charge shall bemade; (2) for the officialuse of localunits of government charge shall be made on a cost~basis; ';(3) for copies of public records for private,usecharge shall be at a rateto~W+fixed by the State Librarian in keeping with standard commercial rates

. . .n

Section 2 of House Bill 250 @rovideethat "

.when any State officialhas haai'iphotographic ripGoductions.'+

. *made of any public"records

. . . inhis office, even though 'suchrecordsbe current, he may designate such photographicreproductionsas originalrecords for all legal purposes andmay thereupon transfer the recordswhich have been replacedby the photographicreproductions to the StateLibrarian, who shall receipt therefor. The StateLibrarianwith the consent of.the 3tate Auditormay dispose of transferred records by further transfer or by destruction "

. . . The provisions of Section 1 of this Act create a procedure by which the Texas Library and HistoricalCommissionmay undertake the work of microfilming department records for officialuse of departmentsat no charge to the department in question. It is regretable,

that no appropriationwas made to defray the expenses of operating this Records AdministrationDivision in the State Library, since the absence of an appropriationhas necessarilyprevented the Texas Library and Historical Commission from carrying Section 1 of this Act into operationat this time. Since theHon. Jesse James, Page 

### 3 (V435)

item of contingent expense in the appropriation for the State Treasury Department is specificallyfor the payment of contingent expenses of that department, this State Treasury Department contingentexpense appropriation would not be transferableto the Texas Library and Historical Commission for the purpose of enabling the Records AdministrationDivision in the State Library to undertake the reproductionwork you have in mind.

Section 2 of this Act specifiesthe action which may be taken by a State officialafter that official "has had photographicreproductionsmade of any public records inhis office". To specify the action which any State officialmight take in connectionwith photographic reproductionswhich he has had made would be useless if State officials lacked the authority to make such reproductions in the first instance. It must follow that this legislative expression of the action which State officialsmay take with reproductions they have had made is a legislativeexpression that the authority to make such reproductions is vested in the heads of State departments and institutions.

Since the State Treasurerhas authority to have photographic reproductions ofhis recordsmade without reference to the authority of the Records Administration Division in the State Library, it is our opinion the contingent expense appropriation of the State Treasury Departmentmay be utilized by the State Treasurer to defray the cost of having these records microfilmed.

The State Librarian would not be authorized to enter into.a contract to do this reproductionwork for the State Treasury Department at commercial rates, due to the express provision in H. B. 250 that its work for such Departments shallbe without charge.

In the previous opinion of this office numbered O-2241, a copy of which is enclosed for your reference, it was held that a State agency could not destroy its records in absence of a statute authorizing such destruction. We expressly adhere to that previous opinion. However, while the State Treasury Department is not authorized to destroy these records following their photographic reproduction on microfilm, Section 2 of this House Bill 

### 250specifies the action which the State Treasurermay take with these. .

Hon. Jesse JamesjPage 4 

### (V-435)

records, The State Treasurermay designatethe photographic reproductions as original records for all legal purposes,and may thereupon transfer the recordswhich have been replaced by the photographicreproductionsto the State Librarian,who shall receipt therefor.

The State Librarian with the consent of the State Auditor,would be autho&ized to further transfer these records or to destroy these records,although the State Treasurer could not undertake such destruction at his own instance,

SUMKiRY

The State Treasury Department is authorized to have photographic reproductionsof its records prepared, defraying the cost of this work from the contingent expense appropriationof the.State Treasury Department.

The State Treasury Department is not authorized to destroy,its original records following their photographic reproductions,but it is authorized to transfer the recordswhich have been replaced by photographicreproductions to the State Librarian. The State Librarian is authorized to destroy or further transfer such records.

Yours very truly,

ATTORNEY GENERAL OF TEXAS

Bv&B&

DBI:bb Enclosure David B. Irons AdministrativeAssistant