                              February      11.   1975


The Honorable Dorman H. Winfrey                    Opinion No.   H-   523
Director and Librarian,    Texas State
   Library,   Texas Archives  and Library          Re: Questions   regarding use
   Building                                        and disposition  of county
P. 0. Box 12927, Capitol Station                   records.
Austin,   Texas   78711

Dear Mr.   Winfrey:

        You have requested our opinion regarding the authority          of the
State Librarian and the various counties to destroy or transfer         records
which are no longer in use.   Specifically, your questions are:

                1. What records may counties destroy or otherwise
                dispose of when ‘they are no longer needed?

                2. Can records be transferred        or loaned to private
                persons or privately supported       institutions, includ-
                ing private attorneys?

                3. Does the State Library have the authority to destroy
                records of counties and other local units of government
                subsequent to their transfer to the Library under article
                5442b?

         The Legislature   has established  means by which the various political
subdivisions  of the State may dispose of non-current   records.   Prior to,
1971, records in the custody of both county and district clerks,   as well as
county records in general,    were governed by article 657413, V. T. C. S.
Article 194la, V. T. C. S., enacted in 1971 and made applicable to all records
in the custody of a county clerk,    county recorder, and clerk of a county
court repealed any law in conflict to the extent of the conflict.   Disposition




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The Honorable     Dorman   H.   Winfrey    page 2   (H-523)




of such records   therefore,    is now controlled   by article   1941a.

          Article 1941a authorizes    a county clerk to microfilm     all records
permitted or required to be filed and registered        or filed and recorded
in his office.     Section 6(b) requires that the clerk, after microfilming
a record, return it to the party who filed it, except for records relating
to court matters and proceedings.         After the microfilm    of a particular
court record has been satisfactorily       used by the public for a minimum
of five years,     the clerk may issue a certificate   to that effect to the
commissioners         court, and the court may then authorize disposal of the
original.     Section 6(c), (d).

         Article 1899a was also enacted in 1971 to govern disposition         of
certain records in the custody of a district clerk.         The statute authorizes
the district clerk to microfilm     “all records,   acts, proceedings     held,
minutes of the court, and all registers,       records and instruments”       for
which the district clerk is responsible      by law.   After one year from the
time at which a judgment has become final and the time for seeking
appellate relief has expired,     or a mandate which is finally decisive has
been issued,    the district clerk, after certification    to the State Librarian,
may destroy the original records pertaining to a particular          legal proceeding.
Sec. 4.     However,    article 1899a does not provide for the destruction       of
any records other than those pertaining to a hearing,          proceeding or trial.

         Disposition   of records of the district clerk other than those
addressed    in section 4 of article 1899a is still controlled by article 6574b,
since article 1899a does not contain an express repealer.           Implied
repeals are not favored,      and if statutes may be harmonized      and effect
given to both, there is no repeal by implication.          Gordon v. Lake, 356
S. W. 2d 138 (Tex. Sup. 1962); Conley v. Daughters of Republic,           156 S. W.
197 (Tex. Sup. 1913).     Since article 1899a does not purport to deal with
the entire subject of the disposition      of records,   it may be harmonized
with article 6574b.     Section 1 of article 1899a requires the microfilming
plan to provide for the “maintenance,         retention,  security, and retrieval
of all records so microfilmed       or otherwise duplicated. ” Section 2(l)
requires all original instruments,       records and minutes to be released
into the file system,    and section 2(5) requires provision for “permanent
retention of the records and . . . security . . . to guard against physical




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The Honorable    Dorman   H.   Winfrey     page 3   (H-523)




loss,  alteration,   and deterioration .‘I However,it   is our opinion that these
sections do not prohibit the destruction      of records,   but instead establish
requirements     for a prospective   microfilming    plan.  To require a plan
for the permanent retention of original records is not to require all
records to be so retained.      Accordingly,    once the procedures    required by
article 1899a are satisfied,    the original records may be disposed of
pursuant to article 6574b.

         Article  6574b thus provides for the disposition of all district clerk
records whose disposal is not governed by article 1899a, as well as all
other county records not addressed       in a specific statute.  Article 6574b
authorizes    a commissioners    court to make photographic     duplicates of
“all public records. ” Sec. 1. After duplicates are “made,          certified and
placed, ‘I the commissioners      court may order destruction     of the originals,
provided that the records are at least five years old and provided further
that’notice of the proposed destruction has been given to the State Librarian.
Sections 4 and 5 of article 6574b specifically      preclude the “destruction     or
disposition   of any deed record,   deed of trust record,    mechanic’s    lien
record or any minute book of any Court or any minute book.of any political
subdivision of Texas, ” Those records which have been microfilmed               but
the destruction    of which is not permitted by article 657413 may be stored in
“any place located in the County seat, under such terms and conditions
deemed sufficient for their safeguard as may be set by the clerk and the
Commissioners       Court. ” Attorney General Opinion WW-1399         (1962).

          A few statutes provide for the destruction of records without
requiring any duplication thereof.         Article 1651, V. T. C. S., authorizes
a county auditor to destroy,       after ten years from their original date and
with the consent of the commissioners           court, all records other than bound
volumes and ledgers which are in the custody and control of his office.
Article 6581a, V. T. C. S., applicable to counties having a population
greater than 800,000,      directs the destruction     of “all applications  for beer
licenses,    office copies of notices issued on such applications,        and copies
of such beer licenses     on file.    . . at any time after the expiration of one (1)
year from the expiration date of such license. ”




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The Honorable   Dorman   H.   Winfrey    page 4   (H-523)




        Your   second question concerns the transfer of records to private
persons or to privately supported institutions.    We have found no authority
preventing the transfer to private parties of non-current    public records
which are subject to destruction.    We believe,  however,   that the more
appropriate   procedure would be first to offer the records to the State
Library pursuant to article 5439, V. T. C. S. If the records are not con-
fidential in nature (Attorney General Opinion H-115 (1973) ), it is our opinion
that they may be transferred   to a private party or privately   supported
institution,  such as a museum,   provided that transfer is effected after
the date upon which the statute first makes the records eligible for des-
truction.

         Records which are not subject to destruction  may not be transferred
to a private party.   Collins v. Box, 40 Tex. 191 (Tex. Sup. 1874); Snider v.
Methvin,    60 Tex. 487 (Tex. Sup.    1883). There is no authority for “loan-
ing” records to private attorneys,   but they may inspect court papers and
records.    Rule 76, Texas Rules of Civil Procedure.    Any official records
not in current use may be turned over to the State Librarian.    Article
5439, V. T. C. S.

        Your final question concerns the authority     of the State Library   to
destroy records transferred   into its custody.

        Article  5439a, V. T. C. S., authorizes  the State Librarian with the
consent of the StateAuditor to destroy original public records transferred
to him after reproduction by any State official.    Article 5441b, V. T. C. S.,
authorizes   the State Librarian to:

                . . . transfer,  destroy or otherwise dispose
                of any records of the State of Texas consigned
                by law to his custody that are more than ten (10)
                years old and which the State Librarian     shall
                determine to be valueless,    or of no further use,
                to the State of Texas as official records.

The concurrence    of the State Comptroller, the State Auditor and the Attorney
General is necessary.     We have found no authority defining “state records”
as used in article 544113. In our opinion, any public record properly in the




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The Honorable   Dorman    H.   Winfrey        page 5   (H-523)




custody   of ,the State Librarian is a “state record” for purposes of that
statute.   We therefore construe article 5441b to authorize the State
Librarian    to destroy county records,    provided the terms of article
544133 are satisfied.    The better practice would be to notify the county
beforehand,     although this is not required under 544113. The State
Librarian is precluded from destroying        “historical relics, mementos,
antiques,   or works of art connected with and relating to the history of
Texas. ”

                                    SUMMARY

                    County Clerks,   County Recorders,    and clerks
                of county courts may dispose of records pursuant
                to article 1941a.  District Clerks may do so pursuant
                to articles 1899a and 6574b.    Other county officers
                may make such disposition    pursuant to article 657413.

                    Records which are not confidential in nature and
                are subject to destruction may be transferred  to a
                private party.

                    The State Librarian has general authority to
                dispose of records which are valueless  as official
                records.




                                                       JOHN L. HILL
                                                       Attorney General   of Texas



                  ALL,   First   Assistant



C. ROBERT HEATH,         Chairman
Opinion Committee




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