The Honorable E. L. Short           Opinion No. H- 852
Chairman
Committee on Intergovernmental      Re: Length of time required
     Affairs                        before an incorporated city
House of Representatives            may destroy the original
Austin, Texas 78701                 paper public record after
                                    it has been microfilmed.
Dear Mr. Short:
     you ask when original paper public documents may be
destroyed by a city after being microfilmed. In addition,
you ask when the microfilm records may be destroyed.
     From 1947 to 1971, the authority of.political subdivisions,
including cities, to duplicate and dispose of original records
generally was regulated by article 657413,V.T.C.S., which
specifically provided that:
         Whenever photographic duplicates of public
         records are so made . . . the original
         records may be . . . destroyed or otherwise
         disposed of, provided, however, that no
         original record shall be destroyed or other-
         wise disposed of unless or until the time
         for filing legal proceedings based on such
         record shall have elapsed, and, in no event,
         shall any original public record be
         destroyed or otherwise disposed of until
         said public record is at least fiver
         TEFS old . . . . -sasis      added).-
         !J&4Y--




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The Honorable E. L. Short - page 2 (H-852)


In 1971, article 1941(a), V.T.C.S., was enacted for counties,
repealing article 6574b insofar as in conflict, and providing
that counties could dispose of original records only after
the microfilm copy had been used for five years.
     In 1975, article 6574~~ V.T.C.S., was enacted for in-
corporated cities. It repealed article 6574b insofar as the
two conflicted and provided, in section 3, that cities could
enact ordinances for disposal of their records:
         Original public records which are micro-
         filmed in compliance with an ordinance
         authorized by this Act may be destroyed
         after five         Original public records
         wm    -F='
               are no microfilmed in compliance
         with an ordinance authorized by this Act
         or are determined worthless by the govern-
         ing body of an incorporated city may be
         destroyed as directed by the governing
         body. Notice of proposed destruction or
         disposition of original public records
         shall first be given to the State Librarian
         or State Archivist, and if such records
         are, in his opinion, needed for the State
         Library, the records shall be transferred
         thereto. (Emphasis added).
Since your question is directed only to those paper documents
that are microfilmed, we do not address the question of a
governing body's authority to destroy records that are not
microfilmed. In our opinion, it is clear that public records
which are microfilmed may be destroyed only "after five years."
     However, you further question whether "after five years"
in article 6574~ means five years after the document came
into existence (i.e., "five years old" as previously provided
in article 65746)    five years after the document is micro-
filmed (i.e., as provided for counties in article 1941(a)).
Article-c     is ambiguous in this regard, and it is appro-
priate in determining legislative intent to refer to other
statutes. includinc revealed ones. relatina to the same
subject matter.
51. In our opinion,
&    materia with article 6574~ is its predecessor for -




                         p. 3596
:    -




    The Honorable E. L. Short - page 3 (H-852)


    incorporated citie6, article 6574b, which has been repealed
    only insofar as they conflict. See Attorney General Opinion
    H-523 (1975). Therefore, an ord=nce    passed under article
    6574~ may provide that, after microfilming, original paper
    documents are to be destroyed'once they are at least five
    years old. The ordinance similarly may provide for the
    destruction of documents already five years old at the time
    of microfilming. In neither instance, however, may such
    destruction occur until after the State Librarian or State
    Archivist has had an opportunity to order the records trans-
    ferred to the State Library as provided in article 6574~.
         your last question concerns when the microfilm record
    may be destroyed. In section 2 of article 6574c, such micro-
    film records are defined as "original public records." It is
    possible therefore to construe section3 of the article to
    allow destruction of microfilm copies once they are five years
    old. In our opinion, such a result would be contrary to the
    apparent legislative intent evidenced elsewhere in the article,
    such as in section 1 of article 6574c, which requires that the
    microfilm process result in "permanent" copies,. In addition,
    such a result would be contrary to past legislative policy
    in favor of maintaining public records, and to:the ,historical
    purpose of microfilm copies as permitting a permanent reten-
    tion of public documents with a minimum use of space. See
    s    V.T.C.S. arts. 1941a, 1899, 6574b; Attorney General
    Opinions WW-1456 (19621, WW-793 (1960) and V-1079 (1950).
    We believe the section 2 description of microfilm records as
    original public records was intended only for purposes of
    the use of such records in court as provided in section 2 of
    article 6574~ and not for purposes of destruction as provided
    in section 3.
                         SUMMARY
              A city ordinance passed pursuant to article
              6574c, V.T.C.S., may provide that, after
              microfilming, original public records may
              be destroyed when they are at least five




                               p. 3597
The Honorable E. L. Short - page 4 (H-852)


            years old. Article 6574~ does not provide
            for the destruction of the microfilm
            records after five years.

                                ery truly yours,




APPROVED:




Opinion Committee
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