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,    pur-
                                                       chased 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 author-
       ize the destruction      of newspa ers in print,      pur-
       chased pursuant to Article       54 E1, 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 ap-
proximately   $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 manu-
       script     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 au-
       thorized     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     valu-
       able Information        concerning      this State.      He shall
       collect     portraits    of photographs       of as many of the
       prominent men of Texas as poesible.                He shall    en-
       deavor 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 e cur-
       rent Files      of not 1 ess than four leading           newspapers
       of other states,        and of as many county papers,           pro-
       fessional     journals,     denominational       papers,   agricul-
       tural 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 photo-
       graphic    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 lnati-
       tutiona 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 epartment or in-
       EEtution     may d eatroy   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 ap-
                plication  the original   purposes     and contents     of
                such
                public                  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   en-
        acted    Article    5441a, and in 1959 Article  5441b was adopted.

                   Section   2, Article     5441a. specifically     includes    news-
        papers 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 rec-
    ords 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 Librar-
    ian to "cause to be bound              the newspapers,      w ich duty is ex-
                                                                -9
    plicitlv    set out in Section          3 of Article     5441, but merely au-
    thorizes    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      com-
    pliance    with the statute         where then Legislature        has clearly      de-
    fined 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 law to his custody that are
      more than ten $ 10) 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            Gen-
      eral 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        ef-
      ficient    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   there-
     upbn constitute       original    records   for all legal    pur-
     poses.     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 accom-
        plished    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 accom-
        plished   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 pro-
              cedures   of the statute    are complied with.

                                                  Yours   very   truly,

                                                  WILL WILSON
                                                             neral        of   Texas

                                            By:

        SS:wb:mkh                                 Assistant

        APPROVED:
        OPINION COMMITTEE

        W. V. Geppert,    Chairman
        Robert Lewis
        Frank Booth
        Fred D. Ward

        REVIEWEDFOR THE ATTORNEYGENERAL
        BY: Leonard Passmore
