                                                          R-888




                                 AUSTZN.     TEXAS.
PRICE     DAN-                                                    WAOAN    DICKSON
r--o-a.                                                             -*--




                                   November 20, 1947

            Hon. Jesse James,              Opinion No. V-.435
            State Treasurer,
            Austin,~Texas                  Re:   Authority of the Treas-
                                                 ury Department to micro-
                                                 film and destroy Old Age
                                                 Assistance warrants,pay-
                                                 ing the expense thereof
                                                 from its contingent ex-
                                                 pense funds.
            Dear.Sir:..                                    .

                      Tour request for an opinion by this department
            upon the above subject matter is as follows:
                 nAt its regular session in 1947 the Legis-
                 lature enacted House Bill 250, creating E
                 Records Administration Division in the
                 State Library. This statute allows the
                 microfilming and subsequent destruction of
                 public records deemed no longer useful.
                 However,,no funds were provided for carry-
                 ing out the provisions of this act.
                 "Due to lack of space for filing purposes,
                 this department desires to microfilm and
                 destroy all Old Age Assistance warrants
                 paid by this office prior 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 Li-
                 brarian and the State Auditor. We have
                 already obtained the approval of the Re-
                 gional Director of the Social Security Ad-
                 ministration.8
                      Section 1 of House Bill Non.250, 50th Legisla-
            ture, General and Special Laws, 1947, page 945, author-
            izes the Texas Library and Historical Commission to
            establish and maintain in the State Library a Records
.



    Hon. Jesse James, Page 2   (V-435)


    Administration Division "which (1) shall manage all
    public records of the State with the consent and co-
    operationqf the heads of the various departments and
    institutions izzcharge of such records~and (2) shall
    also conduct e photographic laboratory for the purpose
    of making photographs, micro-photographs, or repro-
    ductions on film, or to arrange for all or part of
    such work to be done by an established commercial
    agency which meets the specifications established by
    this Article for the proper a~ccomplishmentof the
    work . . ett
              3ection 1 of this Act further provides that
    "the State Librarian is hereby,authorized to make pho-
    tographic reproductions for private and public use on
    the following basis: (1) For official use of depart-
    ments and.institutions no charge shall be made; (2)
    for the official use of local units of government
    charge shall be made on a cost~basis; ';(3)for copies
    of public records for private,use charge shall be at
    a rate to~W+fixed by the State Librarian in keeping
    with standard commercial rates . . .n
              Section 2 of House Bill 250 @rovideethat
    "    . when any State official has haai'iphotographic
    ripGoductions.'+. * made of any public"records . . .
    in his office, even though 'such records be current,
    he may designate such photographic reproductions as
    original records for all legal purposes and may there-
    upon transfer the records which have been replaced by
    the photographicreproductions to the State Librarian,
    who shall receipt therefor. The State Librarian with
    the consent of.the 3tate Auditor may dispose of trans-
    ferred records by further transfer or by destruction
    . . ."
              The provisions of Section 1 of this Act cre-
    ate a procedure by which the Texas Library and Histor-
    ical Commission may undertake the work of microfilming
    department records for official use of departments at
    no charge to the department in question. It is re-
    gretable,that no appropriation was made to defray the
    expenses of operating this Records Administration Di-
    vision in the State Library, since the absence of an
    appropriation has necessarily prevented the Texas Li-
    brary and Historical Commission from carrying Section
    1 of this Act into operation at this time. Since the
Hon. Jesse James, Page 3   (V435)


item of contingent expense in the appropriation for the
State Treasury Department is specifically for the pay-
ment of contingent expenses of that department, this
State Treasury Department contingent expense appropri-
ation would not be transferable to the Texas Library
and Historical Commission for the purpose of enabling
the Records Administration Division in the State Libra-
ry to undertake the reproduction work you have in mind.
          Section 2 of this Act specifies the action
which may be taken by a State official after that of-
ficial "has had photographic reproductions made of any
public records in his office". To specify the action
which any State official might take in connection with
photographic reproductions which 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 ac-
tion which State officials may take with reproductions
they have had made is a legislative expression that
the authority to make such reproductions is vested in
the heads of State departments and institutions.
          Since the State Treasurer has authority to
have photographic reproductions of his records made
without reference to the authority of the Records Ad-
ministration Division in the State Library, it is our
opinion the contingent expense appropriation of the
State Treasury Department may 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 reproduction work
for the State Treasury Department at commercial rates,
due to the express provision in H. B. 250 that its
work for such Departments shall be without charge.
          In the previous opinion of this office num-
bered 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 author-
izing 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 micro-
film, Section 2 of this House Bill 250 specifies the
action which the State Treasurer may take with these
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        Hon. Jesse JamesjPage   4     (V-435)


        records, The State Treasurer may designate the photo-
        graphic reproductions as original records for all legal
        purposes, and may thereupon transfer the records which
        have been replaced by the photographic reproductions to
        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 reproductions of its rec-
             ords prepared, defraying the cost of this work
             from the contingent expense appropriation of
             the.State Treasury Department.
                 The State Treasury Department is not au-
             thorized to destroy,its original records fol-
             lowing their photographic reproductions, but it
             is authorized to transfer the records which
             have been replaced by photographic reproduc-
             tions to the State Librarian. The State Libra-
             rian is authorized to destroy or further trans-
             fer such records.
                                          Yours very truly,
                                      ATTORNEY GENERAL OF TEXAS


                                       Bv&B&
                                            David B. Irons
                                       Administrative Assistant
        DBI:bb
        Enclosure
