             TEE    ATTORNEY    GENERAL
                       OF TEXAS

                       February 2, 1989




Honorable William D. Gooch     Opinion No: ~~-1013
Director and Librarian
Texas State Library            Re: Whether records created
Lorenzo De Zavala State        and/or received by the Gover-
 Archives and Library Bldg.    nor's Office are public re-
P.O. Box 12927                 cords within the meaning   of
Austin, Texas 78711            the Open Records Act, article
                               6252-17a, V.T.C.S.,   and of
                               section 441.031(l)(2)(5)   of
                               the Texas Government    Code.
                               (RQ-1579)

Dear Mr. Gooch:

     You ask several questions about the authority of the
Texas State Library and Archives Commission     over records
generated or received by the governor's office in conducting
its business.   You inform us that Ima number of Texas
governors, following an informal and unwritten     tradition,
have removed from state custody all or a very large part of
the records created during their administration."   You ask:

        1. Are the records which are created      and
        received by the Office of the Governor     of
        Texas in the course of carrying out the
        statutorily assigned duties of that office
        considered  public records, as defined     in
        V.T.C.A.,  Government    Code, Chapter   441,
        Section 441.031(l)(2)(5)   and V.A.C.S., Art.
        6252-17a, Sections 2(3) and 3?

        2. If the records of the Governor's     Office
        are public governmental    records,  is their
        removal from the custody of the state at the
        end   of   a   gubernatorial    administration
        considered in violation of Texas Penal Code,
        Chapter 37, Section   10, or V.A.C.S.,    Art.
        6252-17a, Sec. [12]?

        3. If the records of the Governor's   Office
        are public governmental records, what legal




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or. William D. Gooch - Page 2     (JM-1013)



        action(s) can the Texas     State Library, as the
        agency responsible  for      the management   and
        preservation of public      records, initi;E;ori;
        obtain custody of any       such public
        that have been removed      from the custody of
        the state?

     Chapter 441 of the Texas Government Code governs, among
other things,   the   Texas State    Library  and   Archives
Commission (the commission)   and the preservation   of the
state's public  records. Sections   441.001 through  441.016
set out the structure and general powers and duties of the
commission.  Sections  441.031 through 441.039 govern the
retention of public records. your first question is whether
records created  or received by the governor's    office   in
carrying out its statutory   duties are subject to chapter
441, specifically to section 441.031(5).

     Section   441.031(5)   of     the     Texas   Government   Code
provides:

        *Public record* means a document,         book,
        paper, photograph, sound recording, or other
        material,   regardless   of physical   form or
        characteristic, made or received accordina to
        law or owce        or
                            . .rn connection with the
        transaction of officral businea . The term
        does not include library or museum material
        made or acquired and preserved     solely   for
        reference or exhibition purposes,     an extra
        copy of a      document preserved    only   for
        convenience   of reference,   or a stock of
        publications   or    of processed    documents.
        (Emphasis added.)

Records received  or created by the governor*8   office   in
carrying out its statutory duties clearly fall within   this
definition.

     You also ask whether   the records of the governor's
office constitute public records subject to the Texas Open
Records Act, article 6252-17a, V.T.C.S. Section 2(2) of the
Open Records Act provides:

        *Public records' means the portion      of all
        documents, writings,    letters, memoranda, or
        other written, printed,     tw=d , copied, or
        developed   materials   which contains nublic
        information.    (Emphasis added.)




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Mr. william    D.    Gooch - Page 3 (JM-1013)




Section 3(a) provides:

        All information     collected,  assembled,    or
        maintained by governmental bodies pursuant to
        law or ordinance    or in connection with the
        transaction of official business     is public
        information   and available to the        public
        during    normal    business   hours   of    any
        governmental     body,   with   the   following
        exceptions   only   [followed by 22 specific
        exceptions].

Records received or created by the governor's     office   in
carrying out its statutory duties are subject to the Open
Records Act and may be withheld from the public only if one
of the act's specific exceptions protects   them. Si2s Open
Records Decision No. 116     (1975); see also Open Records
Decision Nos. 241 (1980); 212 (1978); 177 (1977).    Section
5(a) of the act requires the custodian to preserve   records
Subject to the act.  See also V.T.C.S. art. 6252-17a,    8 12
(criminal penalty for removal of public records).

     Your second question is whether the removal of public
records from the custody of the state at the end of a
gubernational administration violates  chapter  37 of the
Texas Penal Code. Section 37.10 of the Penal Code provides:

        (a)         A person commits an offense if he:

              (1)   knowingly makes a false entry in, or
              false alteration    of,   a   governmental
              record:

              (2)   makes, presents, or uses any record,
              document, or thing with knowledge of its
              falsity and with intent that it be taken
              as a genuine governmental record; or

              (3)                    .      .
              removes. or otherwise lmoalrs   the   veritv,
              leaibilitv.   or    avabbilitv        of    a


        (b)   It is an exception to the application
        of Subsection (a)(3) of this section that the
        governmental record is destroyed pursuant  to
        legal authorization.

        (cl   An offense under this section     is a
        Class A misdemeanor unless the actorIs intent




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Mr. William D. Gooch - Page 4    (JM-1013)




        is to defraud or harm another, in which event
        the offense is a felony of the third degree.
        (Emphasis added.)

     Section  37.01(1)(A)   of   the Penal    Code   defines
"governmental  record" to mean anything     "belonging   to,
received by or kept by government for information."  Records
received or created by the governor#s office in carrying out
its statutory  duties are government    records within   the
meaning of section 37.01(1)(A).

     Whether the removal of specific gubernatorial    records
from the custody of the state at the end of a gubernatorial
administration   constitutes    a   violation  of     section
37.10(a)(3) depends on the facts surrounding the removal   in
question and on whether any other law in effect at the time
of removal authorized the removal. Violation      of section
37.10(a)(3) requires proof of an intentional removal that
would impair the availability   of the record. Violation   of
section 37.10(a)(3) also requires proof of a culpable   state
of mind -- an intent-        act. The legislature    did not
intend our opinion process to resolve disputed questions   of
fact.

     Similar considerations apply to a violation of section
12 of the Texas Open Records Act. A violation of section 12
requires proof of the willful, unauthorized      removal of
public records. $&9 Attorney General Opinion H-808   (1976).
Violation of the act's criminal sanctions    depends on the
facts in a given case. $&3 Attorney General Opinion JW-265
(1984). As indicated, the opinion process was not intended
to resolve disputed questions of fact.

     your final question     relates to the     commission's
remedies to obtain custody of public records that have been
removed from the commission's custody or from the custody of
the state.   Section 441.002(g)(E)  of the Government   Code
provides that the commission shall

        demand and receive  from the officer of the
        state department in charge of it, any book,
        map, paper, manuscript, document, memoranda,
        or data relating to the history of Texas not
        connected with or necessary   to the current
        duties of the officer.

This provision  grants the commission authority to demand
physical custody of Texas public records that are "not
connected with or necessary to the current duties of the
officer."




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Mr. William D. Gooch - Page 5    (JM-1013)




     Section 441.010(d) of the Government Code provides:

        A state, county, or other official lazy turn
        over to the state library for permanent
        preservation in the library an official book,
        record, document, original paper, map, chart,
        newspaper   file, or printed book
                                    ial's offi $-vt
        director   and   librarian shall     give*  the
        official a receipt for an item turned over
        under this subsection.    (Emphasis added.)

This provision gives state officials discretion to determine
when their records are in "current use." If their records
are in current use, state officials have no obligation     to
submit public records to the commission.       In light of
section 441.002(g)(E)   and the overall purpose of chapter
441, however,  we do   not  believe that section  441.010(d)
grants state officials   the authority to refuse to give to
the commission public records that are not in current use.

     If records are not in current use, the commission    must
classify the records either as permanent      or subject to
destruction.   Records to be designated     permanent   public
records must be provided to the commission       pursuant   to
section 441.002(g)(S).  Permanent records, records that are
not subject to destruction, cannot, as a general rule, be
transferred out of the custody of the state of Texas.      See
Attorney   General Opinion R-523    (1975).   Public records
cannot be destroyed or classified as subject to destruction
without   the approval of the director of the          records
management   division  and   the   librarian.     Gov .   Code
5 441.035(d).   Unless records subject to destruction      are
confidential, they may be transferred out of the custody of
the state once they have been classified by the director and
the librarian   as subject to destruction.      $&$ Attorney
General Opinion R-523 (1975).

     The Government Code presumes that government      officials
will cooperate    with regard      to the     disposition    and
classification  of public     records.     Section    441.032(b)
provides  that the records management        division   of   the
commission shall "manage all public records of the state
with the cooperation of the heads of the various departments
or institutions  in charge of records."        Section   441.034
provides that the records management division shall,       "with
the cooperation    of   the    heads    of    departments    and
institutions," survey, index,  and  classify  public  records.




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Mr. William D. Gooch - Page 6     (JM-1013)




     As indicated,   section 441.002(g)(S)    authorizes   th;
commission to demand custody of public records that are
in current use. Section 441.002(i) provides:

        If there is a disagreement as to the proper
        custody of a book, map, paper, manuscript,
        document,   memorandum,        data    under
        Subsection (g)(S), the attogey general shall
        decide proper custody.

Proper custody of specific records depends on the facts of a
given case and on whether   any other statutes address   the
disposition of the specific records at issue.

                       SUMMARY
             Records   created or received by     the
        governor8s   office   in carrying   out   its
        statutory duties fall within the definition
        of wpublfc records" in section 441.031(5)  of
        the Texas Government Code and the definition
        of "public records'   in section 2(2) of the
        Texas Open Records Act, article     6252-17a,
        V.T.C.S.

             Such records also constitute      "govern-
        mental records" within the meaning of sec-
        tions 37.01(1)(A)    and 3;;:Ea)(3)     of the
        Texas Penal    Code.                37.10(a)(3)
        prohibits, among other things, the inten-
        tional, unauthorized removal of governmental
        records. Whether    the removal of specific
        gubernatorial records from the custody of the
        state at the end of a gubernatorial      admin-
        istration violates section 37.10 depends     on
        proof of the elements of the criminal offense
        described in section 37.10.

             Similarly, violation  of section   12 of
        the Open Records Act, which prohibits      the
        unauthorized  removal   of public     records,
        depends on the facts in a given case.

             Section 441.002(g)(S) of the Government
        Code authorizes the Texas State Library and
        Archives  Commission   to   demand  physical
        custody of public records that a       state
        official has determined are not in current
        use.   Section 441.002(i) provides that the




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!   Mr. William D. Gooch - Page 7    (JM-1013)




            attorney general    shall resolve     disputes
            regarding  the proper custody of       records
            subject to section 441.002(g)(S).




                                     Jzyok
                                       JIM     MATTOX
                                       Attorney General of Texas

    MARYKEXLER
    First Assistant Attorney General

    ICUMCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEARLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    JENNIFER S. RIGGS
    Chief, Open Government Section
    of the Opinion Committee

    Prepared by Jennifer S. Riggs
    Assistant Attorney General




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