BILL ANALYSIS S.B. 366 By: Armbrister State Affairs 3-21-95 Committee Report (Amended) BACKGROUND The Sunset Commission made a number of recommendations for the continuation of the Texas State Library and Archives Commission (commission). These suggestions included cataloguing, indexing, and providing access to electronic information; allowing local governments to adopt generic record retention schedules developed by the commission; reducing the duties of the Local Government Records Committee; and replacing the Records Management and Preservation Advisory Committee with an interagency coordinating council. PURPOSE As proposed, S.B. 366 sets forth the duties and responsibilities of the Texas State Library and Archives Commission, including the commission's involvement with the management of governmental records, and establishes the Local Government Records Committee and the Records Management Interagency Coordinating Council. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the Texas State Library and Archives Commission in SECTION 6 (Section 441.006(a)(15), Government Code), SECTION 8 (Section 441.0073, Chapter 441A, Government Code), and SECTION 9 (Section 441.0091(b)(3), Chapter 441A, Government Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 441.001, Government Code, as follows: Sec. 441.001. COMMISSION; MEMBERS. (a) Requires all six members of the Texas State Library and Archives Commission (commission) to be representatives of the general public. Sets forth the circumstances under which a person is ineligible because of the activities of the person or the person's spouse. (b)-(c) Make no changes. (d) Makes nonsubstantive changes. (e) Prohibits a person from serving as a commission member or acting as the general counsel if the person is required to register as a lobbyist because of the person's activities for compensation on behalf of a profession related to the operation of the commission. (f)-(g) Prohibit an officer, employee, or paid consultant of a Texas trade association in certain fields, or the spouse of the officer, manager or paid consultant from being a commission member or an employee of the commission who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act. Make conforming changes. (h) Defines "Texas trade association." (i) Sets forth circumstances that are grounds for removal from the commission. (j) Created from existing Subsection (g). (k) Requires the director and librarian to notify the presiding officer of the commission, or the next highest officer if the situation involves the presiding officer, if a potential ground for removal exists. Requires the presiding officer to then notify the governor and the attorney general that a potential ground for removal exists. (l) Redesignates existing Subsection (h). (m) Requires the governor, rather than the members, to designate a member as the presiding officer to serve at the governor's pleasure. (n) Prohibits a member from receiving compensation for services as a member. Entitles a member to reimbursement for activities incurred in connection with the performance of those services, subject to limits on reimbursement. (o) Redesignates existing Subsection (k) and makes conforming changes. (p) Requires the commission to develop policies that provide the public, rather than a member, with an opportunity to appear before the commission and to speak on any appropriate jurisdiction. (q) Redesignates existing Subsection (l) and provides that the commission is abolished September 1, 2007, rather than 1995. SECTION 2. Amends Chapter 441A, Government Code, by adding Section 441.0011, as follows: Sec. 441.0011. TRAINING FOR COMMISSION MEMBERS. (a) Requires a member to complete at least one course of an approved training course before assuming member duties or senate confirmation. (b) Sets forth required information for a training program. SECTION 3. Amends Section 441.002, Government Code, by adding Subsections (j) and (k), as follows: (j) Requires the commission to develop and implement policies that separate the policy-making responsibilities of the commission and the management responsibilities of the director and librarian and staff of the commission. (k) Requires the commission to comply with federal and state laws related to program and facility accessibility. Requires the director and librarian to prepare a plan that describes how a non-English speaking person can gain access to the commission's program. SECTION 4. Amends Section 441.004, Government Code, to require the intra-agency career ladder program to post all positions, rather than excluding entry level positions, concurrently with any public posting, rather than before public posting. Makes nonsubstantive changes. SECTION 5. Amends Section 441.005, Government Code, as follows: Sec. 441.005. (a) Requires the director and librarian or a designee, rather than the commission, to provide to the commission members and to commission employees information regarding their qualification for office or employment under this chapter and their responsibilities relating to standards of conduct for state officers or employees. (b) Requires the director and librarian, or a designee, rather than the commission, to prepare a written policy statement to assure implementation of a program of equal employment opportunity. Sets forth requirements for the policy statement. (c) Requires the statement to cover an annual period, be updated annually, be reviewed by the Commission on Human Rights, and be filed with the governor's office. (d) Requires the governor's office to deliver a biennial report, either separately or as part of other biennial reports, to the legislature based on the statement. Deletes existing requirements for the statement and for its report to the governor. SECTION 6. Amends Section 441.006(a), Government Code, to include establishing, by rule, methods by which consumers and service recipients are notified of the name, address, and phone number of the commission for the purpose of directing complaints to the commission in the list of required activities for the commission. Makes conforming and nonsubstantive changes. SECTION 7. Amends Sections 441.007(d) and (e), Government Code, as follows: (d) Requires the commission to keep information about each complaint filed and sets forth required contents of the information. (e) Requires the commission to keep a file about each written complaint filed with the commission that it has authority to resolve. Requires the commission to provide to the person filing the complaint and the persons or entities complained about the commission's policies pertaining to investigation and resolution. Requires the commission to notify all parties of the status of the complaint at least quarterly and until final disposition of the complaint, with an exception. SECTION 8. Amends Chapter 441A, Government Code, by adding Sections 441.0071-441.0074, as follows: Sec. 441.0071. CERTIFICATE RENEWAL. (a) Authorizes a person to renew an unexpired certificate by paying the required renewal fee to the commission before the expiration date of the certificate. Prohibits a person with an expired certificate from engaging in activities that require a certificate until it has been renewed. (b) Authorizes a person to renew a certificate if the person's certificate has been expired for 90 days or less by paying one and one-half times the renewal fee. (c) Authorizes a person to renew a certificate if the person's certificate has been expired for a time between 90 days and one year by paying twice the renewal fee. (d) Prohibits a person from renewing a certificate if the person's certificate has been expired for over one year. Authorizes the person to obtain a new certificate by complying with certain requirements. (e) Authorizes a person to renew an expired certificate if the person held a certificate in this state, moved to another state, and currently holds a certificate and has been in practice in the other state for two years preceding application. Requires the person to pay twice the renewal fee. (f) Requires the commission to send written notice of the impending certificate expiration to the person at the person's last known address at least 30 days before the expiration of a person's certificate. Sec. 441.0072. CERTIFICATES FROM OTHER STATES. Authorizes the commission to waive any prerequisite to obtaining a certificate after determining that the applicant holds a certificate from another state that has substantially equivalent requirements. Sec. 441.0073. CERTIFICATE EXPIRATION DATES. Requires the commission, by rule, to adopt a system under which certificates expire on various dates during the year. Requires fees to be prorated on a monthly basis for the year in which the expiration date is changed. Provides that on renewal of the certificate after the new expiration date, the total fee is payable. Sec. 441.0074. DISCIPLINARY ACTIONS. Entitles a person to a hearing conducted by the State Office of Administrative Hearings if the commission proposes to suspend, revoke, or refuse to renew the person's certificate. Provides that proceedings for a disciplinary action are governed by the administrative procedure law. Prohibits rules of practice adopted by the commission applicable to the proceedings for a disciplinary action from conflicting with rules adopted by the State Office of Administrative Hearings. SECTION 9. Amends Chapter 441A, Government Code, by adding Section 441.0091, as follows: Sec. 441.0091. GRANT PROGRAM FOR LOCAL LIBRARIES. (a) Authorizes the commission to provide for grants to meet information needs of residents and local libraries that are not adequately addressed under Subchapter I or other law. (b) Authorizes the commission, in designing the grant program, to consider federal law and funding priorities and include competitive grants, and requires the commission to adopt, by rule, the guidelines for awarding grants. SECTION 10. Amends Chapter 441A, Government Code, by adding Section 441.0105, as follows: Sec. 441.0105. RIGHT OF RECOVERY. (a) Authorizes the governing body of a state agency to demand and receive from any person any state government record (record) in private possession the removal of which was not authorized by law. (b) Authorizes the director and librarian to demand and receive from any person any record of permanent value in private possession. (c) Authorizes the director and librarian or the governing body of a state agency to ask the attorney general to petition a Travis County district court for the recovery of the record if the person in possession of the record refuses to deliver the record on demand. Requires the court to order the return of the record to state custody if the record is a state government record. Authorizes the attorney general to petition to have the record seized if the director and librarian or a governing body finds the record is in danger of being destroyed, altered, or removed from the state. (d) Requires a record recovered as the result of a petition to be transferred to the commission or other state agency's custody for which the return was demanded. (e) Requires the court to award attorney's fees and court costs to the prevailing party, if the attorney general petitions a court for the recovery of a record and prevails. (f) Defines "state agency." SECTION 11. Amends Section 441.012(b), Government Code, to make conforming changes. SECTION 12. Amends Section 441.013, Government Code, as follows: Sec. 441.013. New heading: REPORTS. (a)-(b) Make conforming changes. (c) Requires the director and librarian to prepare annually a written report accounting for all funds received and disbursed by the commission during the preceding fiscal year. Requires the report to meet the financial reporting requirements provided in the General Appropriations Act. SECTION 13. Amends Chapter 441A, Government Code, by adding Section 441.017, as follows: Sec. 441.017. COST RECOVERY FOR RECORDS STORAGE SERVICES. (a) Sets forth records to which this record does or does not apply. (b) Requires the commission to establish and keep current a cost recovery schedule for its records storage services (services). Requires the schedule to show the total cost to the commission of its services. (c) Requires each agency that uses the commission's services during a state fiscal biennium to send to the commission an estimate of the amount and nature of the services the agency will use. Requires the commission to prescribe the method for creating and submitting the estimate. (d) Requires the commission to base its legislative appropriations request for providing services to other agencies based on the estimates. Sets forth requirements for the commission's appropriations request. (e) Authorizes the legislature to appropriate money to pay the commission's costs in providing services for an agency to the commission or to the agency directly. (f) Defines "agency." SECTION 14. Amends Section 441.053, Government Code, as follows: Sec. 441.053. New heading: RECORDS MANAGEMENT INTERAGENCY COORDINATING COUNCIL. (a) Replaces the Records Management and Preservation Advisory Committee with the Records Management Interagency Coordinating Council (council) and sets forth the persons composing the council, including the director and librarian, rather than the state archivist. Deletes from the list of council members the executive head or departmental supervisor of certain state departments and agencies. (b) Provides that the position of presiding officer rotates among the council members and sets forth the duration of a term. (c) Provides that council service is an additional duty of a member's office or employment. Makes conforming changes. (d) Subjects the council to the open meetings law. (e) Requires the council's member agencies to provide the council staff. (f) Sets forth requirements for the council. (g) Requires the council to adopt policies, using the prescribed rulemaking procedures, that coordinate the activities of each member agency and that make other improvements in the state's management of records. (h) Requires each member agency to adopt the policies under Subsection (g) as the member agency's own rules, with an exception. (i) Requires each member agency to report on its adoption and implementation of rules within a certain time period. (j) Defines "member agency." SECTION 15. Amends Section 441.101(4), Government Code, to redefine "state publication." SECTION 16. Amends Section 441.102, Government Code, to require the commission to establish a system to allow electronic access at the Texas State Library (library) and other depository libraries to state publications in an electronic format that have been made available to the public. SECTION 17. Amends Section 441.103, Government Code, as follows: Sec. 441.103. STATE AGENCY DUTIES. (a) Requires a publications contact person to maintain a record of the agency's state publications and to furnish to the library a list of the agency's new state publications as they become available, rather than monthly. (b) Makes a nonsubstantive change. (c) Requires a state agency to provide certain information to the library on the release of a state publication in an electronic format and for further distribution. (d) Requires a state agency to provide the library with at least one free on-line connection to the agency's state publications that can be accessed on-line if the agency is allowing public on-line access to a state publication. Sets forth requirements for the connection. SECTION 18. Amends Section 441.104, Government Code, to add indexing all electronically formatted state publications in an electronic format, providing on-line access to state publications that can be accessed on-line, and providing other depository libraries appropriate access to electronically formatted state publications to the list of the library's required duties. SECTION 19. Amends Section 441.105, Government Code, to exempt a distribution format from this subchapter. SECTION 20. Amends Sections 441.122(1) and (11), Government Code, to redefine "accreditation of libraries" and "major resource system." SECTION 21. Amends Chapter 441I, Government Code, by adding Section 441.1271, as follows: Sec. 441.1271. EXTENDING MEMBERSHIP OF MAJOR RESOURCE SYSTEMS TO CERTAIN NONPUBLIC LIBRARIES. (a) Authorizes a major resource system (system) to extend its membership to include libraries that are not public libraries and that are operated by certain entities. (b) Sets forth requirements for the decision to extend system membership. (c) Sets forth requirements for a library that is a type of library to which a system has extended its membership. (d) Authorizes the commission to terminate the system membership of a library that is not a public library and that joined a system if the library fails to meet certain standards or obligations. (e) Requires a library that is not a public library that joins a system to provide benefits to the public through its membership in the system that are sufficient to constitute fair value in exchange for the benefits received through its membership. (f) Authorizes a system that has extended its membership to some but not all of the types of libraries described by Subsection (a) to extend its membership to one or more of the remaining types of libraries described by Subsection (a). Requires a decision to be made and approved in the manner prescribed for a decision. SECTION 22. Amends Section 441.158, Government Code, by amending Subsection (d) and adding Subsection (f), as follows: (d) Requires a records retention schedule to be reviewed, rather than approved, by the local government records committee (committee), rather than by a majority of the members. (f) Requires the initial schedule to be adopted by January 2, 1996. Provides that this subsection expires January 5, 1999. SECTION 23. Amends Section 441.162(b), Government Code, to replace existing requirements for the composition of the committee. SECTION 24. Amends Section 441.163, Government Code, as follows: Sec. 441.163. APPOINTMENT OF LOCAL GOVERNMENT RECORDS COMMITTEE; COMPENSATION. (a)-(b) Make conforming changes. (c) Requires a nomination to include a nominee who resides in a county with a population of more than 10,000 and a nominee who resides in a county with a population of fewer than 10,000 or a municipality or district that does not extend into a county with a population of 10,000 or more. (d) Requires the director and librarian to appoint a nominee after the 30th day after the date the notice is published under Subsection (b) or an officer chosen by the director and librarian, if there are no nominees. (e) Requires the director and librarian to appoint members to give representation to all geographical regions of the state, rather than giving preference to a nomination received from organizations whose membership consists primarily of the type of officer to be nominated. (f) Makes conforming changes. (g) Deletes a provision requiring expenses of the district judge to be paid from council funds. (h) Requires the committee members to elect a presiding officer, rather than providing that the district judge is chairman, at the first meeting held by newly appointed or reappointed members within a certain time period. Requires the director and librarian to call that first meeting. SECTION 25. Amends Section 441.164(a), Government Code, to delete a provision authorizing initial committee members to be appointed for terms of less than two years. SECTION 26. Amends Section 202.004, Local Government Code, as follows: Sec. 202.004. New heading: ALIENATION OF RECORDS. (a) Authorizes a local government record to be sold or donated, loaned, transferred, or otherwise passed out of the custody of a local government to any public institution of higher education, public museum, public library, or other public entity after the expiration of the record's retention period under the local government's records control schedule. (b) Makes a conforming and a nonsubstantive change. (c) Authorizes a records management officer or custodian to temporarily transfer a local government record for records management and preservation procedures. SECTION 27. Amends Sections 203.041(a)-(c) and (h), Local Government Code, as follows: (a) Requires the records and management officer to prepare and file with the director and librarian by January 4, 1999, rather than January 2, 1995, a written declaration that the governing body of the local government or an elected county officer has adopted appropriate records retention schedules for use in the records management program of the local government or elective county office. Redesignates existing text. (b) Authorizes a records control schedule that is not identical to applicable commission records retention schedules to also list and provide retention periods for material that is excluded from the definition of a local government record and exempted records under certain circumstances. (c) Authorizes a records control schedule that is identical to applicable commission records retention schedules to be amended so that it is no longer identical to the commission schedules. Requires the amended schedule to be prepared and filed for acceptance with the director and librarian in the same manner as other amended records control schedules. Deletes provisions authorizing the director and librarian to extend the deadline. (h) Makes conforming changes. SECTION 28. Amends Section 203.042(a), Local Government Code, to require the decision to adopt a records control schedule that is identical to applicable commission records retention schedules or the length of the retention period for each record on a records control schedule that is not identical to applicable commission records retention schedules to be determined under the direction of the governing body or by the elected county officer. SECTION 29. Amends Sections 203.043(a)-(c), Local Government Code, as follows: (a) Makes conforming changes. (b) Requires the schedule or amended schedule to be corrected and resubmitted or the appropriate records retention schedules to be adopted as the records control schedule and the written declaration to be submitted if the director and librarian or a designee rejects the records control schedule, amended schedule, or written declaration for filing. (c) Authorizes the director and librarian or a designee to reject a written declaration for filing only if the local government or elected county officer did not adopt the appropriate records retention schedules. SECTION 30. Amends Sections 203.045(a)-(c), Local Government Code, to make conforming changes. SECTION 31. Repealer: Chapter 481P, Government Code (Grants-In-Aid to Libraries). SECTION 32. (a) Requires the State Council on Competitive Government (state council) to study the microfilming and services performed by the commission that are also commercially available to determine whether state government should procure those services competitively from private sources, from the commission and other public sources, or from both. (b) Requires the state council to include in its study the commission's document destruction services but not include the commission's preservation microfilming services. (c) Requires the state council to complete its study before September 1, 1997. (d) Authorizes the state council to direct that state agencies procure competitively some or all of the studied services from private sources, from the commission and other public sources, or from both. SECTION 33. Makes application of this Act prospective. SECTION 34. (a) Requires the commission, in establishing the system under Subchapter G, for public electronic access at the library and other depository libraries to state publications in an electronic format, to phase in the system over a four-year period beginning September 1, 1995 and establish the system using existing state agency electronic networks to minimize costs. (b) Requires state agencies to cooperate with the commission in establishing the system. SECTION 35. (a) Provides that the Records Management and Preservation Advisory Committee is abolished. (b) Provides that all property and records of the committee become the records of the council. (c) Provides that a reference in law to the advisory committee is a reference to the council. (d) Provides that the commission director and librarian is the first presiding officer of the council. SECTION 36. (a) Provides that the terms of committee members who hold their positions immediately before the effective date of this Act expire on that date. Requires the director and librarian of the commission to appoint members to the committee for terms expiring February 1, 1997. Requires the director and librarian to call the first meeting of the committee members after all members have been appointed. (b) Provides that any rules, schedules, or revisions of rules or schedules that are pending before the committee for approval on the effective date of this Act are no longer subject to the committee's approval. Requires the committee to review and comment on the rules, schedules, or revisions. SECTION 37. Effective date: September 1, 1995. SECTION 38. Emergency clause.