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.