SCT C.S.H.B. 1812 75(R)    BILL ANALYSIS


STATE FEDERAL & INTERNATIONAL RELATIONS
C.S.H.B. 1812
By: Hunter
4-23-97
Committee Report (Substituted)

BACKGROUND 

Current laws relating to state records, archives, and other historical
resources were enacted piecemeal over the last 100 years.  Although the
Texas State Library and Archives Commission has been able to exercise its
responsibilities in the management of state agency records and in
preserving state records of historical value, current law is scattered
throughout several subchapters of Chapter 441, Government Code, and is
often ambiguous, unclear, and contradictory. Current law also does not
adequately address electronic media. A revision of the state records and
archival statutes would enable the commission to provide more effective
leadership in the management and preservation of state records and
information. 

PURPOSE

As proposed, H. B. 1812 consolidates, clarifies, and modernizes statutes
relating to the management of state records and the preservation of
archival state records and other historical resources. 

RULEMAKING AUTHORITY

Although the bill does not grant any rulemaking authority to the Texas
State Library and Archives Commission or the Records Management
Interagency Coordinating Council that they do not already possess, the
following sections grant rulemaking authority to the commission: SECTION 1
- Sections 441.185 (e) (f), 441.187(e), 441.188(b), 441.189(a), 441.190,
441.193(c), and 441.199, Government Code.  The following section grants
rulemaking authority to the Records Management Interagency Coordinating
Council:  SECTION 1 - Section 441.202(f). 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 441, Government Code, by adding Subchapter L,
as follows: 

SUBCHAPTER L.  PRESERVATION AND MANAGEMENT OF STATE RECORDS AND OTHER
HISTORICAL RESOURCES 

Sec. 441.180.  DEFINITIONS.  Defines "agency head," "archival state
record," "commission,"  "confidential state record," "director and
librarian," "historical resources," "records management," records
management officer," "state agency," "state archivist," "state record,"
"state records administrator," and "vital state record." 

Sec. 441.181.  STATE ARCHIVES PROGRAM.  Authorizes the commission to take
legal custody of and preserve archival state records and other historical
resources.  Provides for the appointment by of a state archivist by the
director and librarian and sets out the duties of that officer. 

Sec. 441.182.  STATE RECORDS MANAGEMENT PROGRAM.  Authorizes the
commission to assist state agencies in managing state records.  Provides
for the appointment of a state records administrator by the director and
librarian and sets out the duties of that officer.  Authorizes the
commission to operate the state records center, to perform micrographic
and other imaging services, and to provide for or oversee other storage or
imaging services.  Permits the commission to recover the costs of records
management training, records storage, and imaging services. Requires the
director and librarian and the state records administrator to file a
performance bond with the secretary of state. 

Sec. 441.183.  RECORDS MANAGEMENT PROGRAMS IN STATE AGENCIES.  Requires
that the agency head of each state agency establish a records management
program in the agency and sets out the duties of the agency head regarding
the creation and maintenance of the records of the agency. 

Sec. 441.184.  RECORDS MANAGEMENT OFFICER.  Requires the agency head of
each state agency to act as or appoint someone to act as records
management officer for the agency and prescribes the duties of that
officer. 

Sec. 441.185.  RECORD RETENTION SCHEDULES. Requires the records management
officer for each state agency to submit a records retention schedule to
the state records administrator, listing the records of the agency, and
proposing how long the records will be retained.  Provides that each
schedule must be approved by the director and librarian and the state
auditor before it can be used as the basis for the lawful destruction of
state records.  Requires the commission to adopt rules concerning the
scheduling process.  Authorizes the commission to adopt rules establishing
minimum retention periods for state records. 

Sec. 441.186.  ARCHIVAL STATE RECORDS.  Requires the state archivist to
identify archival state records through records retention schedules or
personal inspection. Requires that archival state records be transferred
to the custody of the commission when they are no longer needed for the
administration of the agency unless other law requires them to remain in
the custody of the agency.  Provides that if the commission is unable to
accept the records, the state agency shall preserve them in accordance
with rules adopted by the commission.  Permits universities to retain
their archives.  Forbids the transfer of an archival state record from one
agency to another without the consent of the director and librarian.
Permits the reappraisal of the historical value of  archival state records
and their destruction under certain conditions.  Establishes procedures
for resolving disagreements between the commission and other state
agencies concerning the custody of archival state records. 

Sec. 441.187.  DESTRUCTION OF STATE RECORDS.  Sets forth the conditions
that must be met before a state record may be destroyed.  Authorizes the
commission to adopt rules establishing the permissible means by which a
state record is destroyed. 

Sec. 441.188.  MICROFILMED STATE RECORDS.  Provides that any state record
may be microfilmed in accordance with rules adopted by the commission and
that a microfilmed record created in compliance with those rules is an
original record and shall be accepted as such by any court or
administrative agency in the state. 

Sec. 441.189.  ELECTRONIC STATE RECORDS. Provides that any state record
may be created or stored electronically in accordance with rules adopted
by the commission and that certified output from electronically digitized
images or other data compilations created in compliance with those rules
is an original record and shall be accepted as such by any court or
administrative agency in the state, unless barred by a federal law,
regulation, or rule of court. 

Sec. 441.190.  PROTECTION, MAINTENANCE, AND STORAGE OF STATE RECORDS.
Authorizes the commission to adopt rules regarding the protection,
maintenance, and storage of state records. 

Sec. 441.191.  ALIENATION OF STATE RECORDS.  Forbids the transfer of a
state record out of the custody of the state without the consent of the
director and librarian. Permits the temporary transfer of records out of
the physical custody of the state for performance of records management or
preservation procedures. 

Sec. 441.192.  RIGHT OF RECOVERY. Provides for re-enactment with amendment
of Section 441.0105, Government Code, which this bill repeals. Allows
state agencies as well as the commission to recover a state record that
was illegally removed from state possession and specifies the process for
recovering the record.  Provides that the commission may ask the attorney
general to petition to recover the record. Also awards attorney's fees and
court costs to the attorney general if the attorney general recovers the
record. 

Sec. 441.193.  CUSTODY OF STATE RECORDS AND OTHER HISTORICAL RESOURCES OF
COMMISSION; PUBLIC ACCESS.  Provides that all archival state records or
other historical resources acquired by the commission become the property
of the commission. Requires the commission to adopt rules concerning
public access to archival state records. Requires the state records
administrator to deny public access to records of another state agency
stored in the state records center without written authorization from the
agency. Prohibits public access to the original microfilm of state records
stored at the state records center. 

 Sec. 441.194.  RECORDS OF ABOLISHED STATE AGENCIES.  Provides that the
records of abolished state agencies shall be transferred to the General
Services Commission.  Specifies procedures for the maintenance and
disposition of the records in cooperation with commission staff. 

Sec. 441.195.  CONTRACTING AUTHORITY.  Authorizes the commission to enter
into contracts to foster and assist the preservation and management of
state records or other historical resources. Forbids contracts to bind the
state for the payment of any funds except as authorized by an
appropriation from the legislature. 

Sec. 441.196.  SALE OF COPIES OF STATE ARCHIVES.  Authorizes the
commission to sell copies of state archival records or other historical
resources at a price not exceeding 25 per cent above the cost of
publishing or producing the copies. 

Sec. 441.197.  SALE OR DUPLICATE OR UNNEEDED MATERIAL.  Authorizes the
commission to sell duplicate or unwanted archival state records or other
historical resources. Revenue from such sale is to be used to preserve the
other historical material in the state archives and make it available for
research. 

Sec. 441.198. AGREEMENT WITH MEXICO.  Provides for the re-enactment
without amendment of Section 441.0115, Government Code, which this bill
repeals. Authorizes the commission to negotiate with Mexico for the loan
or trade of the battle flags of three Mexican battalions in the possession
of the State of Texas for the flag of the New Orleans Greys captured at
the Battle of the Alamo. 

Sec. 441.199.  RULEMAKING AUTHORITY.  Authorizes the commission to adopt
rules it determines necessary for cost reduction and efficiency of record
keeping by state agencies and for the state's management and preservation
of records. 

Sec.  441.200.  AUDIT.  Permits the state auditor to report on a state
agency's compliance with Subchapter F and rules adopted under it. 

Sec. 441.201.  RECORDS OF OFFICE OF GOVERNOR.  Provide that governor, in
consultation with the commission, may designate an institution of higher
education or alternate archival institution in this state as the
repository for the records of the executive office of the governor created
or received during the governor's term of office.  Alternate repository
must maintain the records according to accepted archival practices and
assure public accessibility.  Provides the commission will record the
arrangement through a memorandum of understanding, a deposit agreement, or
other appropriate documentation. 

Sec.  441.202.  ARCHIVES OF GENERAL LAND OFFICE.  Provides for the
re-enactment with amendment of Section 441.021, Government Code, which
this bill repeals. Establishes an archives in the General Land Office and
provides that the archives are not subject to transfer to  the commission.
Specifies the content of the archives of the General Land Office and
various duties of the land commissioner in procuring records relating to
land grants. 

Sec. 441.203.  RECORDS MANAGEMENT INTERAGENCY COORDINATING COUNCIL.
Provides for the re-enactment without amendment of Section 441.053,
Government Code, which this bill repeals.  Specifies the membership and
duties of the council and its member agencies. 

SECTION 2.  Amends Section 51.204, Government Code, to provide that
records of courts of appeal are subject to the provisions of this bill. 

SECTION 3.  Amends Section 441.002(g), Government Code, to delete outdated
and redundant language and to provide that the director and librarian
shall administer programs provided for in this bill. 

SECTION 4.  Amends Section 441.003, Government Code, to provide for the
appointment of and to set out the qualifications for a state records
administrator.  Provides that the same individual may serve as both state
archivist and state records administrator.  Deletes outdated language
concerning other commission employees. 

SECTION 5.  Amends Section 441.006(a), Government Code, to delete outdated
and redundant language concerning duties of the commission and to add a
new paragraph (8) describing commission duties under this bill. 

SECTION 6.  Amends Section 441.008(c), Government Code, to provide that
the commission may not transfer archival state records or other historical
resources in the state archives to another library. 

SECTION 7.  Amends Section 441.013(a), Government Code, to provide that
the commission will report on activities under this bill in its biennial
report. 

SECTION 8.  Repeals the following:

(1)  Sections 51.205 (relating to the preservation of records by
microfilming by courts of appeal), 441.002(i) (relating to disagreement
over the proper custody of state records), 441.010 (relating to the
custody of records and other materials in the possession of the
commission),  441.0105 (relating to the right of recovery of state records
from private possession), 441.011 (relating to the relics of the Texas
Museum), 441.0115 (relating to an agreement with Mexico concerning certain
flags), and 441.012 (relating to the sale of Texas Archives), Government
Code. 

(2)  Subchapters B (relating to the archives of certain agencies), C
(relating to the Records Management Division of the Texas State Library),
D (relating to the preservation of essential records, and K (relating to
the reduction and simplification of agency paperwork), Chapter 441,
Government Code. 
 
SECTION 9.  Effective date:  September 1, 1997

SECTION 10.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

CSHB 1812 amends SECTION 1 by adding new Section 441.201, and re-numbering
old Section 441.201 to Section 441.202 and old Section 441.202 to Section
441.203.   

These changes provide that a governor, in consultation with the
commission, may designate an institution of higher education or alternate
archival institution in this state, in lieu of the commission, as the
repository for the records of the executive office of the governor created
or received during the governor's term of office.  Provides the alternate
repository must maintain the records according to accepted archival
practices and assure public accessibility.  Provides the commission will
record the arrangement through a memorandum of understanding, a deposit
agreement, or other appropriate documentation.