By: Lambert, et al. (Senate Sponsor - Hall) H.B. No. 1962

(In the Senate - Received from the House April 11, 2019; April 15, 2019, read first time and referred to Committee on Business & Commerce; May 20, 2019, reported adversely, with favorable Committee Substitute by the following vote: Yeas 7, Nays 0; May 20, 2019, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR H.B. No. 1962 By: Nichols

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas State Library and Archives Commission, including the custody and ownership of certain state records.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 324, Government Code, is amended by adding Sections 324.0085 and 324.0086 to read as follows:

Sec. 324.0085. LEGISLATIVE RECORDS. (a) The library is the depository for any record created or received by the office of a member of the legislature or the lieutenant governor during that official's term of office.

(b) The legislative entity that transferred records to the library retains ownership and legal custody of those records, including records placed in a depository outside the library. The legislative entity may retrieve the records for the legislature's use. The director and library employees shall assist the legislative entity with retrieval of the records and shall return the records to the library following the legislature's use.

(c) The director shall protect privileged or confidential legislative records held by the library from public disclosure at the direction of the legislative entity that transferred the records to the library.

(d) The director shall receive requests under Chapter 552 for legislative records held by the library and respond as directed by the officer for public information of the legislative entity that transferred the records to the library. The director shall notify the appropriate officer for public information as soon as practicable after receiving a request described by this subsection.

Sec. 324.0086. PLACEMENT IN OTHER DEPOSITORY. (a) A member of the legislature may apply to the board to place records that were created or received by the member's office during the member's term in a depository other than the library.

(b) The board shall:

(1) create a list of preapproved depositories in which members of the legislature may place records of their legislative offices; and

(2) by rule adopt policies and procedures to approve additional depositories.

(c) The director is responsible for the preservation of records described by Subsection (a) placed in a depository other than the library. Ownership and legal custody of the records remain with the legislature as provided by Section 324.0085. The records may not be intermingled with other holdings of the institution that serves as a depository.

SECTION 2. Section 441.001(q), Government Code, is amended to read as follows:

(q) The Texas State Library and Archives Commission is subject to Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished September 1, 2031 [2019].

SECTION 3. Section 441.0011, Government Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows:

(b) The training program must provide the person with information regarding:

(1) the law governing [legislation that created the] commission operations;

(2) the programs, functions, rules, and budget of the commission;

(3) the scope of and limitations on the rulemaking authority of the commission;

(4) the results of the most recent formal audit of the commission;

(5) [(4)] the requirements of:

(A) laws relating to open meetings, public information, administrative procedure, and disclosing conflicts of interest; and

(B) other laws applicable to members of a state policymaking body in performing their duties; and

(6) [(5)] any applicable ethics policies adopted by the commission or the Texas Ethics Commission.

(d) The director and librarian shall create a training manual that includes the information required by Subsection (b). The director and librarian shall distribute a copy of the training manual annually to each member of the commission. Each member of the commission shall sign and submit to the director and librarian a statement acknowledging that the member received and has reviewed the training manual.

SECTION 4. Section 441.006(b), Government Code, is amended to read as follows:

(b) The commission may:

(1) purchase, as state property, any suitable book, picture, or similar item, within the limits of the annual legislative appropriation;

(2) receive a donation or gift of money, property, or services on any terms and conditions it considers proper as long as the state does not incur financial liability;

(3) accept, receive, and administer federal funds made available by grant or loan to improve the public libraries of this state;

(4) contract or agree with the governing body or head of a county, city, or town of this state to meet the terms prescribed by the United States and consistent with state law for the expenditure of federal funds for improving public libraries; [and]

(5) participate in the establishment and operation of an affiliated nonprofit organization whose purpose is to raise funds for or provide services or other benefits to the commission; and

(6) use general revenue, grants, donations, gifts, and, if authorized by federal law, federal funds to advertise and promote commission programs and increase participation in and awareness of those programs.

SECTION 5. Subchapter A, Chapter 441, Government Code, is amended by adding Section 441.0065 to read as follows:

Sec. 441.0065. ADVISORY COMMITTEES. (a) The commission may establish an advisory committee to make recommendations to the commission on programs, rules, and policies affecting the delivery of information services in the state.

(b) In establishing an advisory committee under this section, the commission shall adopt rules regarding:

(1) the purpose, role, responsibility, and goals of the committee;

(2) the size and quorum requirement of the committee;

(3) qualifications for committee membership;

(4) appointment procedures for members;

(5) terms of service for members;

(6) training requirements for members;

(7) a periodic review process to evaluate the continuing need for the committee; and

(8) a requirement that committee meetings be open to the public.

SECTION 6. Sections 441.0945(a) and (b), Government Code, are amended to read as follows:

(a) A county record may be destroyed if the record is listed on a valid [the] records schedule and implementation plan [accepted for filing by the director and librarian] and either its retention period has expired or it has been microfilmed or stored electronically in accordance with applicable law.

(b) The retention period of a record as listed on [director and librarian or a person on the staff of the director and librarian may reject] the records schedule and implementation plan must be at least as long as [for a record if the retention period of the record as listed on the plan is less than] the retention period for the record established on a records retention schedule issued by the commission [by the county records manual. If the plan is rejected, the director and librarian or staff person shall file with the custodian the rejected schedule and a statement of the reasons for rejection not later than the 30th day after the date the director and librarian or staff person received the records schedule and implementation plan. If a schedule is rejected under this subsection, the custodian may submit an amended schedule].

SECTION 7. Sections 441.095(d) and (e), Government Code, are amended to read as follows:

(d) A custodian may dispose of a county record that is not listed on a records retention schedule issued by the commission if, not [Not] later than the 10th day before the date the [a] record is destroyed, the custodian files and records [shall file and record] a notice with the county clerk. The notice must indicate the record to be destroyed, how it is to be destroyed, and the date of its destruction. On the day the notice is filed, the county clerk shall post a copy of it in the same manner that a notice of a meeting is posted under Chapter 551.

(e) The custodian may destroy the record at any time after [the director and librarian has approved the destruction and] the notice required by Subsection (d) has been posted for 10 days by the county clerk.

SECTION 8. Section 441.153, Government Code, is amended by amending Subsection (f) and adding Subsection (g) to read as follows:

(f) Except as otherwise provided by Subsection (g), title [Title] to historical resources placed in a depository by the commission remains with the commission, and the historical resources may not be intermingled with other holdings of the institution that serves as a depository.

(g) A depository may apply to the commission to transfer to the depository title to local historical resources placed in the depository by the commission. The commission shall approve the application only if the transfer of title is in the state's best interest. The commission, in consultation with depositories, shall adopt rules providing an application procedure and standards for evaluating applications to transfer title to local historical resources to depositories. This subsection does not authorize the commission to transfer title to state historical resources.

SECTION 9. Section 441.167, Government Code, is amended to read as follows:

Sec. 441.167. ASSISTANCE [STATUTORY FILING] AND INFORMATION [REVIEW]. The director and librarian may designate employees of the commission to provide assistance and information to local governments on records management issues under [act as deputies in the approval or disapproval or acceptance or rejection for filing of any records control schedule, destruction authorization request, electronic storage authorization request, or other statutory filing required by] Subtitle C, Title 6, Local Government Code, or rules adopted under it.

SECTION 10. Subchapter J, Chapter 441, Government Code, is amended by adding Section 441.169 to read as follows:

Sec. 441.169. DUTIES OF LOCAL GOVERNMENTS. Each local government shall:

(1) submit to the director and librarian the name of the local government's records management officer identified under Section 203.001, Local Government Code, or designated under Section 203.025, Local Government Code, and the name of the new officer in the event of a change;

(2) file a plan or an ordinance or order establishing a records management program and any amendments to the plan or ordinance or order with the director and librarian as required by Sections 203.005 and 203.026, Local Government Code;

(3) notify the commission at least 10 days before destroying a local government record that does not appear on a records retention schedule issued by the commission; and

(4) file with the director and librarian a written certification as provided by Section 203.041, Local Government Code, that the local government has prepared a records control schedule that:

(A) establishes a retention period for each local government record as required by Subchapter C, Chapter 203, Local Government Code; and

(B) complies with a local government records retention schedule distributed by the director and librarian under Section 441.158 and any other state and federal requirements.

SECTION 11. Section 441.180, Government Code, is amended by adding Subdivision (6-a) and amending Subdivisions (9) and (11) to read as follows:

(6-a) "Legislative record" means any record created or received by the office of a member of the legislature or the lieutenant governor during the official's term of office.

(9) "State agency" means:

(A) any department, commission, board, office, or other agency in the executive, legislative, or judicial branch of state government created by the constitution or a statute of this state and includes[, including] an eleemosynary institution but does not include the office of a member of the legislature or the lieutenant governor;

(B) any university system and its components and any institution of higher education as defined by Section 61.003, Education Code, except a public junior college, not governed by a university system board;

(C) the Texas Municipal Retirement System and the Texas County and District Retirement System; and

(D) any public nonprofit corporation created by the legislature whose responsibilities and authority are not limited to a geographical area less than that of the state.

(11) "State record" means any written, photographic, machine-readable, or other recorded information created or received by or on behalf of a state agency or an elected state official that documents activities in the conduct of state business or use of public resources. The term includes any recorded information created or received by a Texas government official in the conduct of official business, including officials from periods in which Texas was a province, colony, republic, or state. The term does not include:

(A) library or museum material made or acquired and maintained solely for reference or exhibition purposes;

(B) an extra copy of recorded information maintained only for reference; [or]

(C) a stock of publications or blank forms; or

(D) a legislative record.

SECTION 12. Subchapter L, Chapter 441, Government Code, is amended by adding Sections 441.1815, 441.1935, and 441.1965 to read as follows:

Sec. 441.1815. STATE ARCHIVES STRATEGIC PLAN. The commission, with input from interested persons, shall develop and implement a comprehensive strategic plan regarding the state archives. The commission shall update the strategic plan at least once every five years. The strategic plan must include:

(1) an assessment of any current archives backlog;

(2) a prioritized list of projects and goals related to the state archives;

(3) an evaluation of the resources needed to achieve the commission's goals related to the state archives, including the impact that different amounts of those resources are expected to have on the commission's ability to achieve those goals;

(4) performance measures, targets, and timeframes for achieving the commission's goals related to the state archives;

(5) a mechanism for regular reporting to the commission on progress toward achieving the commission's goals related to the state archives; and

(6) opportunities and standards for entering into collaborative agreements with interested persons regarding the state archives.

Sec. 441.1935. REQUIREMENTS FOR REQUESTS FOR INFORMATION HELD BY STATE ARCHIVES PROGRAM. (a) The commission shall promulgate a form that persons must use to request access to information held by the state archives program. The form must allow the requestor to designate the request either as a request for public information made under Chapter 552 or as a research request not subject to the requirements of that chapter. The form must include:

(1) a plain-language explanation of the difference between a request for public information made under Chapter 552 and a research request not subject to the requirements of that chapter;

(2) the requirements for making and responding to each type of request; and

(3) an option for the requestor to change the type of request at any time.

(b) Notwithstanding any other law, a request for information held by the state archives program is considered to be a request for public information under Chapter 552 only if the requestor makes the request using the form described by Subsection (a) and on the form designates the request as a request for public information under Chapter 552.

Sec. 441.1965. SALE OF REPLICAS FROM STATE ARCHIVES. (a) The commission may sell replicas of archival state records and other historical resources in its custody subject to the approval of the commission.

(b) Money received from the sale of replicas under Subsection (a) shall be deposited to the credit of a dedicated account in the general revenue fund and may be appropriated only to the commission for the purposes of preservation, digitization, archives information services, and education.

SECTION 13. Section 202.001(a), Local Government Code, is amended to read as follows:

(a) A local government record may be destroyed if:

(1) the record is listed on a valid records control schedule [accepted for filing by the director and librarian as provided by Section 203.041] and either its retention period has expired or it has been microfilmed or stored electronically in accordance with the requirements of Chapters 204 and 205;

(2) the record appears on a list of obsolete records [approved by the director and librarian] as provided by Section 203.044; or

(3) the [a destruction request is filed with and approved by the director and librarian as provided by Section 203.045 for a] record is not listed on a records retention [an approved control] schedule issued by the commission and the local government provides notice to the commission at least 10 days before destroying the record as required by Section 441.169, Government Code.

SECTION 14. Section 203.002, Local Government Code, is amended to read as follows:

Sec. 203.002. DUTIES AND RESPONSIBILITIES OF ELECTED COUNTY OFFICERS AS RECORDS MANAGEMENT OFFICERS. The elected county officer shall:

(1) develop policies and procedures for the administration of an active and continuing records management program;

(2) administer the records management program so as to reduce the costs and improve the efficiency of recordkeeping;

(3) [prepare and file with the director and librarian the records control schedules and amended schedules required by Section 203.041 and the list of obsolete records as provided by Section 203.044;

[(4) prepare requests for authorization to destroy records not on an approved control schedule as provided by Section 203.045, requests to destroy the originals of permanent records that have been microfilmed as provided by Section 204.008, and electronic storage authorization requests as provided by Section 205.007;

[(5)] identify and take adequate steps to preserve records that are of permanent value;

(4) [(6)] identify and take adequate steps to protect the essential records of the office;

(5) [(7)] ensure that the maintenance, preservation, microfilming, destruction, or other disposition of records is carried out in accordance with the policies and procedures of the records management program and the requirements of this subtitle and rules adopted under it; and

(6) [(8)] cooperate with the commission in its conduct of statewide records management surveys.

SECTION 15. Section 203.023, Local Government Code, is amended to read as follows:

Sec. 203.023. DUTIES OF RECORDS MANAGEMENT OFFICER. The records management officer in each local government shall:

(1) assist in establishing and developing policies and procedures for a records management program for the local government;

(2) administer the records management program and provide assistance to custodians for the purposes of reducing the costs and improving the efficiency of recordkeeping;

(3) in cooperation with the custodians of the records,[:

[(A)] prepare [and file with the director and librarian] the records control schedules and amended schedules required by Section 203.041 and the list of obsolete records as provided by Section 203.044[; and

[(B) prepare or direct the preparation of requests for authorization to destroy records not on an approved control schedule as provided by Section 203.045, of requests to destroy the originals of permanent records that have been microfilmed as provided by Section 204.008, and of electronic storage authorization requests as provided by Section 205.007];

(4) in cooperation with custodians, identify and take adequate steps to preserve local government records that are of permanent value;

(5) in cooperation with custodians, identify and take adequate steps to protect essential local government records;

(6) in cooperation with custodians, ensure that the maintenance, preservation, microfilming, destruction, or other disposition of records is carried out in accordance with the policies and procedures of the local government's records management program and the requirements of this subtitle and rules adopted under it;

(7) disseminate to the governing body and custodians information concerning state laws, administrative rules, and the policies of the government relating to local government records; and

(8) in cooperation with custodians, establish procedures to ensure that the handling of records in any context of the records management program by the records management officer or those under the officer's authority is carried out with due regard for:

(A) the duties and responsibilities of custodians that may be imposed by law; and

(B) the confidentiality of information in records to which access is restricted by law.

SECTION 16. The heading to Section 203.041, Local Government Code, is amended to read as follows:

Sec. 203.041. PREPARATION [AND FILING] OF RECORDS CONTROL SCHEDULES.

SECTION 17. Sections 203.041(a), (d), (f), and (g), Local Government Code, are amended to read as follows:

(a) On or before January 4, 1999, the records management officer shall [prepare and file with the director and librarian]:

(1) prepare a records control schedule listing the following records and establishing a retention period for each as provided by Section 203.042:

(A) all records created or received by the local government or elective county office;

(B) any record no longer created or received by the local government or elective county office that is still in its possession and for which the retention period on a records retention schedule issued by the commission has not expired; and

(C) any record no longer created or received by the local government or elective county office that is still in its possession and for which the retention period on a records retention schedule issued by the commission has expired but which will not be destroyed as provided by Section 203.044; and [or]

(2) [the records management officer, in lieu of filing a records control schedule, may] file with the director and librarian a written certification of compliance that the local government or the elective county office has adopted records control schedules that comply with the minimum requirements established on records retention schedules issued by the commission.

(d) The records management officer shall review the records control schedules of the local government or elective county office and prepare amendments to the schedules as needed to reflect new records created or received by the government or office or revisions to retention periods established in a records retention schedule issued by the commission. The records management officer shall file with the director and librarian a written certification of compliance that the local government or the elective county office has amended the records control schedules to comply with the minimum requirements established on records retention schedules issued by the commission [Amendments to records control schedules shall be filed with the director and librarian in the same manner as the original schedules].

(f) Records control schedules may be prepared [filed] on an office-by-office basis or on a department-by-department basis within each office.

(g) A local government that intends to retain all records permanently or that destroys only those records for which no retention periods have been established in a records retention schedule established under Section 441.158, Government Code, is not required to prepare [submit] a records control schedule under this section.

SECTION 18. Section 204.007(a), Local Government Code, is amended to read as follows:

(a) The [Except as provided by Section 204.008, the] original of a record that has been microfilmed pursuant to this chapter and rules adopted under it may be destroyed before the expiration of its retention period on a records retention schedule issued by the commission.

SECTION 19. Sections 205.008(a) and (c), Local Government Code, are amended to read as follows:

(a) The source document, if any, for electronically stored local government record data covered by rules adopted under Section 205.003(a) [205.007(a)] may be destroyed or returned to the person who filed it for record [if the electronic storage authorization request is approved].

(c) The source document, if any, for electronically stored local government record data not covered by rules adopted under Section 205.003(a) [205.007(a)] may be destroyed before the expiration of the retention period for the source document in a records retention schedule issued by the commission if the magnetic tape, optical disk, or similar medium and hardware and software necessary to provide access to local government record data on the media are retained for the retention period in the schedule. Conversely, the magnetic tape, optical disk, or similar medium may be erased, written over, or destroyed before the expiration of the retention period for a source document for local government record data not covered by rules adopted under Section 205.003(a) [205.007(a)], if the source document, if any, is retained until the expiration of its retention period or, if the source document has already been destroyed, paper or microfilm copies are generated from the magnetic tape, optical disk, or similar medium before destruction or erasure and retained until the expiration of the retention period for the source document.

SECTION 20. (a) The following provisions of the Government Code are repealed:

(1) Section 441.094(e);

(2) Section 441.0945(c); and

(3) Sections 441.095(a), (b), and (c).

(b) The following provisions of the Local Government Code are repealed:

(1) Sections 203.041(c) and (h);

(2) Section 203.042(c);

(3) Section 203.043;

(4) Sections 203.044(c) and (d); and

(5) Sections 203.045, 204.008, and 205.007.

SECTION 21. (a) Except as provided by Subsection (b) of this section, Section 441.0011, Government Code, as amended by this Act, applies to a member of the Texas State Library and Archives Commission who is appointed before, on, or after the effective date of this Act.

(b) A member of the Texas State Library and Archives Commission who, before the effective date of this Act, completed the training program required by Section 441.0011, Government Code, as that law existed before the effective date of this Act, is only required to complete additional training on the subjects added by this Act to the training program required by Section 441.0011, Government Code. A commission member described by this subsection may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission held on or after December 1, 2019, until the member completes the additional training.

(c) Not later than March 1, 2020, the Texas State Library and Archives Commission shall promulgate a form as required by Section 441.1935, Government Code, as added by this Act.

(d) Not later than September 1, 2020, the Texas State Library and Archives Commission shall:

(1) adopt rules providing an application process and standards for transfer of title to local historical resources under Section 441.153(g), Government Code, as added by this Act; and

(2) develop a strategic plan for the state archives program as required by Section 441.1815, Government Code, as added by this Act.

(e) Not later than September 1, 2020:

(1) the Texas State Library and Archives Commission shall transfer custody and ownership of all legislative records, as defined by Section 441.180(6-a), Government Code, as added by this Act, to the Legislative Reference Library; and

(2) the Legislative Library Board shall create a list of preapproved depositories and adopt rules as required by Section 324.0086(b), Government Code, as added by this Act.

SECTION 22. This Act takes effect September 1, 2019.

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