Are a Texas governor's office records public records, and can a governor take them when leaving office?

Texas AG Opinion JM-1013: Are a Texas Governor's Office Records Public Records?

Plain-English summary

For years, Texas governors had followed an unwritten habit of packing up most of their administration's records and taking them out of state custody when they left office. The Director of the Texas State Library, the official responsible for preserving the state's public records, wanted to know whether that tradition was actually lawful. He put three questions to the Attorney General: are the governor's office records public records at all; if so, does hauling them off at the end of a term break the law; and what can the State Library do to get them back?

On the first question, the answer was a clean yes. Records that the governor's office creates or receives while doing the office's statutory work fit squarely inside the definition of "public record" in the Government Code and the definition of "public records" in the Open Records Act. That means they are public information the public can see during business hours unless one of the Open Records Act's specific exceptions applies, and the law requires the custodian to preserve them. The same records also count as "governmental records" under the Penal Code.

The second question, whether removing them is a crime, got a more careful answer. Yes, the Penal Code (section 37.10) makes it an offense to intentionally remove a governmental record in a way that impairs its availability, and section 12 of the Open Records Act punishes the willful, unauthorized removal of public records. But whether a particular governor's removal of particular records actually crossed that line depends on the facts: was the removal intentional or willful, and was it unauthorized, or did some other law in effect at the time permit it? The Attorney General was blunt that his opinion process is not built to resolve disputed questions of fact, so he could not declare any specific past removal a crime in the abstract.

The third question was about remedies. The Government Code lets the State Library and Archives Commission demand physical custody of public records that a state official has determined are no longer in current use. Officials get some discretion to decide what is still in current use, but the Attorney General made clear they cannot use that discretion to sit on records that are not in current use. Permanent records generally cannot leave state custody at all, and records can only be destroyed with the sign-off of the records management division director and the librarian. If the official and the commission disagree about who should hold a given record, the statute sends that dispute to the Attorney General to decide.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas open-records and records-retention law has been recodified since 1989. The Open Records Act (article 6252-17a, V.T.C.S.) was recodified as the public-information provisions in chapter 552 of the Government Code, its criminal provisions and exceptions have been revised, and the State Library and Archives Commission provisions in chapter 441 (including the records-management and custody sections) have been amended and renumbered. The Penal Code tampering-with-a-governmental-record offense in section 37.10 has also been amended. Anyone dealing with the status or removal of official records today should consult the current chapter 552 and chapter 441 provisions and the current Penal Code rather than the 1989 article and section numbers here.

Who this opinion affected (as of 1989)

The Texas State Library and Archives Commission: The opinion confirmed the commission's authority to demand custody of public records no longer in current use and its recourse to the Attorney General to resolve custody disputes.

The governor's office and other state officials: The opinion told them their working records are public and governmental records that must be preserved, and that they cannot withhold from the commission records that are not in current use.

Journalists, researchers, and the public: The opinion confirmed that gubernatorial records are subject to the Open Records Act and available unless a specific exception applies.

Common questions

Are records from the Texas governor's office public records?
Yes. In this opinion the Attorney General concluded that records the governor's office creates or receives in carrying out its statutory duties are public records under both the Government Code (section 441.031(5)) and the Open Records Act, and are governmental records under the Penal Code.

Can a governor take office records home at the end of a term?
Removing them may violate Penal Code section 37.10 or section 12 of the Open Records Act, but only if the removal was intentional or willful and unauthorized. Whether a specific removal broke the law depends on the facts, which the Attorney General's opinion process cannot resolve.

Are gubernatorial records open to the public?
Yes, they are public information available during business hours unless one of the Open Records Act's specific exceptions protects them, and the custodian must preserve them.

How can the State Library get removed records back?
The commission may demand custody of public records a state official has determined are not in current use (section 441.002(g)(S)). If there is a disagreement over proper custody, the Attorney General decides (section 441.002(i)).

Background and statutory framework

Chapter 441 of the Government Code governs the Texas State Library and Archives Commission and the preservation of the state's public records; sections 441.031 through 441.039 govern the retention of public records. Section 441.031(5) defines "public record" as a document or other material, regardless of physical form, made or received according to law or in connection with the transaction of official business, excluding library or museum reference/exhibition material, extra convenience copies, and stocks of publications. Records received or created by the governor's office in carrying out its statutory duties fall within this definition.

The Open Records Act (article 6252-17a, V.T.C.S.) defines "public records" in section 2(2) as the portion of documents and other materials containing public information, and section 3(a) makes all information collected, assembled, or maintained by governmental bodies pursuant to law or in connection with official business public information, available to the public during business hours subject only to the act's specific exceptions. Governor's office records are subject to the act and may be withheld only under a specific exception (Open Records Decision No. 116 (1975); see also Open Records Decision Nos. 241 (1980), 212 (1978), 177 (1977)), and section 5(a) requires the custodian to preserve records subject to the act (see also section 12, the criminal penalty for removal of public records).

On removal, Penal Code section 37.10 makes it an offense to, among other things, intentionally remove or otherwise impair the verity, legibility, or availability of a governmental record (subject to an exception where the record is destroyed under legal authorization), and section 37.01(1)(A) defines "governmental record" broadly as anything belonging to, received by, or kept by government for information. Governor's office records qualify. Whether removing specific gubernatorial records from state custody at the end of an administration violates section 37.10(a)(3) depends on the facts and on whether any other law authorized the removal; a violation requires proof of an intentional removal impairing availability and a culpable state of mind. The same fact-dependence applies to section 12 of the Open Records Act, which requires proof of a willful, unauthorized removal (Attorney General Opinions H-808 (1976), JM-265 (1984)). The Attorney General emphasized that the opinion process is not intended to resolve disputed questions of fact.

On remedies, section 441.002(g)(S) authorizes the commission to demand and receive from a state officer any records relating to the history of Texas not connected with or necessary to the officer's current duties, granting authority to demand custody of public records not in current use. Section 441.010(d) lets a state official turn records over to the library and gives officials discretion to determine when records are in current use, but the Attorney General concluded that, read with section 441.002(g)(S) and the overall purpose of chapter 441, section 441.010(d) does not let officials refuse to give the commission public records that are not in current use. Records not in current use must be classified as permanent or subject to destruction; permanent records generally cannot be transferred out of state custody (Attorney General Opinion R-523 (1975)), and public records may be destroyed only with the approval of the records management division director and the librarian (section 441.035(d)). Chapter 441 presumes official cooperation (sections 441.032(b), 441.034). Where there is a disagreement over proper custody of records under section 441.002(g)(S), the Attorney General decides (section 441.002(i)), and proper custody depends on the facts and on any other statutes addressing the specific records.

Citations

Statutory authority:

• Gov't Code § 441.031(5) (definition of "public record"); § 441.002(g)(S) (commission may demand records not in current use); § 441.002(i) (Attorney General resolves custody disputes); § 441.010(d) (officials may turn records over; current-use discretion); § 441.035(d) (destruction requires director and librarian approval); §§ 441.032(b), 441.034 (records management with official cooperation)
• Tex. Rev. Civ. Stat. art. 6252-17a (Open Records Act), § 2(2) (definition of "public records"); § 3(a) (public information subject to exceptions); § 5(a) (custodian must preserve records); § 12 (criminal penalty for removal of public records)
• Penal Code § 37.10 (tampering with or removing a governmental record); § 37.01(1)(A) (definition of "governmental record")

Cases:

• None cited.

Related opinions:

• Open Records Decision Nos. 116 (1975), 241 (1980), 212 (1978), 177 (1977); Attorney General Opinions H-808 (1976), JM-265 (1984), R-523 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1013
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1013.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

February 2, 1989

Honorable William D. Gooch
Director and Librarian
Texas State Library
Lorenzo De Zavala State Archives and Library Bldg.
P.O. Box 12927
Austin, Texas 78711

Opinion No. JM-1013

Re: Whether records created and/or received by the Governor's Office are public records within the meaning of the Open Records Act, article 6252-17a, V.T.C.S., and of section 441.031(5) of the Texas Government Code. (RQ-1579)

Dear Mr. Gooch:

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

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

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

3. If the records of the Governor's Office are public governmental records, what legal action(s) can the Texas State Library, as the agency responsible for the management and preservation of public records, initiate to obtain custody of any such public records that have been removed from the custody of the state?

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

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

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

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

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

"Public records" means the portion of all documents, writings, letters, memoranda, or other written, printed, typed, copied, or developed materials which contains public information. (Emphasis added.)

Section 3(a) provides:

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

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

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

(a) A person commits an offense if he:

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

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

(3) removes, or otherwise impairs the verity, legibility, or availability of a [governmental record].

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

(c) An offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the third degree. (Emphasis added.)

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

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

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

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

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

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

Section 441.010(d) of the Government Code provides:

A state, county, or other official may turn over to the state library for permanent preservation in the library an official book, record, document, original paper, map, chart, newspaper file, or printed book not in current use in the official's office. The director and librarian shall give the official a receipt for an item turned over under this subsection. (Emphasis added.)

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

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

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

As indicated, section 441.002(g)(S) authorizes the commission to demand custody of public records that are not in current use. Section 441.002(i) provides:

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

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

SUMMARY

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

Such records also constitute "governmental records" within the meaning of sections 37.01(1)(A) and 37.10(a)(3) of the Texas Penal Code. Section 37.10(a)(3) prohibits, among other things, the intentional, unauthorized removal of governmental records. Whether the removal of specific gubernatorial records from the custody of the state at the end of a gubernatorial administration violates section 37.10 depends on proof of the elements of the criminal offense described in section 37.10.

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

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

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

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

Prepared by Jennifer S. Riggs
Assistant Attorney General