CHAPTER 202. DESTRUCTION AND ALIENATION OF RECORDS
LOCAL GOVERNMENT CODE
TITLE 6. RECORDS
SUBTITLE C. RECORDS PROVISIONS APPLYING TO MORE THAN ONE TYPE OF
LOCAL GOVERNMENT
CHAPTER 202. DESTRUCTION AND ALIENATION OF RECORDS
Sec. 202.001. DESTRUCTION OF RECORDS. (a) A local government
record may be destroyed if:
(1) the record is listed on a 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) a destruction request is filed with and approved by the
director and librarian as provided by Section 203.045 for a
record not listed on an approved control schedule.
(b) The following records may be destroyed without meeting the
conditions of Subsection (a):
(1) records the destruction or obliteration of which is directed
by an expunction order issued by a district court pursuant to
state law; and
(2) records defined as exempt from scheduling or filing
requirements by rules adopted by the commission or listed as
exempt in a records retention schedule issued by the commission.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989.
Sec. 202.002. LITIGATION AND OPEN RECORDS REQUESTS. (a)
Regardless of any other provision of this subtitle or rules
adopted under it, a local government record the subject matter of
which is known by the custodian to be in litigation may not be
destroyed until the litigation is settled.
(b) Regardless of any other provision of this subtitle or rules
adopted under it, a local government record subject to a request
under Chapter 552, Government Code, may not be destroyed until
the request is resolved.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(90),
eff. Sept. 1, 1995.
Sec. 202.003. METHOD OF DESTRUCTION. (a) A local government
record may be destroyed by burning, shredding, pulping, or burial
in a landfill or by sale or donation for recycling purposes
except as provided by Subsection (b).
(b) Records to which public access is restricted under Chapter
552, Government Code, or other state law may be destroyed only by
burning, pulping, or shredding.
(c) A local government that sells or donates records for
recycling purposes shall establish procedures for ensuring that
the records are rendered unrecognizable as local government
records by the recycler.
(d) The director and librarian may approve other methods of
destruction that render the records unrecognizable as local
government records.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(90),
eff. Sept. 1, 1995.
Sec. 202.004. ALIENATION OF RECORDS. (a) A local government
record may 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 with the approval of the local
government's records management officer and after the expiration
of the record's retention period under the local government's
records control schedule.
(b) A local government record may not be sold or donated (except
for the purposes of recycling), loaned, transferred, or otherwise
passed out of the custody of a local government to any private
college or university, private museum or library, private
organization of any type, or an individual, except with the
consent of the director and librarian and after the expiration of
its retention period under the local government's records control
schedule.
(c) A records management officer or custodian may temporarily
transfer a local government record to a person for the purposes
of microfilming, duplication, conversion to electronic media,
restoration, or similar records management and preservation
procedures.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989. Amended by Acts 1995, 74th Leg., ch. 86, Sec. 28, eff.
Sept. 1, 1995.
Sec. 202.005. RIGHT OF RECOVERY. (a) The governing body may
demand and receive from any person any local government record in
private possession created or received by the local government
the removal of which was not authorized by law.
(b) If the person in possession of a local government record
refuses to deliver the record on demand, the governing body may
petition the district court of the county in which the person
resides for the return of the record. If the court finds that the
record is a local government record, the court shall order the
return of the record.
(c) As part of the petition to the district court or at any time
after its filing, the governing body may petition to have the
record seized pending the determination of the court if the
governing body finds the record is in danger of being destroyed,
mutilated, altered, secreted, or removed from the state.
(d) The director and librarian may demand and receive from any
person any local government record of permanent value in private
possession.
(e) If the person in possession of the local government record
of permanent value refuses to deliver the record on demand, the
director and librarian may ask the attorney general to petition
for the recovery of the record as provided by this section. As
part of the petition or at any time after its filing, the
attorney general may petition to have the record seized pending
the determination of the court if the governing body finds the
record is in danger of being destroyed, mutilated, altered,
secreted, or removed from the state.
(f) A local government record recovered as the result of a
petition by the attorney general shall be transferred to the
custody of the commission or, at the discretion of the director
and librarian, be returned to the local government that
originally had custody of the record.
(g) If a local government refuses to deliver custody of a record
to the commission as provided by Section 201.007, 201.008, or
203.050, the director and librarian may ask the attorney general
to petition for recovery of the record. If the court determines
that the director and librarian has acted in accordance with
Section 201.007, 201.008, or 203.050, as applicable, and with
regard to Section 203.050, the court finds that the survival of
the record is imperiled, the court shall order the record to be
transferred to the custody of the commission.
(h) If a governing body petitions a court for the recovery of a
record under Subsection (b) and prevails or if the attorney
general petitions a court for the recovery of a record under
Subsection (e) or (g) and prevails, the court shall award
attorney's fees and court costs to the prevailing party.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989.
Sec. 202.006. DESTRUCTION OF NONRECORD MATERIAL. (a) Material
that is not included in the definition of a local government
record and is described by Section 201.003(8)(A), (B), or (C) may
be disposed of at the discretion of the custodian or the creator
of the document, as applicable, subject to any policies developed
in each local government or elective county office regarding the
destruction.
(b) Extra identical copies of a local government record to which
public access is restricted under Chapter 552, Government Code,
or other state law may be destroyed only by burning, pulping, or
shredding.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(90),
eff. Sept. 1, 1995.
Sec. 202.007. PERSONAL LIABILITY. A custodian of local
government records, records management officer, or other officer
or employee of a local government may not be held personally
liable for the destruction of a local government record if the
destruction is in compliance with this subtitle and rules adopted
under it.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989.
Sec. 202.008. PENALTY: DESTRUCTION OR ALIENATION OF RECORD. An
officer or employee of a local government commits an offense if
the officer or employee knowingly or intentionally violates this
subtitle or rules adopted under it by destroying or alienating a
local government record in contravention of this subtitle or by
intentionally failing to deliver records to a successor in office
as provided by Section 201.006(a). An offense under this section
is a Class A misdemeanor.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989.
Sec. 202.009. PENALTY: POSSESSION OF RECORD BY PRIVATE ENTITY.
(a) A private college or university, a private museum or
library, a private organization of any other type, or an
individual commits an offense if the entity knowingly or
intentionally acquires or possesses a local government record. An
offense under this subsection is a Class A misdemeanor.
(b) It is a defense to prosecution under this section that a
private college, university, museum, or library, by agreement
with the commission under Subchapter J, Chapter 441, Government
Code, provides physical housing for a local government record the
title to which has been vested in the commission.
Added by Acts 1989, 71st Leg., ch. 1248, Sec. 1, eff. Sept. 1,
1989.