Sale of Government Records
The problem
Texas has lost hundreds of official historical government records, particularly
from the Colonial, Republic, and early Statehood periods, from its public
archives and many have ended up in private collections. The Texas State
Library and Archives Commission (TSLAC) is deeply concerned about the
number of official state and local government records, many that once
resided in the Texas State Archives (see Missing List information at www.tsl.state.tx.us/arc/missingintro.html)
that have begun to appear for sale in auction catalogs and on eBay and
other commercial websites. The disappearance of government records into
private hands deprives the public of access to important historical information
that helps us understand the history of our state and nation. Government
records document government actions for the review of the citizens. The
inappropriate transfer of such records into private hands greatly restricts
access to them which in turn hampers government accountability.
State law
Government records belong to the citizens of the communities that create
or receive them. It is illegal for government records to be sold or alienated
from public custody unless done in accordance with established, legal
retention procedures. The following statutes govern the recovery of public
records in Texas.
Texas
Government Code, § 441.192. RIGHT OF RECOVERY
(a) The governing body of a state agency may demand the return of any
state government record in the private possession of a person if the removal
of the state record from the state agency or the agency's predecessor
was not authorized by law.
(b) The director and librarian may demand the return of any state government
record of permanent value in the private possession of any person.
(c) If the person in possession of the state government record refuses
to deliver the record on demand, the director and librarian or the governing
body of a state agency may ask the attorney general to petition a district
court in Travis County for the recovery of the record as provided by this
section. If the court finds that the record is a state government record,
the court shall order the return of the record to the custody of the state.
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 director and librarian or governing body finds the
record is in danger of being destroyed,
mutilated, altered, secreted, or removed from the state.
(d) A state government record recovered under Subsection (c) shall be
transferred to the custody of the commission or the state agency that
originally demanded the return of the record.
(e) If the attorney general recovers a record under Subsection (c), the
court shall award attorney's fees and court costs to the attorney general.
Texas
Local Government Code, § 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 petitionor 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.
Action requested
If you learn of Texas government records being sold on eBay or through
other means, please contact Commission staff via e-mail
at or by phone at 512-463-5467.
Additional information
The Council of State Archivists (CoSA) has developed a web page devoted to the issue of sales of public records. Visit http://www.statearchivists.org/issues/publicrecordssales/index.htm for more information.
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