Rare Book Monthly

Articles - August - 2006 Issue

Texas Sues Private Owner for Old State Documents

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Here is what the Texas State Library and Archives is doing - suing. They want the material back. We don't know if they have any suspicions they haven't let on, but presuming they are as lost as we on the question of whether the documents made their way to the Davises through theft or legal transactions, they still want them back. Now the Texas Library has access to some tools not available to the rest of us when our books disappear. Preservation and Management of State Records and Other Historical Resources Code section 441.192 (look it up if you don't believe me) provides that the librarian "may demand the return of any state government record of permanent value in the private possession of any person."

Think about that one! Talk about an unfair advantage. These records have obvious permanent value, so the state can just demand them. The statute doesn't require that the documents be improperly obtained. The state could sell them to a collector and then demand them back. Presumably they could keep the money. The statute doesn't say anything about returning money for valuable records they sold. There's an interesting new source of revenue for states facing budget deficits.

So what can the Davises do? Well, like the state, they can get themselves a clever lawyer. Here is how they are defending their ownership. Note that the statute refers to "any state government record." Well, say the Davises, these are not state government records. Most pertain to the Republic of Texas, not the State of Texas, or even the Mexican Province of Texas. The state has no more right to these documents under this statute, say the Davises, than they do to, say, prehistoric arrowheads found on private property.

That's a clever argument, though the state still maintains they are state records. We'll leave this one to the courts to decide. It's an unusual situation anyway. Even if they were State of Texas records, this would still be an uncommon situation. What remains open are issues concerning most documents which may or may not have been stolen long ago, and are now in the hands of innocent buyers. It is so easy to decide when there is a good guy and a bad guy. It's really tough when both guys are good. I have no great insights other than to recommend that when you purchase your next rare book, you get clear documentation of the sale. If it has a library or government stamp, make sure it has a deaccession one too. And if it is a valuable Texas government record, just say no.

Here is a link to the official Texas Missing List: http://www.tsl.state.tx.us/arc/missingintro.html

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