TITLE 13. CULTURAL RESOURCES

PART 2. TEXAS HISTORICAL COMMISSION

CHAPTER 16. HISTORIC SITES

13 TAC §16.13

The Texas Historical Commission (Commission) adopts new §16.13 of Title 13, Part 2, Chapter 16 of the Texas Administrative Code (TAC), relating to Historic Sites. The rule is adopted with changes to the proposed text published in the August 16, 2019, issue of the Texas Register (44 TexReg 4273) as part of the Commission's overall effort to clarify language in order to implement necessary updates, additions and changes to more precisely reflect the procedures of the historic sites division (HSD). This rule will be republished.

The rule is in response to the passage of HB 1422 (for Texas Government Code §2175.909) that authorizes agencies with curatorial collections and an officially adopted deaccession policy to sell deaccessioned items under the State Surplus Property program. It requires that all proceeds from the sale of deaccessioned collection items be deposited to a dedicated agency account "for the care and preservation of the agency's qualifying collection."

HSD currently follows the deaccession policy outlined in the HSD Collections Management Policy and 13 TAC §29.5, Disposition of State Associated Collections. HSD staff are seeking to formalize the provisions of Texas Government Code §2175.909 as they relate specifically to the final disposition of deaccessioned historic furnishing and fine arts collections managed by HSD.

There were no comments received during the posting period.

Section 16.13 of TAC Title 13, Part 2, Chapter 16, relating to Historic Sites, is adopted under the authority of Texas Government Code §442.005(q), which provides the Commission with the authority to promulgate rules to reasonably affect the purposes of the Commission; Texas Government Code §442.106, which allows the Commission to operate or grant contracts to operate concessions on the grounds of historic sites; Texas Government Code §442.072(c), which allows the commission to enter into agreements; and Texas Government Code §§442.101(a), 442.101(b), and 442.101(c), which allow the Commission to adopt policies and procedures by rule to contract for services necessary to carry out its responsibilities regarding historic sites.

Texas Government Code §§442.072(c), 442.101(a), 442.101(b), 442.101(c), and 442.106 allow the commission to contract for services, and specifically for concessions, necessary to carry out its responsibilities regarding historic sites. No other statutes, articles, or codes are affected by this new rule.

§16.13.Management of Collections.

(a) Ownership. The Commission is responsible for the management of archeological, archival, architectural, historic furnishing, and fine arts collections associated with historic sites overseen by the Commission. The Commission is granted authority over these collections by this section and §29.7 of this title (relating to State Associated Collections).

(b) Governance. Statutory and administrative authority over state-owned collections that are managed by the Commission is established in Texas Natural Resources Code §§191.051, 191.058, 191.091, and 191.092; Texas Government Code §§442.007, 442.075, and 2175.909; and in Chapters 26 and 29 of the Texas Administrative Code. Operational and procedural requirements related to the care and management of state-owned collections overseen by the Commission are outlined in the Commission's Collections Management Policy (CMP).

(c) Deaccessioning. The Commission recognizes the special responsibility associated with the receipt and maintenance of objects of cultural, historical, and scientific significance in the public trust. The decision to deaccession state-associated held-in-trust objects and collections is the responsibility of the Commission and is governed by this section and §26.5 of this title (relating to Antiquities Advisory Board).

(d) Final disposition of deaccessioned collections. Following confirmation that a collection object is not subject to any conditions established at the time of acquisition that may affect its disposition and that there is sufficient documentation to assure clear title to the object, a deaccessioned collection object will be disposed of in accordance with this section. All efforts will be made to contact the original donor to provide notification of pending collections disposition. In accordance with U.S. income tax policy, the Commission is not able to return deaccessioned objects to their original donors or donors' estates.

(1) Transfer or exchange. A deaccessioned collection object may be offered for transfer or exchange to another public institution within the State of Texas. Any such transfer or exchange will occur only on the written understanding that the object must remain within the public domain for a period of ten years. Recipient institutions will incur all transportation costs, unless otherwise agreed, and are expected to provide appropriate preservation and/or exhibit facilities.

(A) Qualified institution. Recipient institutions must have an established collections policy. The collection object(s) being transferred should fall within the recipient institution's scope of collections and the objects should be candidates for exhibition or study within the institution.

(B) Object title. Title to deaccessioned objects will be transferred along with the deaccessioned collection(s) to the recipient institution. In the event that the recipient institution is unwilling or unable to appropriately maintain the transferred collection(s) for the requisite ten years, title will revert back to the Commission and the Commission will assume responsibility for managing the objects' final disposition.

(2) Sale. If a deaccessioned collection object cannot be transferred or exchanged, it may be sold as a means of disposition, preferably by public auction, in consultation with the Texas Facilities Commission and following the provisions outlined by Texas Government Code §2175.909 (relating to Sale of Certain Historic Property; Proceeds of Sale).

(A) Coordination with the Texas Facilities Commission (TFC). The Commission will work with the TFC to ensure that all sales of deaccessioned collection items will be most advantageous to the state under the circumstances. The Commission will also provide the TFC all documentation necessary for verification that the deaccession of the item is appropriate under the Commission's written policy governing the care and preservation of the collection. The Commission will report any sale to the TFC, including a description of the property disposed of, the reasons for disposal, the price paid for the property disposed of, and the recipient of the property disposed of.

(B) Vendor qualifications. When selecting a vendor to sell the deaccessioned collection(s) by competitive bid, auction, or direct sale to the public, the Commission must publish a Request for Qualifications (RFQ) to ensure that the sale is conducted by a qualified vendor. Selection of the vendor should be the most advantageous to the state under the circumstances.

(C) Appraisal. Objects whose estimated fair market value could potentially exceed $500.00 must be appraised by a qualified, independent appraiser. Objects whose estimated fair market value could potentially exceed $25,000.00 must be appraised by two separate qualified, independent appraisers.

(D) Dedicated account. The Commission shall create a dedicated fund in the general revenue fund for the deposit of any money resulting from the sale of deaccessioned items. The Commission must ensure that money in the fund is appropriated only for the purposes prescribed by Texas Government Code §2175.909(f) including the care and preservation of the Commission's qualifying collection.

(3) Assignment to other historic site operations. If a deaccessioned collection object cannot be transferred or exchanged, it may also be made available for other operational purposes within the Commission. The deaccessioned collection object may be used for interpretive programming, exhibition props, restoration of another collection item, or similar purposes.

(4) Destruction. Disposal of a collection object by destruction is the final recourse and is permitted under the following circumstances:

(A) all reasonable efforts were made to dispose of the object through other means;

(B) the object is environmentally hazardous and poses a danger to other collections or staff; and

(C) the object has no residual heritage, preservation, or market value to the Commission.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 8, 2020.

TRD-202000069

Mark Wolfe

Executive Director

Texas Historical Commission

Effective date: January 28, 2020

Proposal publication date: August 16, 2019

For further information, please call: (512) 463-7948