Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORXET GENERAL
OF TEXAS
June 23, 1988
Mr. William D. Gooch Opinion NO. JM-921
Director and Librarian
Texas State Library Re: Whether the Library and
P. 0. Box 12927 Archives Commission may grant
Austin, Texas 78711 funds to certain regional
library systems (RQ-1298)
Dear Mr. Gooch:
You ask our opinion about the following questions:
(1) Is the Library and Archives Commission
authorized to grant funds to a reaional
library svstem which has as members libraries
of private, religiously-affiliated elementary
and secondary schools?
(2) Is the Library and Archives Commission
authorized to grant funds to a reaional
librarv svstem which has as members libraries
of private religiously-affiliated colleges
and universities?
(3) Is the Library and Archives Commission
authorized to grant funds to a reaional
library svstem which has as members libraries
belonging to 'for-profit' entities?
Before answering your questions, we will review the nature
of "regional library systems" and the role of the State
Library and Archives Commission in fostering such entities
under the Library Systems Act, sections 441.122 through
441.138 of the Government Code (formerly article 5446a,
V.T.C.S.).
The State Library and Archives Commission (the
Commission) **shall establish and develop a state library
system." Gov't Code, 5 441.123. The act defines the "state
library system" as
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Mr. William D. Gooch - Page 2 (JM-921)
a network of librarv svstems, interrelated by
contract, for the purpose of organizing
library resources and services for research,
information, and recreation to improve
statewide library service and to serve
collectively the entire population of the
state. (Emphasis added.)
Gov't Code, § 441.122(14). A "library systeml' 'is
two or more public libraries cooperating in a
system approved by the commission to improve
library service and to make their resources
accessible to all residents of the area the
libraries serve. (Emphasis added.)
Gov't Code, § 441.122(g). A "public library" is a library
that is operated by a single public agency or
board, that is freely open to all persons
under identical conditions, and that receives
its financial support in whole or in part
from public funds. (Emphasis added.)
Gov't Code 5 441.122(12). The act defines several different
kinds of public libraries which participate in "library
systems." We summarize the characteristics of these
libraries as follows:
(1) a 'community library' is
. a small
public library serving a population of less
than 25,000 that is a member of a library
system interrelated to a major resource
center:
(2) an 'area library' is a medium-sized
public library serving a population of 25,000
or more that has been designated as an area
library by the [Library and Archives
Commission] and is a member of a library
system interrelated to a 'major resource
center';
(3) a 'major resource center' is a large
public library serving a population of
200,000 or more within 4,000 or more square
miles that is designated as the central
library of a major resource system for
referral service from area libraries in the
system, for cooperative service with other
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Mr. William D. Gooch - Page 3 (JM-921)
libraries in the system, and for federated
operations with other libraries in the
system. (Emphasis added.)
See Gov't Code 5 441.122(3), (5), and (10). See g&Q
Attorney General Opinion JW-183 (1984).
The Commission may establish and develop "major
resource systems," which the act defines as
network[s] of librarv svstems attached to a
major resource center, consisting of area
libraries joined cooperatively to the major
resource center and of community libraries
joined cooperatively to area libraries or
directly to the major resource centers.
(Emphasis added.)
Gov't Code 5 441.122(11).
Finally, a "regional library-system" can be established
whenever
[t]he governing bodies of two-thirds of the
member libraries of a maior resource svstem
. . . elect, for the purpose of administering
the receipt and dispersal of services
. . . within their area, to form a reaional
librarv svstem that includes all libraries
that are members of the maior resource
svstem. (Emphasis added.)
Gov't Code 5 441.131(a). Thus, a reaional librarv svstem is
composed of maior resource systems, which in turn are
composed of the statutorily defined types of public
libraries affiliated with a maior resource center or large
public library.
The act permits the governing body of a reaional
librarv svstem to establish a non-profit corporation
pursuant to article 1396-1.01 et. se ., V.T.C.S., to
administer the regional library system or to contract with a
private business to administer the system. Gov't Code
§ 441.133.
The act also authorizes the Commission to establish a
program of state grants, including:
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Mr. William D. Gooch - Page 4 (JM-921)
(1) system operation grants, to strengthen
major resource system services to member
libraries and regional library system
services to member libraries, including
grants to reimburse other libraries for
providing specialized services to major
resource systems and regional library
systems;
(2) incentive grants, to encourage
libraries to join together into larger units
of service in order to meet criteria for
major resource system membership or regional
library system membership:
(3) establishment grants, to help
establish libraries that will qualify for
major resource system membership or regional
library system membership in communities
without library service: and
(4) equalization grants, to help libraries
in communities with relatively limited tax-
able resources to meet criteria for major
resource system membership or regional
library system membership.
See Gov't Code, 5 441.135.
Your questions present a threshold issue: whether the
Library Service Act permits non-nublic libraries to be
members of major resource systems, the constituent elements
of a regional library system. Section 441.127 of the
Government Code requires that a library applying for
membership in a major resource system must be accredited by
the Library and Archives Commission as having met the
accreditation standards established by the Commission. The
act defines "accreditation of libraries" to mean "the
evaluation and rating of public libraries and library
systems according to commission accreditation standards" and
"accreditation standards" to mean "the criteria established
by the commission that a library must meet to be accredited
and eligible for membership in a major resource system."
(Emphasis added). Gov't Code !j441.122(l), (2). According
to these definitions, only a public library can be
accredited, and accreditation is a statutory prerequisite
for membership in a major resource system. Regional library
systems in turn can be composed g~ly of major resource
systems. In other words, the statutes unambiguously
restrict the membership of regional library systems to
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Mr. William D. Gooch - Page 5 (JM-921)
public libraries. Thus, the legislature has not authorized
the participation of non-public libraries in any of the
ventures of a regional library system as members of the
svstem. Your funds may therefore go only to regional
library systems in compliance with the statute.
We note that section 441.128(d) does permit the
governing body' or managing authority of a
regional library system ltol enter into
aoreements with the governing bodies of other
libraries, including other public libraries,
school libraries and media centers, academic
libraries, technical information and research
libraries, or systems of those libraries, to
provide or receive specialized resources and
services. The Commission shall coordinate
and encourage the dissemination of special-
ized resources and services and may adopt
rules for the contracts and agreements auth-
orized by this subsection. (Emphasis added.)
Gov't Code, 5 441.128(d).
h
We conclude that this language represents authorization
by the legislature sufficient to permit regional library
systems to enter into contracts with non-public libraries
for the purchase or sale of lVspecialized resources and
services." Because such arrangements would be in the nature
of contracts necessarily based on adequate consideration to
the public, they would not be unconstitutional donations of
public funds.
SUMMARY
Regional library systems established
pursuant to the Library Systems Act may have
as members only public libraries as defined
in section 441.122(g), (12) of the Government
Code. Regional library systems may contract
with non-public libraries for the purchase or
sale of specialized resources and services.
Gov't Code, § 441.128(d).
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J /h
Very truly yo
A '.-
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE~ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
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