Untitled Texas Attorney General Opinion

THE ATTORNEY GENIC
OFTEXAS
The Honorable Dorman H. Winfrey Opinion No. H- 140
Director and Librarian
Texas State Library Re: Authority of Library
Box 2927 Capito,l Station and His torical Commis -
Austin, Texas 78711 sion to contract to pro-
vide network communica-
tions services to library
systems and methods of
Dear Mr. Winfrey: payment
You have requested an opinion regarding the communications network
in Texas presently linking libraries within a library system, Linking systems,
and linking systems with the Commission. The network has been heretofore
operated with federal funds which will soon be cut off. You wish to know if
the Commission might legally finance the continued service by contractual
arrangements with the various systems. The “service” you contemplate, we
are informed, is the existing service of providing and financing a communi-
cations clearing-house system so that all participating libraries can be advised
of, and have access to, all materials available in other participating libraries.
Under § 3 of Article 5446a. the Texas State Library and Historical
Commission (hereafter “the Commission”) is charged with a duty to establish
and develop a state library system, defined in $2(5) as:
“a network of library systems, 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 collect-
ively the entire population of the state;” (emphasis added)
While the scheme of the Act places administrative responsibility in the
State Librarian (Cf. Article 5435, V. T. C. S.), it is the Commission to which
the delegated legislative authority in the field is given. Certain important
p. 665
The Honorab,le Dorman H. Winfrey, page 2 (H-140)
libraries are designated “major resource centers” for library “systems”
which include other, smaller libraries. There are several “systems, ”
each with a major resource center.
The Act specifically authorizes agreements between the governing
bodies of governmental subdivisions within major resource system areas
and between such governing bodies and those of member libraries of major
resource systems. Section 8(a), (b), (c). Section 8(d) of the Act specifically
authorizes contracts and agreements by the Commission and the governing
body of a major resource center, on the one hand, with the governing bodies
of other libraries for the provision of specialized resources and services to
the major resource system. However, the Act does not expressly authorize
the Commission to contract with the governing bodies of major resource
center libraries to provide services to those libraries.
We must assume, however, that the Legislature intended the Commis-
sion to discharge its primary task: to establish and develop a network of
library systems to serve collectively the entire population of the state. If
contractual financial arrangements with major resource centers (major
libraries) are necessary for that purpose, we think the power of the Commis-
sion to enter such contracts (which is not specifically prohibited) is neces-
sari,ly implied. And if the Commission is authorized to enter a contract, it
is authorized to exchange a consideration for the consideration it expects to
receive. The consideration contemplated by your inquiry is the communica-
tion “service” to be supplied. We do not believe such contracts between the
Commission and major resource centers, whichfurther and develop the sys-
tem, would be prohibited by the Act. [See the Interlocal Co-operation Act,
Article 4413 (32c), V. T. C. S. ; the Interagency Cooperation Act, Article 4413
(32), V. T. C. S. 1.
In the context of the situation presented here, we answer your first
question in the affirmative. The Commission, in our opinion, may properly
contract with major resource centers to provide the contemplated communi-
cations “service” in return for payment therefor.
Your second inquiry asks, “may the governing bodies [of major re-
source center libraries] reimburse the Commisa.ion for [such] services
rendered [from] . . . State grant-in-aid funds, . . . granted to the govern-
ing bodies from Library and Historical Commission appropriation Item [14]? ”
p. 666
The Honorable Dorman fi. Winfrey, ~page 3 (H-140’)
Items 8 and 14 of the appropriation to the Library and Historical
Commission (H. B. 139, Act, 1973, 63rd Leg.) make the following appro-
priation for the fiscal years ending August 31, 1974 and August 31, 1975:
“For the Years Ending
August 31, August 31,
1974 1975
“8. Consumable supplies
and materials, current
and recurring operating
‘expense ,~ 196,186 194,012
04 . . . .
“14. Library Systems Act
funds for cash grants
to c’ities Andy counties
in Texas 50,000 50,000”
Section 14 of Article 5446a. V. T. C. S., authorizes State grants within
the limitation of funds appropriated to establish various library programs
listed therein.
Section 17 of Article 5446a provides:
“Sec. 17. (a) The Commission may use funds
appropriated by the Texas ‘Legi~slature for personnel
and other administrative expenses necessary to carry
out the provisions of the Act.
“(b) Libraries and library systems may use state
grants for materials; for personnel, equipment, and
administrative expenses; and for financing programs
which enrich the services and materials offered a
community by its public library.
p. ‘667
The Honorable DormanH. Winfrey, page 4 (H-140)
“(c) State grants t-nay not be used for site
acquisition, construction, or for acquisition,
maintenance, or rental of buildings, or for pay-
ment of past debts.
I
“(d) State aid to any free tax-supported
public library is a supplement to and not a replace-
ment of local support.
“(e) Exclusive of the expenditure of funds
for administrative expenses as provided in Section
17(a) of this Act, all funds appropriated pursuant to
Section 14 of this Act shall be apportioned among the
major resource systems on the following basis:
“Twenty-five percent of such funds shall be
apportioned equally to the major resource systems
and the remaining seventy-five percent shall be
apportioned to them on a per capita basis determined
by the last decennial census. ” (emphasis added)
If the service contemplated is one which the libraries might legiti-
mately purchase (using grant-in-aid funds) fromaprivate supplier, there
is no apparent reason that such funds could not be used to purchase the
same service from the Commission (assuming the Commission has the
authority to provide the service). Subsection (b) of Section 14 of Article
5446a permits libraries and library systems to spend such funds for pro-
grams which enrich the services and material offered a community by its
public library, and it seems to us that the contemplated communication
program would do so. We therefore answer “yes ” to the second inquiry also.
Our foregoing answers have made your third question moot. In response
to your fourth and last question, funds received by the Commission in such an
exchange should be credited to the appropriation item from which the Commis-
sion financed the services. We assume that some, if not all, of the libraries
composing the “systems” are units of a State Agency. Section 25 of Article V
of the current General Appropriation Act provides (emphas’is added):
p. 668
The Honorable Dorman H. Winfrey, page 5 (H-140)
“Sec. 25. REIMBURSEMENTS AND PAYMENTS.
Any reimbursements received by an agency of the State
for authorized services rendered to any other agency of
the State Government, and any payments to an agency of
the State Government made in settlement of a claim for
damages, are hereby appropriated to the agency of the
State receiving such reimbursements and payments for
use during the fiscal year in which they are received.
“The reimburs’ements and payments received shall
be credited by the Comptroller to the agency’s current
appropriation items or accounts from which the expendi-
tures of like character were originally made. . . .I’
We think the “service” contemplated might accurately be characterized
as a necessary part of the establishment~,and development of a network of
library systems to serve collectively the,entire ,population of the state, that
the cost of operating such a service could legitimately be considered a “cur-
rent and recurring operating ~expense” within the meaning of item 8 of the
appropriation bill, and that the expenditure of funds from that appropriation
item for such a service is amply authorized by pre-existing law.
We therefore conclude that it is legally permissible for the Commission
to initially use funds from item 8 to provide the service and to replenish the
item 8 account with any funds paid by the libraries for the service.
SUMMARY
The Library and Historical Commission may,
under the Library Systems Act, enter into contracts
with the governing bodies of major resource centers,
if necessary to establish and develop a network of
library systems to serve collectively the entire pop-
ulation of the state. If the operation and maintenance
of a communications “service” by the Commission
p. 669
The Honorable Dorman H. Winfrey, page 6 (H-140)
meets such criteria, the contracting libraries may
pay for the service with funds appropriated for grants-
in-aid.
Very truly yours,
4%
L. HILL
c/ Attorney General of Texas
I
DAVID M. KENDALL, Chairman
Opinion Committee
p. 670