‘ .December 22, 1950.

Miss Doris H. Connerly Acting State Librarian Texas State Library Austin, Texas

. Dear Miss‘

Connerly: Your request OpinionNo. V-1139. Re: Fiscal year appropriation from which to pay for’

microfilm copies of newspapers ordered for the State Library under mitted facts.
for an opinionreads as follows: the sub-

“For severalyears, the Texas State Li-

.._ . brary -has been orderingmicrofilm copies of newspapers. These have been contractedfor: (1)’ Back files’ofnewspapersat .fixed amounts ” ,- (2) : ‘. On annual basis so much per foot,

. : paid by the year :

. . (3) On an annual basis so much per foot,

paid by the month. * “Attached are photostat copies of letters which the State Library sends out each year in advance of renewal orders that are placed by

.. the fiscal year.

“The Texas State Library. is of the opinion that there is no difference In these annual orders and those placed on an annual basis for newspapers in print and paid for In advance, and that~ the invoices coveringmicrofilmorders can be paid on the annual basis from funds of the fiscal year in which they are placed regardless of whether microfilmsare receivedwithin the fiscal year or after the close of”theyear, and regardless of whether they are paid by the foot each month or whether contractedfor several years of back files at a fixed amount.:

Miss Doris H. Connerly - Page 2 (V-1139)

"On the other hand, it is the opinion of the ComDtrollertsDeDartment. Claims Division, (1)

‘. (2) Back files of newspapers contracted

for must be paid for out of the appropriation of the fiscalyear in which the work was done regardless of the fiscalyear in which the contract was made Invoices can be paid only in the fi'scal year in which the work was actually done when quoted by the foot and paid by the month for the reason that they are of the opinion, that the item of cost is a service or labor .charge. DYour opinion is necessary on account of the conflictingviews of the departments. Plea& advise which is right."

bat this is a service charge and

: -, You:have advised us that the term "on an annual basis" contained in your requestmeans.'*on a fiscalyear basis.” Item 

### 15 of the appropriationsfor the support and maintenanceof the Texas State Library is an appropriation of Q25,OOO for each fiscal year of the current biennium for l'books,

subscriptions,

memberships,

maps, bind- .ing,book repairs,preparationfor bindingmicrofilms, microfilming." pate 1281.) (Acts 5lst Leg., R.S. 1949, ch. 615, at

This office has repeatedlyheld that supplies i&ended for use during a certain fiscalyear must be purchased from an appropriationfor that year and that an appropriationfor one fiscal year may not intentionally be used to purchase supplieswhich are to be consumedduring a succeedingfiscal year. Att'y Gen. Ops. O-2380 (19401, 0-6011 (19441,o-6883 (1945). Ho>rever, we have recognized that an exception to this rule exists in the case of so- b,
. called "capitalassets" or supplieswhich from their nature will not be entirelyused or 'consumed during a brief period of time, but may be continuously used after the year in which they were purc&ased. 0-6011 (1944). Att'y Gen. ops. o-2631 (19401,. -

Miss Doris H. Connerly ,-Page 3 (V-1139)

. ”

*

. : I~ We quote from Opinion o-2631 as follows:

:. "T&cardinal rule is that money appropriated to a department or institutionto be expended for supplies to be used and consumed during a given fiscal year, may not in any event be expended for supplies intended for use and consumptionduring another fiscal year. As pointed out in our OpinionNo. O2380, ourappropriations, while made for two years -bythe AppropriationAct, are nevertheless specificallyfor each separateyear of the biennium. .: : .,. (.... , ~ ::

.. *. i '. : :. > I: ..> ., .:.

. :.... ',. : ... ::. -.: .?'With respect to 'thosesupplies,or .?'With respect fo'those I.

:
. things which, as you state,might be termed capital State', Ia capital asset of the State', the rule is fixture be,purchased that such supply or fixture may be,purchased and paid for out of the aonropriationfor any aonropriation 'year-of

the biennium for i&i& an appropria-- tion has been made. Fixtures, equipmentand supplieswhatsoever that do not perishwith their use, but,

which may be continuouslyused after the year in which they are purchased, ~~ are not governed by the identicalprinciples applicableto those supplieswhich are consumedwith their use. Thus, machines, fixtures, books, and the like, are not consumed during the year they are purchased,but they last for many years. Such *capitalassets' of the State may therefore be purchasedand paid fork

out of the appropriationfor any year of the biennium for which an appronriationfor such article has been made. This is true regardless of the year in which the delivery is made, since the purchase during the proper year amounts to an expenditureor commitment of the appropriationfor that year. "In construingthe Appropriation Bill, as in construingany other legislativeact, the intent of the Legislaturegoverns. When the Legislaturehas authorized the purchase of equipment or supplies,which are not consumableby .useduring the year for which they are authorized to be purchased, it is obvious that the intent is not to provide for the operatingexpenseI I

.MissDoris H. Connerly - Page 4 (V-1139)

o.f the departmentfor the year,duringwhich the appropriationis available for expenditure, but, on the contrary, to provide for an addition to the permanentoperatingfacilities of the departmentor institution. Since the reason for the rule announcedwith respect to the type of expenditureinvolved in 0-2380 does not exist with referenceto this type of exoenditure,the rule, of course, does not .apply.i" It was-held in~Opinion0-6011 that the claim of a book binder for bindingbooks under authorityof a requisitionissued therefor by the State Board of Control on August 19, 1943, was properlypayable from an appropriationfor such purpose for the fiscalyear ending August 31, 1943, notwithstanding~the actualbinding of the books did not begin until sometime duringApril, .1944. It was further held therein that llbook bindings" are "capitalassets". within the meaning of -hat term as defined in Opinion o-2631, supra; .

. . . You-have informedus that microfilmsof newspapers do not perish with use but may be continuously used for many years and will last as long, if.not longer, than newspapersprinted on paper made fromwood-pulp, such as is commonly used for printing newspapers. de think such films may be properly classified,as"capital assets" of the State'of Texas. Therefore, the answers to your questionsare controlledby Att'y Gen..Ops.O2631 (1940) and o-6011 (1944).

In view of the foregoing, it is our opinion that the cost of microfilms of new,spapers in each of the three instances stated in your request is chargeableto and payable from the appropriationcontained in Item 15, supra, for the fiscal year in which the constractsfor ,suchfilms were made, regardlessof the fiscal year in which the delivery thereof is made. SUMMARY Where the Texas Library and Historical Commission entered into.a contract for the purchase of microfilms of newspapers for the Texas State Library, the cost of such microfilms may be paid from the appropriationsto the Commission for such purpose for tha fiscal year in which such contractwas entered,. - Miss Doris H. Connerly - Page 5 (V-1139)

. into, notwithstanding delivery of the microfilms isnot made until after the-expiration of that year. APPROVED: Very truly ydurs, C. K. Richards LTrial & Appellate'Division Everett Hutchinson~ ExecutiveAssistant Charles D. Mathews First Assistant BWB:wb

.. .

-. j

. % PRICE DANIEL Attorney General of Texas 

# h-f=&* By .' Bruce W. Bryant Assistant

,. .:.. : ‘

..