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TTOICNEY OF TEXAS
AuwrIN. **TEXAS** 78711

The Honorable Dorman H. Winfrey Director, Texas State Library P. 0. Box 12927 Austin, Texas 78711 Opinion No. H- 550
Re: Authority of the Texas State Library touse federal funds to purchase a computer. Dear Mr. Winfrey:

You have requested our opinion regarding the authority ofthe Texas State Library touse federal funds to purchase a computer. You state that the Texas Library &Historical Commission, as the governing body ofthe Texas State Library, ha’s approved the expenditure of $300,000 in federal funds to purchase a computer;, that the advice, but not ‘theapproval ofthe Systems Division ofthe State Auditor’s Office has been obtained; and that the Governor’s Office ofInformation Services has issued a report recommending the expenditure.

Specifically, you ask:

1. Whether the Texas State Library, since it has sought the advice of the Systems Division ofthe State Auditor’s Office, has complied with the rider to the Library &Historical Commission appropriation, and may now proceed with a purchase requisition for a computer without the consent of the Systems Division.
2. Whether the Texas State Library has complied with the provisions ofarticle 5, section 37 ofthe General Appropriations Act for fiscal 1974 and 1975.
3. Whether the rider to the Library &Historical Commission appropriation applies tofederal funds received by the Texas State Library.

p. 2470The Honorable Dorman H. Winfrey page 2 (H-550)

The rider tothe Library &Historical Commission appropriation states: None of the funds appropriated hereinabove to the

Library and Historical Commission shall be expended to rent, lease or purchase a computer or any additional electronic data processing equipment without the advice ofthe Systems Division of theAuditor’s Office.
Section 37 ofarticle 5ofthe General Appropriation Act provides inpertinent part:

Funds appropriated in this Act and budgeted by agencies and departments inArticles Ithrough IV for the acquisition of computer and computerrelated equipment or services, including software program products and the employment on afee basis ofany private firm or person acting in the capacity ofdata processing consultants or supplying computer support services for any executive department or agency shall be expended only after a determination by the Governor, in accordance with the provisions ofHouse Bill No. 50, Acts of~t.lie~Sixty-second Legislatur~e, Fourth Called Session, that the following facts have occurred: (a) That a detailed report has been prepared outlining the steps taken to utilize like resources already existing within the agencies ofthe state and the conditions requiring the additional resources. (b) That the assistance ofthe Systems Division ofthe State Auditor’s Office and the Office of Information Services, Governor’s Office, has been sought and that both have concurred in the proposed expenditure.

p. 2471The Honorable Dorman H. Winfrey page 3 (H-550)

With regard toyour first question, it is clear that the Texas State Library need obtain only the advice ofthe Systems Division ofthe State Auditor’s Office as provided by general law. V. T. C.S., art. 6252-12a. Any requirement that expenditure ofthese funds be contingent upon the approval of some other executive agency is invalid. Attorney General Opinion H-207 (1974); Attorney General Opinion M-1199 (1972). Such a grant ofauthority would amount to enactment ofgeneral legislation in an appropriation bill, inviolation ofarticle 3, section 35 ofthe Texas Constitution. Moore v. Sheppard, 192 S.W.2d 559 (Tex. Sup. Ct., 1946). Furthermore, the existing general legislation on this subject, article 6252-12a, V. T. C.S., provides only that a state agency, before it purchases computer equipment, must obtain the advice ofthe Systems Division. Our answer to your first question, therefore is, that the Texas State Library need not have the consent ofthe Systems Division in order to purchase a computer.

But although the Library appears tohave fully complied with the rider to its specific appropriation, it must also comply with section 37 ofarticle V before it may proceed with its purchase.

We have previously held invalid, in Attorney General Opinion H-207 (1974), the requirements of subsection (b) ofarticle V, section 37, i. e., that the State Auditor’s Office and the Governor’s Office shall have concurred in any expenditure offunds for computer equipment and services. The Opinion upheld subsection (a), however, since it merely requires the Governor’s determination ofthe exist’ence ofafact, and does not depend upon the exercise ofdiscretion. You have submitted for our inspection a detailed report entitled “Texas State Library,Data Processing Requirements” prepared by the Governor’s Office ofInformation Servkes. Although this report may well fulfill the requirements of subsection (a), we believe that it is for the Governor ‘to: determine whether the report does so in fact. Since subsection (a) is the only contingency provision ofarticle V, section 37which may be validly- applied, it is our opinion that the Texas State Library has fullycomplied with those provisions as soon as the Governor has made the requisite factual determination.

With regard toyour third question, we first observe that available federal funds are appropriated to the various state agencies by article V, section 19, ofthe General Appropriations Act, which states:

p.2472The Honorable Dorman H. Winfrey page 4 (H-550)

All funds received from the United States Government byagencies named in this Act are hereby appropriated to such agencies for the purposes for which the Federal grant, allocation, aid or payment was made, subject to the provisions of this Act. The rider to the Library and Historical Commission appropriation which requires that the advice ofthe Systems Division be obtained before a computer is purchased appears in article III ofthe General Appropriations Bill. The language ofthe rider specifically limits its effect to “the funds appropriated hereinabovei’i. e. , the line items appropriated to the Library and Historical Commission (Emphasis added). No federal funds are appropriated to the Commission in article III: the only appropriation of federal funds is made in article V. We must presume that the Legislature’s choice of “hereinabove” rather than “herein” signifies its intention to limit the application of the rider to those funds appropriated prior in space to the limiting language. Accordingly, we hold that the rider to the Library and Historical Commission appropriation does not apply to funds appropriated to the Commission which are totally federal in character.
SUMMARY The Texas State Library need not obtain the consent of the Systems Division of the State Auditor’s Office in order to purchase a computer, but it must comply with subsection (a) ofarticle V, section 37 of the.General Appropriations Act before making the expenditure. The Library has fully complied with the provisions ofarticle V, section 37as soon as the Governor has made the requisite determination pursuant to subsection (a), since subsection (b)therein is invalid. The rider to the Library and Historical Commission appropriation does not apply to funds received by the Texas State Library which are solely federal in origin.

/ / Attorney General of Texas

p.2473-. c

The Honorable Dorman H. Winfrey page 5 (H-550)

APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

p.2474