. . 

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 to use federal 

funds to purchase a computer. 

Dear Mr. Winfrey: 

You have requested our opinion regarding the authority of the Texas 

State Library to use federal funds to purchase a computer. You state that 

the Texas Library & Historical Commission, as the governing body of the 

Texas State Library, ha’s approved the expenditure of $300,000 in federal 

funds to purchase a computer;, that the advice, but not ‘the approval of the 

Systems Division of the State Auditor’s Office has been obtained; and that 

the Governor’s Office of Information 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 of the 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 of article 5, section 37 of the 

General Appropriations Act for fiscal 1974 and 1975. 

3. Whether the rider to the Library & Historical 

Commission appropriation applies to federal funds 

received by the Texas State Library. 

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

The rider to the 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 

of the Systems Division of the Auditor’s Office. 

Section 37 of article 5 of the General Appropriation Act provides 

in pertinent part: 

Funds appropriated in this Act and budgeted by 

agencies and departments in Articles I through 

IV for the acquisition of computer and computerrelated equipment or services, including software program products and the employment on 

a fee basis of any private firm or person acting 

in the capacity of data 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 of House 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 of the state 

and the conditions requiring the additional 

resources. 

(b) That the assistance of the Systems Division 

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

With regard to your first question, it is clear that the Texas State 

Library need obtain only the advice of the Systems Division of the State 

Auditor’s Office as provided by general law. V. T. C. S., art. 6252-12a. 

Any requirement that expenditure of these 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 of authority would amount to enactment of general legislation in an 

appropriation bill, in violation of article 3, section 35 of the 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 of the Systems Division. Our 

answer to your first question, therefore is, that the Texas State Library 

need not have the consent of the Systems Division in order to purchase a 

computer. 

But although the Library appears to have fully complied with the 

rider to its specific appropriation, it must also comply with section 37 

of article 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) of article V, section 37, i. e., 

that the State Auditor’s Office and the Governor’s Office shall have concurred 

in any expenditure of funds for computer equipment and services. The 

Opinion upheld subsection (a), however, since it merely requires the 

Governor’s determination of the exist’ence of a fact, and does not depend 

upon the exercise of discretion. You have submitted for our inspection a 

detailed report entitled “Texas State Library,Data Processing Requirements” 

prepared by the Governor’s Office of Information 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 of article V, section 

37 which may be validly- applied, it is our opinion that the Texas State 

Library has fully complied with those provisions as soon as the Governor 

has made the requisite factual determination. 

With regard to your third question, we first observe that available 

federal funds are appropriated to the various state agencies by article V, 

section 19, of the General Appropriations Act, which states: 

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

All funds received from the United States Government by agencies 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 of the Systems Division be obtained before a 

computer is purchased appears in article III of the General Appropriations 

Bill. The language of the 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) of article V, section 37 of 

the.General Appropriations Act before making the 

expenditure. The Library has fully complied with the 

provisions of article V, section 37 as 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