. . 

1’1. . 

GROVER SELLERS 

xQ[Ltw~-xxxx 

AUSTIN 1,. TECXAS 

Arn”_NnnY “xcN”R.4,* 

Honorable R. 6. Wyche 

County Auditor 

Gregg County 

Longview, Texas 

Dear Mr. Wyche: 

Opinion No. O-6243 

Re: Articles 1694. 1683, 1689 

and other related articles 

on county libraries. 

Your opinion request of recent date has been received in 

this office and we quote from same as follows: 

“Facts: (1) There are three libraries in Gregg 

County operated by three incorporated cities. Two of these 

libraries have a legal certified librarian. 

“(2) There is no library fund in the current budget 

beginning October 1. 1943, and ending September 30, 1944. 

“(3) Contracts have been entered into by the Com- 

.missioners’ Court of Gregg county and the three cities. 

(Copy of contracts inclosed.) 

““(4) The Court passed an order on the 14th day of 

August, 1944, authorizing the County Judge to enter said 

contracts and authorizing the issuance of a warrant in the 

sum of $3,333.33 to each of said three libraries . D 0 payable out of the General Fund surplus a& (Copy of orders 

inclosed;) Said sums are intended as the annual amount 

for each of said libraries, 

““Questions: 

(1) Does Article 1694, Vernon’s, authorize the 

Court to contract with each such library, independent of 

Article 1689 and 1683, Vernon”s, and other articles relating to county library? 

“(2) If the court may contract with each library 

must each have certified librarian to approve bill and 

claims paid out of the sum provided for each library as 

provided by the warrant above specified - if no county librarian is named or provided with author’ity to approve 

brlls and clarms. etc, 7 
. .’ 

Hon. R. S. Wyche. page 2 (O-6243) 

“(3) What is the meaning of ‘such contract shall 

provide that such established library shall assume the 

functions of a county free library within the county* and 

‘said court may contract to pay annually into the library 

fund of said established library such sums as may be 

agreed upon a . . ’ as used in Article 16947 

“(4) Must a certified county librarian approve 

for payment bills and claims in all c’ontracts that the 

court may make with established libraries ? 

“(5) Under the terms and conditions of the contracts above mentioned (copy inclosed and or~ders of the 

court also inclosed) will the payment of said warrants 

issued each such library violate article 3, section 52, 

of the Constitution of this State ?” 

Article 1677, Vernon’s Annotated Civil Statutes, pr~ovides 

as follows: 

“The commissioners court of any county may establish, maintain and operate within their respective counties, county free libraries in the manner and with the functions prescribed in this title. The said court shall also have 

the power and authority to establish in coo-operation with 

another county or counties a joint free county library for the 

benefit of the co-operative counties. (Acts 2nd C.S., 1919, 

pa 219)“. 

,Article 1679. V.A.C.S.~, provides: 

‘“After a county free library has been established, the 

commissioners court shall annually set aside from the general tax fund of the county, a sum sufficient for the maintenance of said library, but not to exceed five cents on the hundred dollars valuation of all property in such county outside 

of all incorporated cities and towns already supporting a free 

public library, and upon all property within all incorporated 

cities and towns already supporting a free public library which 

have elected to become a part of such free library system provided in this title for the purpose of maintaining county free libraries and for purchasing property therefor.” 

Article 1689. V.A.C.S.~, provides: 

“All funds of the county free library shall be in the 

custody of the county treasurer, or other county official, who 

may discharge the duties c,ommonly delegated to the c~ounty 

treasurer. They shall constitute a separate fund to be known 

as the county free library fund, and shall not be used for any 
Hon. R. S. Wyche. page 3 (O-6243) 

other purposes except those of a county free library. Each 

claim against the county free library shall be authorized 

and approved by the c,ounty librarian, or in his absence from 

the county, by his assistant. It shall then be acted upon in 

the same manner as are all other claims against the county.” 

Article 1690, V.A.C.S., provides,: 

“After the establishment of a county free library the 

governing body of any incorporated city or town in the county. 

maintaining a free public library, may notify the commiss~ioners court that such city or town desires to become a part of 

the county free library system, and thereafter such city or 

town shall be a part thereof, and its inhabitants shall be entitled to the benefits of such county free library, and the property within such town or city shall be included in computing 

the amount to be suet aside as a fund for county free library 

purposes.” 

Article 1691, V.A.C.S, provides: 

“The commissioners court wherein a c’ounty free library has been established under the provisions of this title, 

shall have full power and authority to enter into contracts 

with any incorporated city or town maintaining a public free 

library, and such incorporated city or town shall through its 

governing body, have full power to enter into contracts with 

such county to secure to the residents of such incorporated 

city or town the same privileges of the county free library as 

are enjoyed by the residents of such county outside of such 

inc~orporated city or town, or such privileges as may be agreed 

upon in such contract, upon such consideration to be named in 

the contract as may be agreed upon, the same to be paid into 

the county library fund, and thereupon the residents of such 

incorporated city or town shall have the same privileges with 

regard to said county free library as are had by the residents 

of such county outside of such incorporated city or town, or 

such privileges as may be agreed upon by contract.m 

Article 1693,. V.A.C.S,, provides: 

“The commissioners court of any county, wherein a 

county free library has been established under the provisions 

of this title, shall have full power and authority to enter into 

contracts or agreements with the commissioners court of any 

other county to secure to the residents of such other county 

such privileges of such county free library as may, by such 

contract, be agreed upon. the same to be paid into the county 

free library fund, and thereupon the inhabitants of such other 

county shall have the privilege of such county free library as 
Hon. R. S. Nyche, page 4 (O-6243) 

may by such contract be agreed upon; and the commissioners 

cour’t shall have full power and authority to enter into a contract with the commissioners court of another county wherein 

a county free library has been established. under the provisions of this title and shall have power to provide for and to 

set aside a county free library fund, in the manner already 

set out, for the purpose of carrying out such contract. But 

the making of such contract shall not bar the commissioners 

court of such county from establishing a county free library 

therein. and upon the establishment of such county free library such contract may be terminated upon such terms as 

may be agreed upon by the parties thereto, or may continue 

for the term thereof.* 

Article 1694,. V.A.C.S., provides: 

“Instead of establishing a separate county free library, upon petition of a major’ity of the voters of the county, 

the commissioners court may contract for library privileges 

from some already established library. Such contract shall 

provide that such established library shall assume the functions of a county free library within the county with which the 

contract is made, including incorporated cities and towns 

ther,ein. and shall also provide that the librarian of such established library shall hold or secure a county librarian’s 

certificate fr’om the State Board of Library Examiners. Said 

court may contract to pay annually into the library fund of 

said established library such sum as may be agreed upon. 

to be paid out of the county library fund. Either party to 

such contract may terminate the same by giving six months 

notice of intention to do so. Property acquired under such 

contract shall be subject to division at the termination of 

the contract upon such terms as are specified in such ‘contract. D, 

The br.oad purposes and intentions of Articles 1677-1696, 

supra, are to provide free library services for the citizens of the county. 

Also. these articles set up the standards fbr such free library service. 

The librar~y service provided for in these articles may be obtained in 

either of two ways: (1) the county may establish, maintain and operate 

its own free library system as provided in Articles 1677, 1678 and 1679; 

‘or (2) the county may contract for such services as provided in Articles 

1693 and 1694. 

When a county establishes its own library system, its services may be extended to include the residents of incorporated cities or 

towns, either (1) by joinder with a city or town at the request of its governing body, as provided in Article 1690, or (2) by contract with a city 

or town as provided in Article 1691. In either event, the county library 

maintains its identity as a county free library, established, maintained 
Hon. R. S. Wyche, page 5 (O-6243) 

and operated as such. In case the city 9r town enters into a contract 

with the county for library services~, the county is in the position of owner., manager and operator of the library system while the city or town 

is in the position of a subscriber for library services 

On the other hand. instead of establishing, maintaining and 

operating its own free county library system. the county may contract 

for library privileges from (1) another county which has established a 

county free library in accordance with the provisions of Article 1693, or 

(2) the county may contract for library privileges from “some already 

established libraryn (Article 1694). In either event, the other county libr,ary or the other “already established library” maintains its identity 

as the owner? manager and operator of its already established library, 

and the county, by virtue of its contract. authorized by Article 1693 or 

‘1694, becomes a subscriber for the services of said library. 

It should be noted that when a c,ounty, in lieu of establishing, 

maintaining and operating its own library, contracts for library services 

with either another county or another “already established library,s the 

county receives library services equivalent to those it would have if it 

had established, maintained and operated its own county library. Article 

1693 provides that the contract may be made with another county which 

has established a free library in accordance with the provisions of this 

title D Thus, such county contracting for services in lieu of having its 

own library, receives services that measure up to the standards required 

for a free county library. Article 1694 provides that the contract “shall 

provide that such established library shall assume the functions of a 

county free library within the county with which the contract is made, including incorporated cities and towns therein, and shall also provide that 

the librarian of such established library shall hold or secure a county librarian certificate from the State Board of Library Examiners,” thereby 

providing a means whereby the county entering into such a contract may 

have the kind of library service contemplated by this title without such 

county having to establish, maintain and operate its own library. 

It is also noted that in the caption of the original act. pertaining to county libraries, S.B. No. 147, Ch, 117, Gen’l Laws of Texas, 

34th Legislature. 1915, the language, in part, is as follows: 

““An Act to establish. maintain, operate, equip and 

disestablish county free libraries and county circulating 

libraries for the use of the citizens of this State ~ D ~ and 

also authorizing the commissioners court in lieu of establishing free libraries and circulating libraries to enter into contracts wrth free lrbrarzes m any of the crtres and 

towns of this State D o 0w (Underscoring ours) 

The language is indicative that the purpose of Section 19, 

S.B. No. 147, Ch. 117, Gen’l Laws of Texas. Regular Session 34th Legislature. 1915’, as amended by Section 20, S. B-No. 149, Ch. 57 s Gen’l Laws 

of Texas s Regular Session 35th Legislature. 1917. as amended by Section 

20, S. B. NO. 80, Ch; 75, Gen”1 Laws of Texas, 2nd Called Session. 36th 

Legislature, 1919, and changed by the codification of 1925 (R.CtiS., 1925 

Article 1694) to read as cited herein, Article 1694. V. A. C. S., was to 

provide a means of having library service 
Hon. R. S. Wyche. page 6 (O-6243) 

without the county’s establishing, operating and maintaining a county library as such, but, in lieu thereof, the county is authorized, by virtue 

Of a contract, to subsc’rrbe to the services of an “already established Iibraryk equivalent to services it could have received had such county established a library of its own, and a c’ounty is further authorized to pay 

for such services in an annual payment from the library fund. 

In view of the foregoing, we shall answer your questions 

categorically. 

(1) Article 1694 authorizes the commissioners’ court to 

contract with an “already established library,” such as each of those referred to in your inquiry. The contract must provide, among other things, 

that the librarian of the “already established library” shall have a proper 

certificate. This provision of Article 1694 is in lieu of the provision of 

Article 1683 requiring a county librarian to be appointed by the commissioners’ court, for that appointment of a librarian by the court is applicable to a situation where ,the county establishes, operates and maintains 

its own library. and not where the county contracts or subscribes for library services from an “already established library.” Since Article 

1694 authorizes a lump sum or annual payment for library services, this 

provision is in lieu of that part of Article 1689 referring to approval of 

claims by the county librarian, for that part of Article 1689 (concerning 

the librarian’s appr~oval of claims) has reference to a situation where the 

county has established its own library and has appointed its own librarian. rather than to a situation where the c’ounty subscribes, for a lump 

sum or annual payment, for library services in lieu of establishing its 

own library, as provided in Article 1694. 

(2) In view of the foregoing discussion, this question is answered in the negative. 

(3) The language. ‘such contract shall provide that such 

established library shall assume the function of a county free library 

within the ,con&y,’ .&as reference-to the service which the “already established Ubrary”‘mu&providt; that is. the .sarme service that a library 

,owaed. and olpuaied by ,+he cmmty wnukk .prwizk-,andrr the provisions of 

this title- ,Thenn&ractrnay-cnntain ,such-prwvksions withrefer.ence to 

the f.uncfier and s:eieices~af,tfte~-~ary,as rosy be agreed upon by the parsties thereto, .said provisions to be in acrnrd with the attainment of the 

objective of library service within the scope and purview of this title. 

With reference to the language of Article 1694, ‘“said court 

may contract to pay annually into the library fund of said established library such sum as may be agreed upon. V+ it is our interpretation that said 

language provides a single annual consideration from the county in exchange for the library services by the already established library, said 

services to be in accordance with the contract authorized by Article 1694. 

In Section 20, S.B. No. 149, Gh. 57. Gen’l Laws of Texas, Regular Session. 
* , 

Hon. R. S. Wyche. page 7 (O-6243) 

35th Legislature, 1917, and in Section 20, S. B. No. 80, Ch. 75, Gen’l 

Laws of Texas, 2nd Called Session, 36th Legislature, 1919, we find the 

following language: 

“The Commissioners Court may contract to pay annually into the library fund of said established library such 

sum as may be agreed upon, Said sum shall be paid out of 

the county library fund provided for in Section 12 of this 

Act.” 

Section 12 of such act uses the identical language of Article 

1679, V-A,- C.S. 

Since the provisions of Article 1694 are in lieu of, or take 

the place of, the “establishmentw of a county free library, the fund from 

which the annual payment is to be made is the library fund set up under 

the limitations as to the total amount under Article 1679, and in accordance with Article 1689. as to the designated and specific use of said fund. 

Under the foregoing limitations, the commissioners’ court is authorized 

to “contract to pay annually into the library fund of said established library such sum as may be agreed upon to be paid out of the county library 

fundam 

(4) The claim for the payment of the annual sum for library 

services under the terms of the contract would be allowed and ordered 

paid by the commissioners’ court in the same manner that any other 

claim for services rendered the county under a contract would be allowed 

and paid. The approval by a certified librarian would not be required, 

for under the provisions of Article 1694 the plan of an annual or lump sum 

payment is in lieu of those provisions with reference to the approval of 

claims by a certified librarian, which provisions are applicable to a situation where the county establishes, maintains and operates its own library, and has its own librarian, and not where the county contracts or 

subscribes to the library servic,e from an ““already established library.w 

(5) Article 3, Section.52, Constitution of Texas provides, 

in part, as follows: 

““The Legislature shall have no power to authorize 

any county, city, town or other political corporation or snbdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation, whatsoever, or to become a stockholder 

in such corporation, associatiola or company; e e 0 O” 

The Austin Court of Civil Appeals in the case of Bland, et 

al. vs. City of Taylor. et al, 37 S.W.(2), 291, in considering the applicability of the above set out provision cf the Constitution, together with Astitle 11. Section 3, of the Constitution, which prohibits any county, city 

or municipality from masking any appropriation or donation or in any wise 
, ._- 

HOIL R. S. Wyche, page 8 (O-6243) 

loaning its credit to any private corporation or association, said the following: 

“These provisions clearly contemplate and prohibit, 

we think, benefits at public expense attempted in behalf of 

individuals, corporations. or associations, as such. acting 

independently and conducting some enterprise of their own. 

such as are usually conducted for profit and commercial in 

their nature. m 

In the case of Davis, et al. vs. City of Taylor, et al, 67 S. W. 

(2) 1033. in which the judgment rendered in Bland, et al. vs. City of Taylor, et al. supra. was affirms d, the Supreme Court of Texas said the following: 

“Article 8, Section 3, of the Constitution provides: 

‘Taxes shall be levied and collected by general laws and 

for public purposes only.’ --~Suffice it to say that, unless a 

court can say that the purposes for which public funds are 

expended are clearly not public purposes. it would not be 

justified in holding invalid a legislative act - - pr.oviding 

funds for such purposes.* 

Therefore, we do not believe that such a contract. or contracts, as we have discussed herein, would violate any provision of the 

Constitution of Texas, as the expenditures herein mentioned are for 

c~ounty library services for the citizens of the county. Furthermore 

such service is clearly public in nature. and. the expenditure is not for 

a commercial purpose. In connection w,ith this question, we point out 

that we are not here ruling on the form or substance of your contracts 

or the order of the commissioners* court. as we believe you will have 

no difficulty in conforming them. if necessary, to our holding herein. 

You are further advised that before such funds should be 

paid out, such expenditures must have been authorized in the county budget. 

Trusting that the foregoing satisfactoxily answers your inquiry, we are 

Yours very truly 

Approved NOV 2 1; 1944 

/s/ Carlos C. Ashley ATTORNEY GENERAL OF T~EXA.9 

&i&t Assistant - 

Attorney General 

SAE:sd/cm 

By /s/ J.A. Ellis 

J. A. Ellis 

Assistant 

This Opinion considertd 

and approved in 

limited c’onference