# THE ATTORNEY GENIC OFTEXAS

The Honorable Dorman H. Winfrey Director and Librarian Texas State Library Box 2927 Capito,l Station Austin, Texas 78711

Dear Mr. Winfrey: Opinion No. H- 140 Re: Authority of Library and Historical Commis - sion to contract to provide network communications services to library systems and methods of payment You have requested an opinion regarding the communications network in Texas presently linking libraries within alibrary 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 ofproviding and financing a communications clearing-house system so that all participating libraries can be advised of, and have access to, all materials available in other participating libraries.

Under §3ofArticle 5446a. the Texas State Library and Historical Commission (hereafter “the Commission”) is charged with aduty to establish and develop astate 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 collectively the entire population ofthe state;” (emphasis added) While the scheme ofthe Act places administrative responsibility inthe 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. 665The 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 amajor 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) ofthe Act specifically authorizes contracts and agreements by the Commission and the governing body ofamajor resource center, onthe 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 Commission to discharge its primary task: to establish and develop anetwork of library systems to serve collectively the entire population ofthe state. If contractual financial arrangements with major resource centers (major libraries) are necessary for that purpose, we think the power ofthe Commission to enter such contracts (which is not specifically prohibited) is necessari,ly implied. And if the Commission is authorized to enter acontract, it is authorized to exchange aconsideration for the consideration it expects to receive. The consideration contemplated byyour inquiry is the communication “service” to be supplied. We do not believe such contracts between the Commission and major resource centers, whichfurther and develop the system, 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. Inthe context ofthe 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 communications “service” in return for payment therefor.

Your second inquiry asks, “may the governing bodies [of major resource center libraries] reimburse the Commisa.ion for [such] services rendered [from]
. . . State grant-in-aid funds,
. . . granted to the governing bodies from Library and Historical Commission appropriation Item [14]? ”

p. 666The Honorable Dorman fi. Winfrey, ~page 3 (H-140’)

Items 8and 14ofthe appropriation tothe Library and Historical Commission (H.B. 139, Act, 1973, 63rd Leg.) make the following appropriation 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 Andycounties in Texas 50,000 50,000” Section 14ofArticle 5446a. V. T. C.S., authorizes State grants within the limitation of funds appropriated to establish various library programs listed therein.

Section 17ofArticle 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 ofthe 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. ‘667The Honorable DormanH. Winfrey, page 4 (H-140)

“(c) State grants t-naynot be used for site acquisition, construction, or for acquisition, maintenance, or rental ofbuildings, or for payment ofpast debts. I

“(d) State aid toany free tax-supported public library is a supplement toand not a replacement of local support.

“(e) Exclusive ofthe expenditure offunds for administrative expenses as provided in Section 17(a) ofthis Act, all funds appropriated pursuant to Section 14ofthis Act shall be apportioned among the major resource systems onthe following basis:

“Twenty-five percent of such funds shall be apportioned equally tothe major resource systems and the remaining seventy-five percent shall be apportioned to them onaper capita basis determined by the last decennial census. ” (emphasis added) Ifthe service contemplated is one which the libraries might legitimately 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) ofSection 14ofArticle 5446a permits libraries and library systems to spend such funds for programs which enrich the services and material offered acommunity 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. Inresponse 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 Commission financed the services. We assume that some, if not all, ofthe libraries composing the “systems” are units ofaState Agency. Section 25 ofArticle V ofthe current General Appropriation Act provides (emphas’is added):

p. 668The Honorable Dorman H. Winfrey, page 5 (H-140)

“Sec. 25. REIMBURSEMENTS AND PAYMENTS. Any reimbursements received by an agency ofthe State for authorized services rendered toany other agency of the State Government, and any payments to an agency of the State Government made in settlement ofa claim for damages, are hereby appropriated to the agency ofthe State receiving such reimbursements and payments for use during the fiscal year inwhich 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 expenditures of like character were originally made.
. . .I’ We think the “service” contemplated might accurately be characterized as anecessary part ofthe establishment~,and development ofanetwork of library systems to serve collectively the,entire ,population ofthe state, that the cost of operating such a service could legitimately be considered a “current and recurring operating ~expense” within the meaning of item 8of the appropriation bill, and that the expenditure offunds from thatappropriation 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 8to provide the service and to replenish the item 8account 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 ofmajor resource centers, if necessary to establish and develop anetwork of library systems to serve collectively the entire population ofthe state. Ifthe operation and maintenance ofa communications “service” by the Commission

p. 669The Honorable Dorman H. Winfrey, page 6 (H-140)

meets such criteria, the contracting libraries may pay for the service with funds appropriated for grantsin-aid. Very truly yours,



# 4% L. HILL 

# c/ Attorney General of Texas

I DAVID M. KENDALL, Chairman Opinion Committee

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