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 His torical 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 a library 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 of providing 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 § 3 of Article 5446a. the Texas State Library and Historical 

Commission (hereafter “the Commission”) is charged with a duty to establish 

and develop a state 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 of the state;” (emphasis added) 

While the scheme of the Act places administrative responsibility in the 

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. 665 
The 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 a major 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) of the Act specifically 

authorizes contracts and agreements by the Commission and the governing 

body of a major resource center, on the 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 a network of 

library systems to serve collectively the entire population of the state. If 

contractual financial arrangements with major resource centers (major 

libraries) are necessary for that purpose, we think the power of the Commission to enter such contracts (which is not specifically prohibited) is necessari,ly implied. And if the Commission is authorized to enter a contract, it 

is authorized to exchange a consideration for the consideration it expects to 

receive. The consideration contemplated by your 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. 

In the context of the 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. 666 
The Honorable Dorman fi. Winfrey, ~page 3 (H-140’) 

Items 8 and 14 of the appropriation to the 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 Andy counties 

in Texas 50,000 50,000” 

Section 14 of Article 5446a. V. T. C. S., authorizes State grants within 

the limitation of funds appropriated to establish various library programs 

listed therein. 

Section 17 of Article 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 of the 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. ‘667 
The Honorable DormanH. Winfrey, page 4 (H-140) 

“(c) State grants t-nay not be used for site 

acquisition, construction, or for acquisition, 

maintenance, or rental of buildings, or for payment of past debts. 

I 

“(d) State aid to any free tax-supported 

public library is a supplement to and not a replacement of local support. 

“(e) Exclusive of the expenditure of funds 

for administrative expenses as provided in Section 

17(a) of this Act, all funds appropriated pursuant to 

Section 14 of this Act shall be apportioned among the 

major resource systems on the following basis: 

“Twenty-five percent of such funds shall be 

apportioned equally to the major resource systems 

and the remaining seventy-five percent shall be 

apportioned to them on a per capita basis determined 

by the last decennial census. ” (emphasis added) 

If the 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) of Section 14 of Article 

5446a permits libraries and library systems to spend such funds for programs which enrich the services and material offered a community 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. In response 

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, of the libraries 

composing the “systems” are units of a State Agency. Section 25 of Article V 

of the current General Appropriation Act provides (emphas’is added): 

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

“Sec. 25. REIMBURSEMENTS AND PAYMENTS. 

Any reimbursements received by an agency of the State 

for authorized services rendered to any other agency of 

the State Government, and any payments to an agency of 

the State Government made in settlement of a claim for 

damages, are hereby appropriated to the agency of the 

State receiving such reimbursements and payments for 

use during the fiscal year in which 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 a necessary part of the establishment~,and development of a network of 

library systems to serve collectively the,entire ,population of the state, that 

the cost of operating such a service could legitimately be considered a “current and recurring operating ~expense” within the meaning of item 8 of the 

appropriation bill, and that the expenditure of funds from that appropriation 

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 8 to provide the service and to replenish the 

item 8 account 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 of major resource centers, 

if necessary to establish and develop a network of 

library systems to serve collectively the entire population of the state. If the operation and maintenance 

of a communications “service” by the Commission 

p. 669 
The 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 

p. 670