             THE    ATTORXET          GENERAL
                         OF   TEXAS

                         June 23, 1988




Mr. William D. Gooch             Opinion NO.    JM-921
Director and Librarian
Texas State Library              Re: Whether the Library and
P. 0. Box 12927                  Archives Commission may grant
Austin, Texas 78711              funds to certain     regional
                                 library systems (RQ-1298)

Dear Mr. Gooch:

     You ask our opinion about the following questions:

           (1) Is the Library and Archives Commission
        authorized  to grant funds to a reaional
        library svstem which has as members libraries
        of private, religiously-affiliated elementary
        and secondary schools?

           (2) Is the Library and Archives Commission
        authorized  to grant funds to a reaional
        librarv svstem which has as members libraries
        of private religiously-affiliated    colleges
        and universities?

           (3) Is the Library and Archives Commission
        authorized  to grant funds to a reaional
        library svstem which has as members libraries
        belonging to 'for-profit' entities?

Before answering your questions, we will review the nature
of "regional  library systems" and the role of the State
Library and Archives Commission  in fostering such entities
under the Library Systems Act, sections 441.122 through
441.138 of the Government Code    (formerly article  5446a,
V.T.C.S.).

     The State     Library and   Archives Commission  (the
Commission) **shall establish and develop a state library
system." Gov't Code, 5 441.123. The act defines the "state
library system" as




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Mr. William D. Gooch - Page 2 (JM-921)




        a network of librarv svstems,   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.)

Gov't Code, § 441.122(14).    A "library systeml' 'is

        two or more public libraries cooperating in a
        system approved by the commission to improve
        library service and to make their resources
        accessible to all residents  of the area the
        libraries serve.  (Emphasis added.)

Gov't Code, § 441.122(g).    A "public library" is a library

        that is operated by a single public agency or
        board, that is freely open to all persons
        under identical conditions, and that receives
        its financial  support in whole or in part
        from public funds.  (Emphasis added.)

Gov't Code 5 441.122(12).  The act defines several different
kinds of public   libraries which participate   in "library
systems."   We summarize    the characteristics   of   these
libraries as follows:

            (1) a 'community library'   is
                                         .  a small
        public library serving a population of less
        than 25,000 that is a member   of a library
        system interrelated   to a major    resource
        center:

            (2) an 'area library'    is a medium-sized
        public library serving a population of 25,000
        or more that has been designated as an area
        library by     the    [Library   and  Archives
        Commission] and is a member of a library
        system   interrelated   to a 'major resource
        center';

           (3) a 'major resource center' is a large
       public   library serving    a population   of
       200,000 or more within   4,000 or more square
       miles that is designated      as the central
       library of a major resource       system  for
       referral service from area libraries in the
       system, for cooperative service with other



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Mr. William D. Gooch - Page 3     (JM-921)




        libraries in the system, and for federated
        operations   with other     libraries in the
        system.   (Emphasis added.)


See Gov't Code 5 441.122(3),       (5), and    (10).   See    g&Q
Attorney General Opinion JW-183    (1984).

     The Commission may     establish  and develop           "major
resource systems," which the act defines as

        network[s] of librarv svstems attached to a
        major resource center, consisting   of area
        libraries joined cooperatively to the major
        resource center and of community   libraries
        joined cooperatively  to area libraries   or
        directly to the major resource      centers.
        (Emphasis added.)

Gov't Code 5 441.122(11).

     Finally, a "regional library-system"     can be established
whenever

        [t]he governing bodies of two-thirds of the
        member libraries of a maior resource   svstem
        . . . elect, for the purpose of administering
        the receipt     and dispersal   of   services
        . . . within their area, to form a reaional
        librarv svstem that includes all libraries
        that are members of the maior        resource
        svstem.   (Emphasis added.)

Gov't Code 5 441.131(a).  Thus, a reaional librarv svstem is
composed of maior resource systems, which       in turn are
composed  of  the  statutorily   defined  types   of  public
libraries affiliated with a maior resource center or large
public library.

     The act permits the governing     body of a reaional
librarv svstem to     establish  a non-profit    corporation
pursuant   to article  1396-1.01  et.  se .,  V.T.C.S.,   to
administer the regional library system or to contract with a
private business  to administer   the system.    Gov't Code
§ 441.133.

     The act also authorizes  the Commission to establish           a
program of state grants, including:




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Mr. William D. Gooch - Page 4     (JM-921)




            (1) system operation grants, to strengthen
        major resource     system services to member
        libraries    and    regional    library    system
        services to      member   libraries,    including
        grants to reimburse       other libraries     for
        providing   specialized     services to     major
        resource    systems     and   regional    library
        systems;

            (2)  incentive   grants,    to  encourage
        libraries to join together into larger units
        of service in order to meet criteria      for
        major resource system membership or regional
        library system membership:

            (3)  establishment    grants,  to    help
        establish libraries   that will qualify    for
        major resource system membership or regional
        library system membership     in  communities
        without library service: and

           (4) equalization grants, to help libraries
        in communities with relatively limited tax-
        able resources   to meet criteria  for major
        resource  system    membership  or   regional
        library system membership.

See Gov't Code, 5 441.135.
       Your questions present a threshold issue: whether      the
Library Service Act permits non-nublic         libraries   to be
members of major resource systems, the constituent       elements
of a regional     library system.     Section   441.127 of the
Government    Code requires that a library        applying     for
membership in a major resource system must be accredited        by
the Library and Archives       Commission   as having met     the
accreditation standards established by the Commission.        The
act defines     "accreditation   of libraries"    to mean    "the
evaluation    and rating of public      libraries   and library
systems   according to commission accreditation standards" and
"accreditation standards" to mean "the criteria      established
by the commission that a library must meet to be       accredited
and eligible    for membership   in a major   resource   system."
(Emphasis added). Gov't Code !j441.122(l), (2).         According
to these definitions,      only    a public    library can      be
accredited, and accreditation is a statutory        prerequisite
for membership in a major resource system. Regional library
systems in turn can be composed g~ly of major            resource
systems.     In other    words, the statutes       unambiguously
restrict the membership     of regional     library systems to




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    Mr. William D. Gooch - Page 5    (JM-921)




    public libraries. Thus, the legislature has not authorized
    the participation  of non-public  libraries  in any of the
    ventures of a regional   library system as members  of the
    svstem. Your funds may therefore      go only to regional
    library systems in compliance with the statute.

         We note that section 441.128(d) does permit the

            governing body' or managing authority    of a
            regional  library system ltol enter       into
            aoreements with the governing bodies of other
            libraries, including other public   libraries,
            school libraries and media centers,   academic
            libraries, technical information and research
            libraries, or systems of those libraries,   to
            provide or receive specialized resources   and
            services. The Commission    shall coordinate
            and encourage the dissemination of special-
            ized resources  and services and may adopt
            rules for the contracts and agreements   auth-
            orized by this subsection.   (Emphasis added.)

    Gov't Code, 5 441.128(d).
h

         We conclude that this language represents authorization
    by the legislature sufficient to permit regional      library
    systems to enter into contracts with non-public    libraries
    for the purchase   or sale of lVspecialized resources     and
    services."  Because such arrangements would be in the nature
    of contracts necessarily based on adequate consideration   to
    the public, they would not be unconstitutional donations   of
    public funds.


                           SUMMARY



               Regional   library    systems   established
            pursuant to the Library Systems Act may have
            as members only public libraries as defined
            in section 441.122(g), (12) of the Government
            Code. Regional library systems may contract
            with non-public libraries for the purchase or
            sale of specialized   resources and services.
            Gov't Code, § 441.128(d).




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Mr. William D. Gooch - Page 6    (JM-921)




                                   J /h
                                     Very truly yo


                                            A         '.-
                                     JIM     MATTOX
                                     Attorney General of Texas
MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE~ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General




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