              THEATPORNEY                  GENERAL
                            OFTEXAS

 GERALD C. MAN'N            AUSTIN   XI.TEXAR

ATTORNICY GILCNXIIAL




      Hon. Tom Seag
      County Attorney
      Potter County
      Amarillo, Texas
      Dear Sir:        Opinion NO. 0-1636
                       Re: Where an Incorporated city does not have
                           and has never had a public free library,
                           do the inhabitants of such city who are
                           residents of a county have privilege of
                           using county library? Should property in
                           such city be Included in computing amount
                           which may be allowed out of general fuiia
                           of county for library.purposes? And can
                           such oity contract with county .for parti-
                           cipation In county library, paging for
                           such privilege. If so, can a withdrawal
                           be effected without giving notice requir-
                           ed by Article 1@2?
                We are in receipt of your request for an opinion on
      the following three questions:
                "1 . Where an incorporated city does not
          have and has never had a public free library,
          do the inhabitants of such city who are resi-
          dents of a county have the prlvllege of using
          the county library?
                "2. Should the property within the cor-
          porate,liml'csof such city be Fnclucledin com-
          puting the amount which may be allowed out of the
          general fund of the county for library purposes?
                "3. Can such city contract with the county
          for participation in the county free library,
          paying for such privilege; and if so, can a wlth-
          drawal be effected wlthout glvlng the notice re-
          qulred by Article 1692?"
                The CommFssioners Court of any county is au-
          thorized to establish, maintain and operate.county
          free libraries in the county. Article 1.677,R.C.S.,
          1925-
Hon. Tom Seay, page 2        o-1636


          Said free libraries may be establtshed for that
    part of the county "lying outside of the Incorporated
    cities and towns already malntainf   free nublic libra-
    ries". (Underscoring ours+
          The law also provides that the county free li-
    braries may be established "for such addLtlona1 parts
    of such counties as may elect to become a part of or to
    participate In such county free library system". Artl-
    cle 1678, R.C.S., 1925.
          We construe this article to mean that the ll-
    brarles are primarily for that territory of county out-
    side of Incorporated cities and towns which have their
    own free publLcllbrarles, but that such cities and towns
    are "such addltional parts of such counties as may elect
    to become a part of or to partlclpate in such county
    free library system".
          If Incorporated cities and towns which have such
    libraries do not elect to become a part of or to partl-
    cipate Ln the county free library system, they may not
    enjoy the benefit of the system. This applies to the
    inhabitants of these incorporated cities or towns.
          Article 1690, R.C.S., 1925, states that after
    joinder by the city or town with the county system "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
    set aside as a fund for county free library purposes'.
          According to ARticle 1691, R.C.S., 1925, In
    order "to secure to the residents of such Incorporated
    city or town the same prlvlleges of the county free
    library as are enjoyed by the residents of-such county
    outside of such incorporated city or town", the city
    or town is given power to enter into contract with the
    county. When the city or town withdraws from the system
    under Article 1692, R.C.S., 1925, "Such city OF town
    shall cease to participate in the benefits of such county
    free library system and the property situated In said
    city or town shall no longer be assessed in computing
    the fund to be set aside for county free library purposes.'
         Article 1688, R.C.S., 1925, provides that "any
   white person of such county may use the county free li-
   brary under the rules and regulations prescribed by the
   Commissioners' Court and may be entitled to all the
   privileges thereof."
Eon. Tom Seay, page 3         o-1636


          Construing Article 1688 .with Articles 1678,
    1690, 1691, and 1692, above referred to, it is appar-
    ent that the Legislature intended to limit the use of
    the county free library to any white person living in
    those parts of the county lying outside of the lncor-
    porated cities and towns already maintalning free public
    libraries and to any white person in those Incorporated
    cities and towns maintaining a free public library which
    joined the county system under Article 1690, supra.
    White persons who inhabit incorporated cities and towns
    maintaining a free public library and not electing to
    join the county free public library system are barred
    from use of the county libraries.
          Article 1688 in our opinion is not In oonflict
    with other artiales in Title 35, "County Library".
          In answer to your first inquiry, it follows that
    where an incorporated city does not have and has never
    had a public free library the inhabitants of such city
    who are residents of the county have the privrleges of
    using the county library under Articles 1678 and 1688,
    R.C.S., 1925.
          Article 1679, R.C.S,.,1925, reads as follows:
          "After a county free library hasbeen established,
    the commlasloners 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 oents on the hundred dollars valuation of all prop-
    erty In such county oufslde of all incorporated cities
    and towns already supporting a free public library, amp




    provided In this title for the purpose of maintaining
    county free libraries and for purahasing property there-
    for." (Underscoring ours).
          We call attention to the repetition of the phrase
"and upon all property within all Incorporated cities and
towns already supporting a free publlo library", evidently a
mistake in drafting the statute or in printing as it is
found in Qeneral Laws 1919, ah. 75, p. 219.
          But General Laws 1915, Thirty-fifth Legislature,
Regular Session, p. 100, Sec.,l2, 3. B. 149 (Vol. 17, Laws
Hon. Tom Seay, page 4          o-1636


of Texas) clarifies the situation. It reads as follows:
           "After a county free library has been es-
    tabllshed, the commissioners' court shall an-
    nually levy In the same manner and at the same
    time, as all other taxes are levied, a tax not
    to exceed five cents on the one hundred dollars
    valuation on allprooertv -- in such countg outside
    of
    -- all  incoroorated cities  and towns alreadYsup-
    porting --
             a free public librar-, and unon all PLOT)-
    &within      all incornorated citiesand towns al-
    ready Sunnorrx    a free publixay--
                      --                     which have
    elected & become a part --of such county=-
    library system provided in this Act for the pur-
    pose of maintaining county free libraries and
    purchasing property therefor."
          Answering your second question, it is our opinion
that property within the corporate limits of an incorporated
cltg and town which does not have and never had a public free
library is Included in computing the amount to be set aside
out of the general tax fund of the county for the maintenance
of the county free library system.
          In answer to your third question, we wish~to advise
that it Is not necessary under Articles 1677 to 1696, R.C.S.,
1925, with amendments, for an incorporated city which does
not have and has never had a public free library to contract
with the county for participation in the county free library
system or to make cash contributions for such participation
before its Inhabitants can enjoy the benefits of the system,
since Articles 1691 and 1692, R.C.S., 1925, apply only to
incorporated cities and towns maintalntng a public free
library of their own.
           Trusting that we have fully answered your inquiries,
we are
                              Yours very truly
                            ATTORNEYGENFRAL OF TEXAS
DS:ob:wc
                             By s/Dick Stout
APPROVED NOV 7, 1939              Dick Stout
s/Gerald C. Mann                   Assistant
ATTORNEY GEXERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
