                   THE                ATTORNEY                              GENIC
                                                OFTEXAS




The     Honorable            Dorman           H.     Winfrey                       Opinion        No.      H-     140
Director         and     Librarian
Texas      State       Library                                                     Re:     Authority            of Library
Box     2927     Capito,l        Station                                                   and His torical              Commis        -
Austin,         Texas        78711                                                         sion     to contract          to pro-
                                                                                           vide     network          communica-
                                                                                           tions     services           to library
                                                                                           systems          and methods            of
Dear      Mr.      Winfrey:                                                                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 communi-
cations        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             collect-
                       ively     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 Commis-
sion      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 Commis-
sion      to enter       such        contracts          (which        is not specifically                    prohibited)         is    neces-
sari,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 communica-
tion     “service”          to be supplied.                   We    do not believe                such        contracts        between            the
Commission               and major            resource             centers,      whichfurther                   and develop            the sys-
tem,      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                 communi-
cations       “service”             in return         for     payment         therefor.


           Your      second          inquiry         asks,       “may        the governing               bodies         [of major         re-
source       center        libraries]           reimburse             the Commisa.ion                    for    [such]     services
rendered          [from]        .    .    . State     grant-in-aid             funds,        .    .    . granted         to the govern-
ing     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            appro-
priation      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         pay-
                    ment        of past       debts.
                    I

                               “(d)    State       aid     to any free          tax-supported
                    public      library        is a supplement                  to and not a replace-
                    ment       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         legiti-
mately      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      pro-
grams       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 Commis-
sion     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 expendi-
                  tures         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 “cur-
rent    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          pop-
                   ulation        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   grants-
               in-aid.


                                                    Very   truly       yours,



                                                               4%
                                                               L.    HILL

                                             c/     Attorney         General    of Texas




                                        I



DAVID     M.   KENDALL,         Chairman
Opinion   Committee




                                             p.    670
