.     .



                               TTOICNEY
                                  OF   TEXAS

                             AuwrIN.   TEXAS        78711




    The Honorable Dorman H. Winfrey                    Opinion No.   H- 550
    Director,   Texas State Library
    P. 0. Box 12927                                    Re: Authority of the Texas
    Austin,   Texas  78711                             State Library to use federal
                                                       funds to purchase a computer.

    Dear Mr.   Winfrey:

            You have requested our opinion regarding the authority of the Texas
    State Library to use federal funds to purchase a computer.       You state that
    the Texas Library & Historical    Commission,    as the governing body of the
    Texas State Library,   ha’s approved the expenditure of $300,000     in federal
    funds to purchase a computer;, that the advice,   but not ‘the approval of the
    Systems Division of the State Auditor’s   Office has been obtained; and that
    the Governor’s  Office of Information Services has issued a report recom-
    mending the expenditure.

            Specifically,   you ask:

                         1. Whether the Texas State Library,   since it has
                     sought the advice of the Systems Division of the State
                     Auditor’s Office, has complied with the rider to the
                     Library & Historical   Commission  appropriation,   and
                     may now proceed with a purchase requisition for a
                     computer without the consent of the Systems Division.

                         2. Whether the Texas State Library has complied
                     with the provisions  of article 5, section 37 of the
                     General Appropriations    Act for fiscal 1974 and 1975.

                         3. Whether the rider to the Library & Historical
                     Commission   appropriation applies to federal funds
                     received by the Texas State Library.



                                          p. 2470
The Honorable    Dorman      H.   Winfrey   page 2 (H-550)




          The rider   to the Library   & Historical   Commission      appropriation
states:

                 None of the funds appropriated    hereinabove    to the
                 Library and Historical     Commission   shall be expended
                 to rent, lease or purchase a computer or any additional
                 electronic   data processing  equipment without the advice
                 of the Systems Division of the Auditor’s     Office.

         Section 37 of article    5 of the General    Appropriation   Act provides
in pertinent part:

                 Funds appropriated     in this Act and budgeted by
                 agencies and departments      in Articles    I through
                 IV for the acquisition   of computer and computer-
                 related equipment or services,       including soft-
                 ware program products and the employment             on
                 a fee basis of any private firm or person acting
                 in the capacity of data processing      consultants    or
                 supplying computer support services         for any
                 executive department or agency shall be expended
                 only after a determination     by the Governor,      in
                 accordance   with the provisions    of House Bill No.
                 50, Acts of~t.lie~Sixty-second   Legislatur~e,     Fourth
                 Called Session,   that the following facts have
                 occurred:

                         (a) That a detailed report has been prepared
                         outlining the steps taken to utilize like resources
                         already existing within the agencies    of the state
                         and the conditions requiring the additional
                         resources.

                         (b) That the assistance   of the Systems Division
                         of the State Auditor’s  Office and the Office of
                         Information Services,    Governor’s   Office, has
                         been sought and that both have concurred in the
                         proposed expenditure.



                                        p. 2471
The Honorable     Dorman    H.   Winfrey      page 3   (H-550)




          With regard to your first question,      it is clear that the Texas State
Library need obtain only the advice of the Systems Division of the State
Auditor’s    Office as provided by general law.         V. T. C. S., art. 6252-12a.
Any requirement        that expenditure of these funds be contingent upon the
approval     of some other executive agency is invalid.         Attorney General
Opinion H-207 (1974) ; Attorney General Opinion M-1199 (1972).              Such a
grant of authority would amount to enactment of general legislation             in an
appropriation     bill, in violation of article 3, section 35 of the Texas Consti-
tution.   Moore v. Sheppard,        192 S. W.2d 559 (Tex. Sup. Ct., 1946).
Furthermore,       the existing general legislation     on this subject,  article
6252-12a,    V. T. C. S., provides only that a state agency,        before it purchases
computer equipment,         must obtain the advice of the Systems Division.        Our
answer to your first question,        therefore is, that the Texas State Library
need not have the consent of the Systems Division in order to purchase a
computer.

          But although the Library appears to have fully complied with the
rider to its specific appropriation,  it must also comply with section 37
of article V before it may proceed with its purchase.

         We have previously       held invalid,   in Attorney General Opinion H-207
(1974), the requirements       of subsection    (b) of article V, section 37, i. e.,
that the State Auditor’s     Office and the Governor’s        Office shall have concurred
in any expenditure of funds for computer equipment and services.                   The
Opinion upheld subsection       (a), however,     since  it merely     requires  the
Governor’s    determination     of the exist’ence of a fact, and does not depend
upon the exercise    of discretion.      You have submitted for our inspection a
detailed report entitled “Texas State Library,Data             Processing     Requirements”
prepared by the Governor’s         Office of Information Servkes.           Although this
report may well fulfill the requirements          of subsection     (a), we believe that
it is for the Governor     ‘to: determine whether the report does so in fact.
Since subsection    (a) is the only contingency provision of article V, section
 37 which may be validly- applied, it is our opinion that the Texas State
Library has fully complied with those provisions           as soon as the Governor
has made the requisite factual determination.

          With regard to your third question,   we first observe        that available
federal   funds are appropriated  to the various state agencies         by article V,
section   19, of the General Appropriations   Act, which states:


                                           p. 2472
The Honorable    Dorman    H.   Winfrey   page 4    (H-550)




                All funds received from the United States Govern-
                ment by agencies named in this Act are hereby
                appropriated  to such agencies for the purposes for
                which the Federal grant, allocation,  aid or payment
                was made, subject to the provisions   of this Act.

The rider to the Library and Historical          Commission    appropriation   which
requires that the advice of the Systems Division be obtained before a
computer is purchased appears in article III of the General Appropriations
Bill.    The language of the rider specifically      limits its effect to “the funds
appropriated    hereinabovei’i.  e. , the line items appropriated      to the Library
and Historical    Commission     (Emphasis added).       No federal funds are
appropriated    to the Commission      in article III: the only appropriation    of
federal funds is made in article V.         We must presume that the Legis-
lature’s   choice of “hereinabove”      rather than “herein” signifies its inten-
tion to limit the application of the rider to those funds appropriated          prior
in space to the limiting language.        Accordingly,    we hold that the rider to
the Library and Historical      Commission      appropriation   does not apply to
funds appropriated     to the Commission      which are totally federal in character.

                                   SUMMARY

                     The Texas State Library need not obtain the
                consent of the Systems Division of the State Auditor’s
                Office in order to purchase a computer,         but it must
                comply with subsection     (a) of article V, section 37 of
                the.General   Appropriations    Act before making the
                expenditure.     The Library has fully complied with the
                provisions   of article V, section 37 as soon as the
                Governor has made the requisite determination           pursuant
                to subsection   (a), since subsection    (b) therein is invalid.
                The rider to the Library and Historical        Commission
                appropriation   does not apply to funds received by the
                Texas State Library which are solely federal in origin.




                                           /   /
                                                   Attorney   General   of Texas



                                     p. 2473
-.     c




     The Honorable   Dorman    H.   Winfrey       page 5   (H-550)




     APPROVED:




     DAVID   M.   KENDALL,    First   Assistant




     C. ROBERT HEATH,         Chairman
     Opinion Committee




                                         p. 2474
