                    ‘ . December 22, 1950.

      Miss Doris H. Connerly        Opinion No. V-1139.
      Acting State Librarian
      Texas State Library          Re:   Fiscal year appro-
      Austin, Texas                      priation from which
                                         to pay for’microfilm
                                         copies of newspapers
                                         ordered for the State
                            .            Library under the sub-
                                         mitted facts.
      Dear Miss‘Connerly:
                 Your request for an opinion reads as follows:
                 “For several years, the Texas State Li-
.._   .     brary -hasbeen ordering microfilm copies of
            newspapers. These have been contracted for:
                  (1)’ Back files’of newspapers at .fixed
                       amounts

  :        ‘. ” ,-(2) On annual basis so much per foot,
                       paid by the year            :
               ..:
             ..
                   (3) On an annual basis so much per foot,
                       paid by the month.
                * “Attached are photostat copies of letters
             which the State Library sends out each year in
             advance of renewal orders that are placed by
          .. the fiscal year.
                 “The Texas State Library.is of the opinion
            that there is no difference In these annual or-
            ders and those placed on an annual basis for
            newspapers in print and paid for In advance, and
            that~the invoices covering microfilm orders can
            be paid on the annual basis from funds of the
            fiscal year in which they are placed regardless
            of whether microfilms are received within the
            fiscal year or after the close of”the year, and
            regardless of whether they are paid by the foot
            each month or whether contracted for several
            years of back files at a fixed amount.
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            Miss Doris H. Connerly - Page 2   (V-1139)


                      "On the other hand, it is the opinion
                 of the ComDtrollerts DeDartment. Claims
                 Division, bat this is a service charge and
                      (1) Back files of newspapers contracted
                          for must be paid for out of the ap-
                          propriation of the fiscal year in
                          which the work was done regardless
                          of the fiscal year in which the con-
                          tract was made
                   ‘. (2)   Invoices can be paid only in the fi's-
                            cal year in which the work was ac-
                            tually done when quoted by the foot
                            and paid by the month for the reason
                            that they are of the opinion,that the
                            item of cost is a service or labor
                            .charge.
                      DYour opinion is necessary on account of
                 the conflicting views of the departments.
                 Plea& advise which is right."
     : -,             You:have advised us that the term "on an annual
            basis" contained in your request means.'*ona fiscal year
            basis.”
                       Item 15 of the appropriationsfor the support
            and maintenance of the Texas State Library is an appropri-
            ation of Q25,OOO for each fiscal year of the current bien-
            nium for l'books,subscriptions,memberships,maps, bind-
            .ing, book repairs, preparation for binding microfilms,
             microfilming." (Acts 5lst Leg., R.S. 1949, ch. 615, at
             pate 1281.)
                      This office has repeatedly held that supplies
            i&ended for use during a certain fiscal year must be pur-
            chased from an appropriation for that year and that an ap-
            propriation for one fiscal year may not intentionallybe
            used to purchase supplies which are to be consumed during
            a succeeding fiscal year. Att'y Gen. Ops. O-2380 (19401,
            0-6011 (19441, o-6883 (1945). Ho>rever,we have recognized
b,
 .          that an exception to this rule exists in the case of so-
            called "capital assets" or supplies which from their nature
            will not be entirely used or 'consumedduring a brief period
            of time, but may be continuouslyused after the year in
            which they were purc&ased. Att'y Gen. ops. o-2631 (19401,
            0-6011 (1944).
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            Miss Doris H. Connerly ,-Page 3    (V-1139)


                        We quote from Opinion o-2631 as follows:
                              :.
                        "T&cardinal rule is that money appro-
                   priated to a department or institutionto be
                   expended for supplies to be used and consumed
                   during a given fiscal year, may not in any
                   event be expended for supplies intended for
                   use and consumption during another fiscal
                   year. As pointed out in our Opinion No. O-
                   2380, ourappropriations, while made for two
                   years -bythe AppropriationAct, are neverthe-
                   less specificallyfor each separate year of
                   the biennium.          .: :       .,.   (....
                                                               , ~ ::
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                   :   ..?'Withrespect fo'those
                                       to 'those supplies, or
                   things which, as you state, might be termed
                    Ia capital asset of the State', the rule is
                   that such supply or fixture may be,purchased
*                  and paid for out of the aonropriationfor any
                   'year-ofthe biennium for i&i& an appropria--
                    tion has been made. Fixtures, equipment and
             . :    supplies whatsoever that do not perish with
        I~         their use, but,which may be continuouslyused ~~
                   after the year in which they are purchased,
                   are not governed by the identical principles
                   applicable to those supplies which are con-
                    sumed with their use. Thus, machines, fix-
                    tures, books, and the like, are not consumed
                    during the year they are purchased, but they
                   last for many years. Such *capitalassets'
                    of the State may therefore be purchased and
                    paid forkout of the appropriation for any year
                    of the biennium for which an appronriationfor
                    such article has been made. This is true re-
                    gardless of the year in which the delivery is
                    made, since the purchase during the proper
                   year amounts to an expenditure or commitment
                    of the appropriation for that year.
                         "In construing the AppropriationBill, as
                    in construing any other legislative act, the in-
                    tent of the Legislature governs. When the Leg-
                    islature has authorized the purchase of equip-
                    ment or supplies, which are not consumable by
                   .use during the year for which they are author-
                    ized to be purchased, it is obvious that the in-
                    tent is not to provide for the operating expense
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     .Miss Doris H. Connerly - Page 4   (V-1139)


          o.fthe department for the year,duringwhich
          the appropriation is available for expendi-
          ture, but, on the contrary, to provide for
          an addition to the permanent operating facil-
          ities of the department or institution.
          Since the reason for the rule announced with
          respect to the type of expenditure involved
          in 0-2380 does not exist with reference to
          this type of exoenditure,the rule, of course,
          does not .apply.i"
                It was-held in~Opinion 0-6011 that the claim
      of a book binder for binding books under authority of a
      requisition issued therefor by the State Board of Con-
      trol on August 19, 1943, was properly payable from an
      appropriation for such purpose for the fiscal year end-
      ing August 31, 1943, notwithstanding~theactual binding
      of the books did not begin until sometime during April,
     .1944. It was further held therein that llbookbindings"
      are "capital assets".within the meaning of -hat term as
      defined in Opinion o-2631, supra;                          .

..      .      You-have informed us that microfilms of news-
     papers do not perish with use but may be continuously
     used for many years and will last as long, if.not longer,
     than newspapers printed on paper made fromwood-pulp,
     such as is commonly used for printing newspapers. de
     think such films may be properly classified,as"capital
     assets" of the State'of Texas. Therefore, the answers
     to your questions are controlled by Att'y Gen..Ops. O-
     2631 (1940) and o-6011 (1944).
                In view of the foregoing, it is our opinion
     that the cost of microfilms of new,spapersin each of the
     three instances stated in your request is chargeable to
     and payable from the appropriation contained in Item 15,
     supra, for the fiscal year in which the constracts for
     ,such films were made, regardless of the fiscal year in
     which the delivery thereof is made.
                               SUMMARY
               Where the Texas Library and Historical
          Commission entered into.a contract for the
          purchase of microfilms of newspapers for the
          Texas State Library, the cost of such micro-
          films may be paid from the appropriationsto
          the Commission for such purpose for tha fis-
          cal year in which such contract was entered
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          Miss Doris H. Connerly - Page 5     (V-1139)
                                                                               .

                 into, notwithstandingdelivery of the micro-
                 films isnot made until after the-expiration
                 of that year.
          APPROVED:                       Very truly ydurs,
          C. K. Richards               PRICE DANIEL
         LTrial & Appellate'Division Attorney General of Texas
          Everett Hutchinson~
          Executive Assistant              h-f=&*
                                          By   .'
          Charles D. Mathews                Bruce W. Bryant
          First Assistant                   Assistant
          BWB:wb



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