. .
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