‘ . 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 :
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(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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