Untitled Texas Attorney General Opinion

Opinion

‘ . 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 submitted 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 orders 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 appropriation of the fiscal year in which the work was done regardless of the fiscal year in which the contract was made

‘. (2) Invoices can be paid only in the fi's-

cal year in which the work was actually 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 appropriation of Q25,OOO for each fiscal year of the current biennium 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 purchased from an appropriation for that year and that an appropriation 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 socalled "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:

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"T&cardinal rule is that money appropriated 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 nevertheless 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 consumed with their use. Thus, machines, fixtures , 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 regardless 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 intent of the Legislature governs. When the Legislature has authorized the purchase of equipment or supplies, which are not consumable by .use during the year for which they are authorized to be purchased, it is obvious that the intent is not to provide for the operating expense

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o.fthe department for the year,duringwhich the appropriation is available for expenditure , but, on the contrary, to provide for an addition to the permanent operating facilities 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 Control on August 19, 1943, was properly payable from an appropriation for such purpose for the fiscal year ending 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 newspapers 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 microfilms may be paid from the appropriationsto the Commission for such purpose for tha fiscal year in which such contract was entered ,. -

Miss Doris H. Connerly - Page 5 (V-1139)

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into, notwithstandingdelivery of the microfilms 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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