Could the Texas State Library transfer federal money as cash grants to other state agencies for institutional library services?

Texas AG Opinion JM-256: State Library Cash Grants

Plain-English summary

The Texas State Library and Archives Commission asked whether article 5435 allowed it to give federal funds to state institutions "to use in developing library services for their residents." The commission had purchased library materials for institutions but had not previously made cash grants. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

JM-256 concluded that the commission lacked that authority. The summary stated: "Article 5435, V.T.C.S., does not authorize the Texas State Library and Archives Commission to transfer federal funds to state eleemosynary institutions for library services." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

The opinion applied the rule that administrative agencies "have only those powers expressly granted by statute or necessarily implied from express powers." It found neither an express cash-grant power nor a necessary implication in article 5435's general library-development language. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

JM-256 distinguished purchasing materials from transferring cash. It noted that other statutes expressly authorized particular state agencies, including the library commission in other programs, "to make grants under statutory guidelines." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Because the commission lacked threshold authority to make the grant, the opinion did not decide whether the Interagency Cooperation Act or the General Appropriations Act would govern the proposed transactions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the State Library make a cash grant of federal money to another Texas agency?

No. JM-256 said the commission "lacks authority to make cash grants to other state agencies under section 1 of article 5435, V.T.C.S." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Had the commission previously supported libraries at state institutions?

Yes, but in a different form. The request said the commission "has for many years purchased library materials for state institutions from federal funds" and asked whether it could switch to cash grants. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Why was article 5435's broad policy language insufficient?

The opinion said it could not infer power to allocate public money among agencies from broad language about aiding and encouraging library development and cooperation. It stated that legislative silence on cash grants "signifies legislative intent to withhold power to make grants." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Did JM-256 decide whether an interagency contract could be used instead?

No. After finding no cash-grant authority, the opinion said it "need not address" the questions about other legal provisions that might apply to such transactions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

What would have been needed to authorize the program?

JM-256 stated: "If the legislature wishes to authorize the commission to make such grants, problems raised by these provisions can be resolved in the legislative process." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Background and statutory framework

Section 1 of article 5435 made the commission responsible for policies and rules to aid library development and cooperation, collect and preserve Texas historical materials, encourage historical work, and support research into legislative problems. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

The proposed grants also raised possible questions under the Interagency Cooperation Act and article V, section 58 of the 1984-1985 General Appropriations Act. JM-256 did not reach those questions because article 5435 supplied no authority for the initial grant. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

The opinion tied allocation of public funds to legislative authority. It said the constitution vested the legislature with authority "to direct how public funds shall be used and to allocate them among state agencies." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Citations and references

• Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961), supported the rule that administrative agencies possess express powers and powers necessarily implied from them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf
• Attorney General Opinions M-532 (1969) and H-1272 (1978) had required express authority for other agency cash-grant programs. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf
• Article III, sections 35 and 44, and article VIII, section 6 of the Texas Constitution appeared in the opinion's discussion of legislative control over public funds and appropriations. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf
• Articles 5436, 5436e, and 5446 were examples of express grant authority under statutory guidelines. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0256
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0256.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

December 21, 1984

Dorman H. Winfrey
Director and Librarian
Texas State Library & Archives Commission
P. O. Box 12927
Austin, Texas 78711

Opinion No. JM-256

Re: Authority of the Texas State Library and Archives Commission to transfer federal funds to other state agencies for library services

Dear Mr. Winfrey:

You ask whether the Texas State Library Commission has authority under article 5435, V.T.C.S., to grant federal funds to state eleemosynary institutions to use in developing library services for their residents.

Your first question is as follows:

Is it legal for the Library and Archives Commission to make a cash grant from federal funds to another state board or commission to improve library services for residents of that state institution?

The commission has for many years purchased library materials for state institutions from federal funds. See V.T.C.S. art. 5436. It has not made cash grants in the past and wishes to know whether it has such authority under section 1 of article 5435, V.T.C.S.

You next ask

whether such grants would be subject to the conditions and limitations of an interagency cooperation contract as provided for in the Interagency Cooperation Act, article 4413(32), or whether the commission may enter into grant agreements with other agencies under article 5435 under its own authority and without approval of the State Purchasing and General Services Commission.

Contracts entered into under the Interagency Cooperation Act are subject to approval by the State Purchasing and General Services Commission. V.T.C.S. art. 4413(32), §5. If the commission has authority to make such grants under article 5435, V.T.C.S., you wish to know whether its discretion to formulate grant contract terms would be limited by the requirements of the Interagency Cooperation Act.

You finally ask:

Would such a federal grant or interagency contract to another agency be prohibited by article V, section 58 of the 1984-1985 General Appropriations Act, Senate Bill No. 179, Sixty-eighth Legislature, Regular Session, 1983, unless specifically authorized in the Appropriations Act?

Sections 2 through 5 of article 5435, V.T.C.S., set out various powers of the commission, such as certifying county librarians, appointing a director and state librarian as well as other personnel for the State Library and Archives, and developing personnel policies and procedures. Section 1 of article 5435, V.T.C.S., provides as follows:

The Commission shall be responsible for the adoption of all policies, rules and regulations so as to aid and encourage the development of and cooperation among all types of libraries, including but not limited to public, academic, special, and other types of libraries, collect materials relating to the history of Texas and the adjoining states, preserve, classify and publish the manuscript archives and such other matters as it may deem proper, diffuse knowledge in regard to the history of Texas, encourage historical work and research, mark historic sites and houses and secure their preservation, and aid those who are studying the problems to be dealt with by legislation.

Administrative agencies have only those powers expressly granted by statute or necessarily implied from express powers. Stauffer v. City of San Antonio, 344 S.W.2d 158 (Tex. 1961). Article 5435, V.T.C.S., does not expressly authorize the commission to make cash grants to other state agencies for library purposes. We do not believe this power is necessarily implied from article 5435, section 1.

Prior opinions of this office have required express authorization for state agencies to institute cash grant programs. See Attorney General Opinions M-532 (1969) (Agricultural Extension Service may not make grants for reforestation); H-1272 (1978) (Mobile Home Performance Certification Board may not make grants for consumer education); cf. H-120 (1973) (express statutory authority necessary to receive federal grants). The legislature has in fact expressly authorized some state agencies to make cash grants to other entities. See, e.g., V.T.C.S. art. 46d-12 (Texas Aeronautics Commission); V.T.C.S. art. 4413(201), §4 (Texas Department of Community Affairs). See also Attorney General Opinions MW-423 (1982); H-416 (1974); M-110; C-673 (1966) (construing statutes that expressly authorize state agencies to make grants).

The constitution vests in the legislature authority to direct how public funds shall be used and to allocate them among state agencies. Tex. Const. art. III, §§35, 44; art. VIII, §6. See Attorney General Opinion H-207 (1974); Letter Advisory No. 2 (1973) (legislation authorizing governor to transfer funds between appropriation items is unconstitutional). The legislature exercises this power by enacting general laws defining the agency's powers and duties and by appropriating funds to the agency to carry out its legislative mandate. The General Appropriations Act in recent years has included a provision appropriating federal funds to the agencies which receive them. See Acts 1983, 68th Leg., ch. 1095, art. V, §20, at 6216; Acts 1955, 54th Leg., ch. 519, art. VI, §24, at 1593; Attorney General Opinion M-266 (1968). Appropriations not expended or obligated by the end of the appropriation period lapse and return to the treasury. Tex. Const. art. VIII, §6; Attorney General Opinions O-5266 (1943); O-2941 (1940).

When the legislature authorizes an agency to grant appropriated funds to other state agencies, it has delegated away some of its own authority to allocate public funds among state agencies. We cannot conclude that the legislature intended broad, general language such as that found in article 5435, section 1, to include power to grant funds to other agencies. The legislature has expressly authorized some agencies, including the State Library Commission, to make grants under statutory guidelines. See V.T.C.S. arts. 5436, 5436e; 5446. Federal grant programs are based on express authorization by Congress. Such statutes would be surplusage if state and federal agencies could establish grant programs in reliance on implied powers.

The Texas courts have not decided whether a state agency must have express statutory authority to make cash grants to other agencies. We cannot, however, reasonably adopt a doctrine of statutory construction which would automatically give agencies such power unless the legislature expressly denied it. In our opinion, legislative silence on the subject of cash grants to other agencies signifies legislative intent to withhold power to make grants. The State Library and Archives Commission lacks authority to make cash grants to other state agencies under section 1 of article 5435, V.T.C.S.

Because the commission lacks authority to make a federal grant from federal funds to a state institution to improve library services for its residents, we need not address your second and third questions which concern whether other provisions of law would apply to such transactions. If the legislature wishes to authorize the commission to make such grants, problems raised by these provisions can be resolved in the legislative process. See Attorney General Opinions H-170 (1973); H-601 (1970); WW-1120 (1961) (alternative sources of authority for particular interagency contracts).

SUMMARY

Article 5435, V.T.C.S., does not authorize the Texas State Library and Archives Commission to transfer federal funds to state eleemosynary institutions for library services.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton