Can Texas library grant money go to a regional library system that includes private religious school libraries or for-profit libraries?

Texas AG Opinion JM-921: Who Can Belong to a Regional Library System?

Plain-English summary

The Texas State Library runs a program that helps local libraries band together into cooperative networks, and hands out grant money to support them. The state librarian had a delicate question. Some of these networks were being asked to include libraries that are not run by the government: libraries at private religious schools, at private religious colleges, and even libraries owned by for-profit businesses. Could the commission still send grant money to a regional library system that had those kinds of members? Behind that question sit two hard constitutional issues, whether public money going to religious schools crosses the church-state line, and whether public money going to private for-profit outfits is an illegal gift. The Attorney General managed to answer without touching either one.

The key turned out to be who is even allowed to be a member of one of these systems in the first place. The statute builds the structure in layers. A regional library system is made up of "major resource systems," and those are made up of specific kinds of public libraries. To join a major resource system, a library has to be accredited by the commission, and the law defines accreditation so that it applies only to public libraries. A public library, in turn, is defined as one run by a single public agency or board, open to everybody on the same terms, and supported at least in part by public funds. Follow that chain and you reach a clean answer: only public libraries can be members of a regional library system. Private religious school libraries, private college libraries, and for-profit libraries simply do not fit the definition, so they cannot be members, and there is no church-state or gift question to resolve. The commission's grant money can go to a regional library system, but only one whose members are public libraries as the statute requires.

That is not the end of the story for cooperation with private libraries, though. The Attorney General pointed to another provision that lets a regional library system enter into agreements with non-public libraries, including school libraries, academic libraries, and research libraries, to provide or receive specialized resources and services. The difference is that these are contracts, not memberships and not handouts. Each side gives something and gets something, so there is real consideration flowing back to the public. Because of that, these arrangements are not unconstitutional donations of public funds. So a regional library system can work with a private religious college's library or a specialized research library through a service contract, even though that library cannot be a member of the system.

Currency note

This opinion was issued in 1988. Later statutes, court decisions, and 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 mentioned here.

This opinion reads the Library Systems Act as it stood in the late 1980s, shortly after the library statutes were recodified into the Government Code from former article 5446a, V.T.C.S. The legislature has revisited library-system structure and state library funding several times since, so the specific section numbers in chapter 441, the categories of libraries, the accreditation scheme, and the grant programs should all be checked against the current Government Code and the Texas State Library and Archives Commission's rules. The core reasoning here, that membership in these systems is limited by statute to public libraries and that a service contract backed by consideration is not a gift of public funds, reflects durable principles, but anyone administering or applying for library-system grants today should work from the current statutes.

Who this opinion affected (as of 1988)

The Library and Archives Commission: The opinion told the commission it could grant funds only to regional library systems whose members are public libraries, and that it need not resolve the constitutional questions raised by non-public members because those libraries cannot be members at all.

Private and for-profit libraries: The opinion made clear they could not be members of a regional library system, but that they could still contract with a system to buy or sell specialized resources and services.

Public libraries and their systems: The opinion confirmed the membership structure of major resource systems and regional library systems and the availability of the various state grant programs.

Common questions

Can a private religious school's library be a member of a Texas regional library system?
No. Only public libraries can be members. Because a library must be accredited to join a major resource system, and only public libraries can be accredited, a private religious school library cannot be a member.

What about a private college library or a for-profit company's library?
Same answer. Neither fits the statutory definition of a public library, so neither can be a member of a regional library system.

Did the Attorney General decide whether funding these libraries would violate the separation of church and state?
No. The opinion resolved the questions on statutory grounds, holding that non-public libraries cannot be members in the first place, so it never had to reach the constitutional church-state or public-funds issues.

Can a regional library system work with private libraries at all?
Yes, through contracts. Section 441.128(d) lets a regional library system enter agreements with non-public libraries, including school, academic, and research libraries, to provide or receive specialized resources and services.

Why are those contracts allowed when membership is not?
Because they are supported by adequate consideration to the public. Each side gives and receives something of value, so the arrangement is a contract rather than an unconstitutional donation of public funds.

Background and statutory framework

The Library Systems Act (Government Code sections 441.122 through 441.138, formerly article 5446a, V.T.C.S.) directs the State Library and Archives Commission to establish and develop a state library system (section 441.123), defined as a network of library systems interrelated by contract to organize library resources and services and improve statewide library service (section 441.122(14)). A "library system" is two or more public libraries cooperating in a system approved by the commission (section 441.122(9)), and a "public library" is one operated by a single public agency or board, freely open to all persons under identical conditions, and receiving financial support in whole or in part from public funds (section 441.122(12)). The Act defines several kinds of participating public libraries, including community libraries, area libraries, and major resource centers (section 441.122(3), (5), (10); see Attorney General Opinion JW-183 (1984)), and authorizes the commission to establish major resource systems, networks of library systems attached to a major resource center (section 441.122(11)).

A regional library system is formed when the governing bodies of two-thirds of the member libraries of a major resource system elect to form one for administering the receipt and dispersal of services within their area, including all libraries that are members of the major resource system (section 441.131(a)). A regional library system is thus composed of major resource systems, which in turn are composed of the statutorily defined public libraries affiliated with a major resource center. The Act permits the governing body of a regional library system to establish a nonprofit corporation under the state's nonprofit corporation statute (article 1396-1.01 et seq., V.T.C.S.) or to contract with a private business to administer the system (section 441.133), and authorizes the commission to establish system operation, incentive, establishment, and equalization grants (section 441.135).

The questions presented a threshold issue: whether the Act permits non-public libraries to be members of major resource systems, the constituent elements of a regional library system. Section 441.127 requires a library applying for membership in a major resource system to be accredited by the commission as meeting its accreditation standards, and the Act defines "accreditation of libraries" as the evaluation and rating of public libraries and library systems, and "accreditation standards" as the criteria a library must meet to be accredited and eligible for major resource system membership (section 441.122(1), (2)). Under these definitions, only a public library can be accredited, and accreditation is a statutory prerequisite for membership in a major resource system; regional library systems in turn can be composed only of major resource systems. The statutes therefore unambiguously restrict the membership of regional library systems to public libraries, and the legislature has not authorized the participation of non-public libraries as members of the system. Commission funds may go only to regional library systems in compliance with the statute.

The Attorney General noted, however, that section 441.128(d) permits the governing body or managing authority of a regional library system to enter into agreements with the governing bodies of other libraries, including other public libraries, school libraries and media centers, academic libraries, and technical information and research libraries (or systems of those libraries), to provide or receive specialized resources and services, with the commission coordinating and encouraging dissemination and authorized to adopt rules for such contracts. That language is sufficient legislative authorization to permit regional library systems to contract with non-public libraries for the purchase or sale of specialized resources and services. Because such arrangements would be contracts necessarily based on adequate consideration to the public, they would not be unconstitutional donations of public funds.

Citations

Statutory authority:

• Library Systems Act, Government Code §§ 441.122 through 441.138 (formerly V.T.C.S. article 5446a)
• Government Code § 441.122 (definitions), including (1) accreditation of libraries, (2) accreditation standards, (3) community library, (5) area library, (9) library system, (10) major resource center, (11) major resource system, (12) public library, (14) state library system
• Government Code § 441.123 (Commission shall establish and develop a state library system)
• Government Code § 441.127 (accreditation as a prerequisite for major resource system membership)
• Government Code § 441.128(d) (agreements with non-public libraries for specialized resources and services)
• Government Code § 441.131(a) (formation of a regional library system)
• Government Code § 441.133 (nonprofit corporation or private-business contract to administer a regional library system); V.T.C.S. article 1396-1.01 et seq. (nonprofit corporation statute)
• Government Code § 441.135 (state grants: system operation, incentive, establishment, and equalization grants)

Prior Attorney General materials referenced: JW-183 (1984).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-921
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0921.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The scan rendered several subsection numbers as letters (for example "(9)" as "(g)" and "(1)" as "(l)"); these have been corrected to the numbers used throughout the statute.

THE ATTORNEY GENERAL OF TEXAS

June 23, 1988

Mr. William D. Gooch
Director and Librarian
Texas State Library
P. O. Box 12927
Austin, Texas 78711

Opinion No. JM-921

Re: Whether the Library and Archives Commission may grant funds to certain regional library systems (RQ-1298)

Dear Mr. Gooch:

You ask our opinion about the following questions:

(1) Is the Library and Archives Commission authorized to grant funds to a regional library system which has as members libraries of private, religiously-affiliated elementary and secondary schools?

(2) Is the Library and Archives Commission authorized to grant funds to a regional library system which has as members libraries of private religiously-affiliated colleges and universities?

(3) Is the Library and Archives Commission authorized to grant funds to a regional library system which has as members libraries belonging to "for-profit" entities?

Before answering your questions, we will review the nature of "regional library systems" and the role of the State Library and Archives Commission in fostering such entities under the Library Systems Act, sections 441.122 through 441.138 of the Government Code (formerly article 5446a, V.T.C.S.).

The State Library and Archives Commission (the Commission) "shall establish and develop a state library system." Gov't Code, § 441.123. The act defines the "state library system" as

a network of library systems, interrelated by contract, for the purpose of organizing library resources and services for research, information, and recreation to improve statewide library service and to serve collectively the entire population of the state. (Emphasis added.)

Gov't Code, § 441.122(14). A "library system" is

two or more public libraries cooperating in a system approved by the commission to improve library service and to make their resources accessible to all residents of the area the libraries serve. (Emphasis added.)

Gov't Code, § 441.122(9). A "public library" is a library

that is operated by a single public agency or board, that is freely open to all persons under identical conditions, and that receives its financial support in whole or in part from public funds. (Emphasis added.)

Gov't Code § 441.122(12). The act defines several different kinds of public libraries which participate in "library systems." We summarize the characteristics of these libraries as follows:

(1) a "community library" is a small public library serving a population of less than 25,000 that is a member of a library system interrelated to a major resource center;

(2) an "area library" is a medium-sized public library serving a population of 25,000 or more that has been designated as an area library by the [Library and Archives Commission] and is a member of a library system interrelated to a "major resource center";

(3) a "major resource center" is a large public library serving a population of 200,000 or more within 4,000 or more square miles that is designated as the central library of a major resource system for referral service from area libraries in the system, for cooperative service with other libraries in the system, and for federated operations with other libraries in the system. (Emphasis added.)

See Gov't Code § 441.122(3), (5), and (10). See also Attorney General Opinion JW-183 (1984).

The Commission may establish and develop "major resource systems," which the act defines as

network[s] of library systems attached to a major resource center, consisting of area libraries joined cooperatively to the major resource center and of community libraries joined cooperatively to area libraries or directly to the major resource centers. (Emphasis added.)

Gov't Code § 441.122(11).

Finally, a "regional library system" can be established whenever

[t]he governing bodies of two-thirds of the member libraries of a major resource system . . . elect, for the purpose of administering the receipt and dispersal of services . . . within their area, to form a regional library system that includes all libraries that are members of the major resource system. (Emphasis added.)

Gov't Code § 441.131(a). Thus, a regional library system is composed of major resource systems, which in turn are composed of the statutorily defined types of public libraries affiliated with a major resource center or large public library.

The act permits the governing body of a regional library system to establish a non-profit corporation pursuant to article 1396-1.01 et seq., V.T.C.S., to administer the regional library system or to contract with a private business to administer the system. Gov't Code § 441.133.

The act also authorizes the Commission to establish a program of state grants, including:

(1) system operation grants, to strengthen major resource system services to member libraries and regional library system services to member libraries, including grants to reimburse other libraries for providing specialized services to major resource systems and regional library systems;

(2) incentive grants, to encourage libraries to join together into larger units of service in order to meet criteria for major resource system membership or regional library system membership;

(3) establishment grants, to help establish libraries that will qualify for major resource system membership or regional library system membership in communities without library service; and

(4) equalization grants, to help libraries in communities with relatively limited taxable resources to meet criteria for major resource system membership or regional library system membership.

See Gov't Code, § 441.135.

Your questions present a threshold issue: whether the Library Service Act permits non-public libraries to be members of major resource systems, the constituent elements of a regional library system. Section 441.127 of the Government Code requires that a library applying for membership in a major resource system must be accredited by the Library and Archives Commission as having met the accreditation standards established by the Commission. The act defines "accreditation of libraries" to mean "the evaluation and rating of public libraries and library systems according to commission accreditation standards" and "accreditation standards" to mean "the criteria established by the commission that a library must meet to be accredited and eligible for membership in a major resource system." (Emphasis added). Gov't Code § 441.122(1), (2). According to these definitions, only a public library can be accredited, and accreditation is a statutory prerequisite for membership in a major resource system. Regional library systems in turn can be composed only of major resource systems. In other words, the statutes unambiguously restrict the membership of regional library systems to public libraries. Thus, the legislature has not authorized the participation of non-public libraries in any of the ventures of a regional library system as members of the system. Your funds may therefore go only to regional library systems in compliance with the statute.

We note that section 441.128(d) does permit the

governing body or managing authority of a regional library system [to] enter into agreements with the governing bodies of other libraries, including other public libraries, school libraries and media centers, academic libraries, technical information and research libraries, or systems of those libraries, to provide or receive specialized resources and services. The Commission shall coordinate and encourage the dissemination of specialized resources and services and may adopt rules for the contracts and agreements authorized by this subsection. (Emphasis added.)

Gov't Code, § 441.128(d).

We conclude that this language represents authorization by the legislature sufficient to permit regional library systems to enter into contracts with non-public libraries for the purchase or sale of "specialized resources and services." Because such arrangements would be in the nature of contracts necessarily based on adequate consideration to the public, they would not be unconstitutional donations of public funds.

SUMMARY

Regional library systems established pursuant to the Library Systems Act may have as members only public libraries as defined in section 441.122(9), (12) of the Government Code. Regional library systems may contract with non-public libraries for the purchase or sale of specialized resources and services. Gov't Code, § 441.128(d).

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Don Bustion
Assistant Attorney General