Untitled Texas Attorney General Opinion ( 1951 )

August 24, 1951
3309. Jaclt H. :Dr+e Opinion No. V-1253
Executive Sqcr6tary
Texas Citiua Commisbiod Re: Constitutionality of Subdivi-
Weglscb, Texar sion (15), Section 2 of Arti-
. .
cle 111, H.B. 426, Acts 52ad
Lea. (1951) dealing with the
. ,... .
purchase and *ale of certain
pasketlger carryin& motor
vehicles.
h ri hhve r e q q d d d i n opinion of &is officd on thc
coh-.
stitutionality of Wci provirion8 relatin$ to State-owned a'utomobilcis
i n House.Bill426; the general'appropriation...bill for:..the. biennium
: -
ending '.Ani@f
,.
3.1, 1953, a s .follows:
. . . . ~
1. I s '&pr&iaio,* prohibiting.purchase of motor-. ,
prDpelled pdssengir-carrying vehicles with funds appro-
priated by tl* 'bill constitutional? . '. . .
2 . I= the provision declaring such presently owned
vehicles no longpr needed and requiring their sale and
disposal constitutional?
Hon. George W . C&, State Health Officer; Won. C. E.
Belk, Administrator of t h e Teiths State Board of Plumbing Examin-
e r s ; "Hob. H.A;'Blckwith, Chairman of thk 'Board of.Water Engi-
neerb: 'IEoci.'.Robert S..Caiv&rt; Coinp*oller of Public Accounts;
and an: 'Jesse James. State 'Treasurer, have pending in this office
requests f o r . opinionswhicli relate t o ~
. n. or
e. both of,the same ques-
tions. . . .
That part of House Bill 426 relevant to your inquiry is
a rider i n the general appropriation bill contained i n .subdivision
(15)' Section 2, Article 111, a s follows:
"All State-owned motor-propelled passenger-
carryingvehicles under the control of any department,
commission, board, or other State agency a r e hereby
declared to be no longer needed. Such motor-prppelled
passenger-carrying vehicles shall be sold i n compli-
ance with and a8 provided for in Article 666, Revised
Civil Statutes of Texas, a s amended, or otherwise a s
provided by law, not later than October 1. 1951. No
150 Hon. Jack H. Drake, Page 2 (V-1253)
motor-propelled passenger-carrying vehicle may be
purchased with any of the funds appropriated in this
Article, provided, however, that these provisions of
this Section in regard to the sale and purchase of
motor-propelled passenger-carrying vehicles shall
not apply to the Executive Department, State Highway I
Department, Department of Public Safety, Game, F i s h l
and Oyster Commission and the Railroad Commission.
provided that the Railroad Commission shall only keep
and have in its possession not to exceed twenty (20)
motor-propelled passenger-carrying vehicles and the
Texrs Prison System shall only keep and have in i t s
possession those vehicles equipped with two-way radios.
Notices shall be given in writing to persons now using
said vehicles of the time and place they a r e going to be
sold i n order that such persons may have an opportu-
nity to bid on said motor-propelled passenger-carrying
vehicles."
The constitutional provision which controls the valid-
ity of the rider i s Section 35 of Article 111 of the Texas Constitu-
tion, which provides:
"No bill, (except general appropriation bills, which
may embrace the various subjectfi and accounts, f o r and
on account of which moneys a r e appropriated), shall con-
tain more than one subject, which shall be expressed in
i t s title. But if any subject shall be embraced i n an act,
which shall not be expressed in the title, such act shall
be void only a s to s o much thereof, a s shall not be s o ex-
pressed. " . .
The Supreme Court, in Stone v. Brown, 54 Tex. 330. 342
(1881), asserted that the principal object of this provision
" . .
, i s to advise the legislature and the people of the
nature of each particular bill, so a s to prevent the in-
sertion of obnoxious clauses, which otherwise might
be engrafted thereupon and become the law; and also to
prevent combinations, whereby would be concentrated
the votes of the friends of different measures, none of
which could pass singly; thus causing each bill to stand
on its own merits. *I .
With specific reference to the reason for this type of
constitutional limitation in the case of appropriation bills. the Su-
preme Court of Oregon said:
Hon. Jack H. Drake, Page 3 (V-1253)
U
The evident purpose of this provision was to
prevent matters foreign to the general purpose of ap-
propriation bills being attached to them a s riders.
thereby taking advantage of the necessity of the state
for money to defray its current expenses and to pay
i t s officers to pass measures that perhaps would
otherwise have been defeated." EV-anhofiv. State In-
dustrial Accident Commission. . )5-1
In dealing with Section 35 of Article III a rule of lib-
e r a l interpretation has always been applied. The tendency of the
decisions $s to construe the constitutional provisions on this sub-
ject literally rather than to embarrass legislation by a construc-
tion whose strictness is unnecessary to the acc mplishment of
the beneficial purpose for which i t was adopted? But a t the same
time the Court has been careful to point out, a s was originally
done by Chief Justice Hemphill in Cannon v. Hemphill. 7 Tex. 208
(1851). that this provision cannot be ignored arid thus nullified.
.With reference to general appropriation bills, the Su-
preme Court of Texas has held that "the appropriating of funds to
be paid from the State Treasury is a 'subject' ~ i t h i n
the meaning
of Article 111, Section 35, of our Constitution." It is clear from
the terms of the constitqtional provision that general appropria-
tion bills may contain more than one subject of this same nature,
i.e., appropriations for the various departments and accounts,
The exception of general appropriation bills from the constitu-
tional prohibition against bills containing more than one subject
i s a limited and restricted exception. The exact wording is
4.
...
except general appropriation bills, which may
embrace the various subjects and accounts, for and
on account of which moneys a r e to be appropriated
..."
Aa long a s a general appropriation bill includes only
subjects of appropriating money and limiting the use thereof in
harmony with general legislation, i t may relate to any number of
different "subjects and accounts." In such instances all of the
subjects a r e under the one general object and purpose of appro-
priating funds from the treasury. The obvious purpose of this
limited exception was to make certain that appropriations to more
than one department in the same bill would not be prohibited. In
1 Giddinks v. San Arltonio, 47 Tex. 548 (1877); Dellinger v.
State, 28 S.W.Zd 537 e ex.
Grim. App. 1930).
2 Moora v. Sheppard, 144 Tex. 537, 192 S.W.2d 559 (1946).
3x2 Hon. Jack H. Drake. Page 4 (V-1253)
all other respects general appropriation bills a r e subject to the
same prohibition a s all other bills against containing more than
one subject. The result is that general legislation cannot be em-
bodied within a general appropriation bill. Moore v. Sheppard.
-
supra.
This does not mean that a general appropriation bill
may not contain general provisions and details limiting and r e -
stricting the use of the funds therein appropriated, if such pro-
visions a r e necessarily connected with and incidental to the ap-
propriation and use of the funds and if they do not conflict with
br amount 10general legislation. Conley v. Daughters of the
Republic. 106 Tex. 80, 156 S.W. 1 9 m 9 1 3 ) .
I
With special regard to what incidental provisions may t
be included within a general appropriation bill, our Texas courts
have not stated a general rule. However, from statements a s to
what may not be included and from numerous opinions of the At-
torney General, we believe the rule may be stated generally as
follows: In addition to appropriating money and stipulating the
amount, manner, and purpose of the various items of expenditure,
a general appropriation bill may contain any provisions or riders
which detail, limit, or r e s t r i c t the use of the f k d s o r otherwise
insure that the money i s spent for the required activity for which
it i s therein appropriated, if the provisions or riders a r e neces-
sarily connected with and incidental to the appropriation and use
of the funds, and provided they do not conflict with general legis-
lation. See Linden v. Finley, 92 Tex, 451. 49 S.W. 578 (1899) and
Conley v. Daughters of the Republic, supra. An extended discus-
sion of this rule will be found in a n opinion of the Attorney General
now being written to the Governor on the general subject of riders
in a general appropriation bill.
Applying the above rule to your first question, it i s
obvious that that part of the rider which provides that "No motor-
propelled passenger-carrying vehicle may be purchased with any
of the funds appropriated in this article" is a mere limitation and
restriction upon the use of the money appropriated by House Bill
426. I t is necessarily connected with and incidental to the appro-
priation and is not a n additional subject of general legislation.
We have found no general statute with which it conflicts. There-
fore, i t is valid.
Applying the same rule to your second question and
that part of the rider which declares certain State-owned passen-
ger vehicles to be no Longer needed and requires that they shall
be sold, we find no basis for its validity in a general appropriation
bill. It does not detail, limit or restrict the use of funds therein
appropriated o r otherwise insure that appropriated money w i l l be
Hon. Jack H. Drake, Page 5 (V-1253)
spent for the purpose intended. It is not incidental to any appro-
priation in the Act. Obviously, it deals with a subject other than
money appropriations. It attempts to do more than appropriate
money and i s therefore a subject of general legislation3 which
cannot be constitutionally enacted in a general appropriation bill.
Moore v. Sheppard, supra; Att'y Gen. Op. No. 0-445 (1939).
If the Legislature can order the sate of State-owned
automobiles in a general appropriation bill rider, i t can by the
same means order the sale of State office buildings, public school
lands, o r any other State-owned property. The very statement of
the proposition demonstrates that sale of State property is a sub-
ject of general legislation separate from and unrelated to the gen-
e r a l appropriation of money to operate the State agencies. It i s
a subject which should have the full consideration, opportunity for
public notice and hearings, and opportunity for amendment o r re-
jection afforded general legislation but usually denied to subjects
incorporated a s r i d e r s in a general appropriation bill.
The provision for the sale of the State-owned vehicles
is also invalid because in violation of that portion of Section 35 of
Article I11 of the Texas Constitution which states that the subject
of a bill".. . shall be expressed in its title. But i f any subject
shall be embraced in a n act, which shall not be expressed i n the
title, such act shall be void only a s to s o much thereof, a s shall
not be s o expressed."
There is nothing whatever in the caption o r title of
House Bill 426 which could be construed to cover the provision o r
to put a legislator o r the public on notice that the bill contained a
requirement that certain State-owned passenger c a r s were to be
sold. The title is long, but we have searched it carefully. The on-
iy mention of any subject contained i n subdivision (15) is the phrase
'providing certain limitations on the purchase of passenger motor
vehicle^."^ This adequately covers and gives notice of the pro-
hibition against urchasin new c a r s , but it cannot be said to do s o
E---fB
with reference to the s e e of presently owned passenger c a r s ,
The rule governing narrow title provisions is well
stated in 50 American Jurisprudence 162, Statutes, Section 183,
a s follows:
3 It i s significant in this connection that a separate bill
(H.B. 271) with provisions similar to those of subdivision (15) was
introduced and passed the House, but failed to pass in the Senate.
4 Emphasis added throughout.
Hon. Jack H. Drake. Page 6 (V-1253)
" ...
Under these rules, if a title i s narrow
and restricted, carving out for treatment only a part
of a general subject, the legislation under i t must be
confined within the same limits. even though the Leg-
islature might, with propriety, have selected a more
comprehensive title which would have embraced the
entire subject of legislation.'
The Supreme Court of Texas has uniformlv held that
acts broad in scope, but with narrow and restricted tities. a r e in
violation of Section 35 of Article 111. In Arnold v. Leonard. 114
Tex. 535, 273 S.W. 799 (1925), the Supreme Court said:
4,
The caption i s not content to state a purpose to
amend certain statutes, but proceeds to specify the
nature of the proposed amendment. Thus the caption
declares that the amendment consists of a provision
authorizing the wife, on order of the district court, to
convey her separate real estate, bonds, and stocks
without joinder by her husband, when he is insane o r
has permanently abandoned his wife. This language
not only gives no notice of an intention to change the
status of certain property from community property
to the.wifels separate property. but completely dis-
guises any such intention. A caption concealing the
true purpose of a statute, and stating an altogether dis-
tinct and foreign purpose. is necessarily deceptive, and
cannot be sustained a s complying with section 35 of
article 3 of the Constitution. Ward Cattle & Pasture
Co. v. Carpenter. 109 Tex. 105, 200 S.W. 521."
An earlier case striking down a portion of a statutebe-
cause of a narrow caption was Adams v. San Angelo Waterworks
Company. 86 Tcx. 485, 25 S.W. 605 (1894). Therein the Supreme
Court said:
a,
. .. The first section of the act in question
grants to any incorporated city o r town the power to
condemn property 'for the construction of water mains
o r supply reservoirs or standpipes for waterworks.'
a s well a s for certain other purposes, and provides
that 'any company or corporation chartered under the
laws of this state for the purpose of constructing water-
works, or furnishing water supply for any town or city,
shall have the same right to condemn property neces-
s a r y for the construction of supply reservoirs o r stand-
pipes for waterworks when deemed necessary to pre-
serve the public health, that is given towns and cities
under this act.' The title of the act i s a s follows:
35:-
Hon. Jack H. Drake, Page 7 (V-1253)
'An act to amend an act to regulate the condemnation
of property in cities and towns, for the purpose of open-
ing, widening or changing public streets o r avenues o r
alleys, o r for water mains or sewers, approved March
28, 1883. .. .''
The caption being restricted to condemnation for
water mains or sewers and other specified purposes, the portion
of the body of the act allowing condemnation for reservoirs and
standpipes was held to violate the caption requirements of Article
111, Section 35.
The above cases, along with Gulf Insurance Go. v.
James, 143 Tex. 424. 185 S.W.2d 966 (1945); Hoch v. Hoch, 140
-5, 168 S.W.2d 638 (1943); Ward Cattle and Pasture Com-
pany v. Carpenter. 109 Tex. 103,
duction Gompany v. Garrett. 119 : ~ ~ . S ~ ~ ' ~ ~ ' Gulf Pro-
and Texas-Louisisna Power Co. v. City of FarmersviIle; 67 S.W.
2d 235 (Tex. Comm. App. 14331, all support the proposition that
if the title is narrow, then the portions of the act broader than the
title a r t invalid because the narrow title is deceptive and mislead-
ing.
Here we hsve a caption saying with reference to paa-
senger automobiles only that the Act provides "certain limitations
on the urchase of passenger motor vehicles," but the body of the
%-
bill actua y contains in addition to limitations on the purchase of
c a r s the further provision that, with certain exceptions, a l l State-
owned passenger vehicles shall., bethesold. A s stated in GuIf Insur-
ance Go. v. Tames, su ra.
-t$-
... title to the act, a s drawn, 1 is]
capable of misleading ose interested in the bill." The title to
the aiit being narrowed to regulations governing the purchase of
motor vehicles, that portion of the body which attempts to provide
-
for the sale of certain State-owned motor vehicles is invalid.
SUMMARY
That portion of subd. (151, Sac. 2. Art. 111, H.B.
426, Acts 5Znd Leg. (1951), a rider in the general ap-
propriation bill, requiring the sala of certain State-
owned 'motor-propelled passenger-carrying" vehicles,
i s invalid because it is a subject of general legislation
and cannot be constitutionally enacted in a general ap-
propriation bill. In this respect i t violates Sec. 35 of
Art. I11 of the Texas Constitution. The rider is also
invalid because it i s not covered by the caption or title
of the Act, the title being restricted to "purchase" of
new cars and making no mention of "sale" of presently
owned automobiles.
Hon. Jack H. Drake, Page 8 (V-1253)
That portion of the general appropriation bill l
r i d e r which prohibits the purchase of new automobiles l
out of funds therein appropriated is a m e r e limitation
and restriction upon the use of the money. Since i t is
incidental to the appropriation and is not a n additional
subject oi general legislation, this provision docs not
violate Sec. 35, Art, 111 of the Texas Constitution and
is therefore valid.
Yours v e r y truly,
2~2l-J I
Attorney General
I