Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
December 18, 1979
MARK WHITE
Attorney General
Honorable Charles Murphy, Director Opinion No. MW-10 4
Texas Aeronautics Commission
P. 0. Box 12607, Capitol Station Re: Authority of the legislature
410 East 5th Street to direct the charging of fees
Austin, Texas 78711 through riders to the General
Appropriations Act.
Dear Mr. Murphy:
You have requested our opinion whether the legislature, through a
rider to the General Appropriations Act, may validly direct the Texas
Aeronautics Commission to chame a reasonable fee for the publication
entitled Texas Airport Directory. -
The commission’s authority to publish the Directory and other such
publications is found in the general law in article 46c6, subdivision 8,
V.T.C.S, which reeds in pertinent part:
The Commission may isme such aeronautical p&lie&
tions as may be required in the public interest
This statute includes no specific grant of authority for thi commission
to set or charge fees for such publications, and statutes are “strictly
construed against fixing a fee by implication, as regards both the fixing of
the fee end the officer entitled thereto.” Moore v. Sheppard, 192 S.W.2d
559, 561 (Tex 1946). Therefore, the commission has no authority under
article 46c-6, subdivision 8 to set or collect a fee for the Directory.
However, article 4413(33), V.T.C.S., relates to the charge for sale of
publications of executive departments and state agencies, and provides in
section 1 that:
Any.depertment or agency in the executive branch
of the state government may, unless otherwise
specifically directed by statute, set and collect a
sales charge for DUbliCatiOnS end other Drinted matter
when SUCKcharges are deemed to be in the public
interest
P- 324
Honorable Charles Murphy - Page Two (MW-104)
(Emphasis added.
Thus, article 44l3(33) clearly permits the Texas Aeronautics Commission, at its
discretion end when it deems it in the public interest to do so, to set end charge a fee for
any or all of the publications authorized by article 46~6, subdivision 8.
But, by rider to the General Appropriations Act of 1979, the legislature attempts to
direct the commission to set a fee for the Diectory. The specific language is found in
article III, at III-8 of the act, end states:
The Commission is hereby directed to set a reasonable fee for the
publication entitled Texas Airport Directory. Fun& received from
sale of the publication shall be deposited to the General Revenue
Fund
It is settled law in Texas that a rider attached to a general appropriation bill cannot
repeal, modify or amend an existing general law. See Attorney General Opinions V-1254,
V-1253 (1951), and cases cited The legislature cannot make mandatory by a general
appropriation rider that which the general law makes permissive or discretionary. &
In Attorney General Opinion MW-51 (19791, the above Opinion V-1254 was relied
upon, and stated:
. . . a general appropriation bill may contain any provisions or
riders which detail, limit, or restrict the use of funds or otherwise
insure that the money is spent for the required activity for which it
is therein appropriated, if the provisions or riders are necessarily
connected with end incidental to the appropriation and use of the
fun&, and provided they do not conflict with general legislation.
As ln the case of MW-51, which dealt in this instance with a General Appropriations
Act rider directing the State Board of Control to set certain minimum and maximum
pad&g rates, the rider directing the Commission to set e reasonable fee for the Directory
“neither appropriates nor details, limits or restricts the use of funds.” It is instead a
general directive to the Texas Aeronautics Commission to take certain affirmative action,
and it may not validly be included in the General Appropriations Act.
Furthermore, the language of the rider directing that funds “received from sale of
the publication shall be deposited to the General Revenue Fund’ conflicts with the general
law stated in section 3 of article 4413(33), which provides that:
Money collected from the chalges authorized by this Act shall be
deposited in the fund from which the costs of printing the
respective publications or materiels were onginelly pald, end such
moneys shall be subject to epproprlatlon by the Legislature.
(Emphasis added.
P. 325
Honorable Charles Murphy - Page Three (NW-104)
SUMMARY
The Texas Aeronautics Commission has the authority to set and
charge a fee for its publications issued in the public interest. A
General Appropriations Act rider directing the Texas Aeronautics
Commission to set a reasonable fee for the publication entitled
Texas Airport Directory is invalid since it is an attempt to enact
general legislation in the appropriations act.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bob Gemmage
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairmen
David B. Brooks
Walter Davis
Bob Gemmage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
P. 326