Untitled Texas Attorney General Opinion ( 1972 )

Honorable Robert S. Calvert Opinion No. M- 1199
Comptroller of Public Accounts -
State Finance Building Re: Validity ,of riders in the
Austin, Texas 78711 1971 General Appropriations
Act, (Acts of 62nd Leg.,
R.S. 1971, Chap. 1047, pages
Dear Mr. Calvert: 3421, et seq.).
You have requested our opinion on the
. validity
_ of 45 rid-
.. .
ers in the current 1971 General Appropriations Act wnicn are
quoted in separate paragraphs as you have numbered them with
our opinion following the verbatim quotation of the rider.
Certain general principles of constitutional law are ap-
plicable to the validity of such riders. These principles may
be summarized as follows:
An appropriation bill may detail, limit or restrict the
use of funds therein appropriated or otherwise insure that the
appropriated money will be spent for the purpose intended.
Moore v. Sheppared, 144 Tex. 537, 192 S.W.Zd 559 (1946); Linden
v. Finley, 92 Tex. 451, 49 S.W. 578 (1899); Attorney General'
Opinions O-445 (1939), V-1253 (1951), V-1254 (1951), 2959
(1935), V-1196 (1951).
A rider attached to the seneral aoorouriation bill cannot
repeal, modify or amend an existing generai law. State v.
Steele, 57 Tex. 203 (1882); Linden v. Finley, supra; Moore v.
* Attorney General's Opinions 1745 (1917), 2787
%%%96?ff%5,, 2970 (19351, o-445 (i939), o-1837 (i940),
G-2573-(1940); O-5329 (1943), V-412 (1947), V-894 (1949),
V-1196 (1951), V-1254 (1951), M-1141 (1972).
If a bill does more than set aside a sum of money, pro-
vide the means of its distribution, and to whom it shall be
distributed, then it is a general law. Attorney General's
Opinions 2965 (1935), V-1254 (1951); Moore v. Sheppard, supra.
The distinction between a general appropriation bill and
general legislation has been recognized in this State in the
-5852-
Hon. Robert S. Calvert, page 2 (M-1199)
simple fact that the former merely sets apart sums of money for
specific objectives and uses while the latter does more than
merely appropriate and limit the use of funds. General legis-
lation constitutes a separate subject and cannot be included
within a general appropriation bill. Moore v. Shepp ar;,v~y;;f;
Attorney General's Opinions 2965 (1935), V-1254 (19 1)
(1951), WW-294 (19571, WW-310 (19571, H-280A (1968):
.
The veto power of the Governor is a Legislative and not
an Executive or Judicial function, hence the Governor has only
such power as the Constitution confers upon him and he may not
disapprove of certain paragraphs or portions of a bill and ap-
prove the remainder. Fulmore v. Lane, 104 Tex. 499, 140 S.W.
405 (1911): Attorney General's Opinions V-1196 (1951), M-1141
(1972). The Governor has the power to veto only items of an
appropriation bill. The Governor has no authority to veto
a rider in an appropriation bill unless it is in itself an
item of appropriation. Fulmore v. Lane, supra; Attorney
General's Opinion V-1196-il951).
The only authority of the Governor to exercise a substan-
tive veto power over legislation or items of appropriation
is clearly set out in Article IV, Section 14, of the~constitu-
tion of Texas. Where the Constitution has spoken and pre-
empted this matter, the Legislature is without power either
to add to or detract from this constitutional function. In
exercising that veto power, the Governor is exercising a
Legislative and not an Executive or Judicial function. He
has only such power as the Constitution confers upon him;
he cannot disapprove of certain portions of a bill which are
not items of appropriation, and approve the remainder. Fulmore
v. Lane, 104 Tex. 499, 140 S.W. 405 (1911); Annotation, 35
A.L.R. 600, and cited cases: 16 C.J.S. 617, Const. Law. Sec.
139, n. al; 81 C.J.S. 1220, States, Sec. 164, n. 55; and
Attorney General's Opinion V-1196 (1951).
Aside from the constitutional substantive veto power of
the Governor granted in Article IV, Section 14, Texas Consti-
tution, there is no other authority provided for him to have
a continuing veto power over expenditure of appropriated funds.
Any attempt by the Legislature to delegate to the Governor
the power to exercise a continuing veto over such expenditures
and at his own discretion would constitute an attempt to in-
crease the Governor's veto power. Furthermore, if the Legis-
lature attempted to grant such power by a rider in an ap-
propriation bill, such rider would amount to general legislation
-5853-
Hon. Robert S. Calvert, page 3 (M-1199)
in violation of Article III, Section 35, Texas Constitution,
under the authorities cited above.
In Attorney General's Opinion M-1141 (1972), we concluded
that in view of the authorities cited therein, a rider re-
quiring approval of the Governor as a prerequisite to the ex-
penditure of moneys appropriated therein was invalid. See
also Attorney General Opinion No. M-280 (1968).
Applying all of the foregoing principles of constitutional
law to the attached riders, you are advised that it is our
opinion the riders are valid or invalid according to the com-
ments following the language being construed:
1. Page II-43 Section 2, Subsection e, for
Special Provisions, which reads, "Salary
rates in excess of the minimum amounts
specified in Senate Bill No. 116, as
amended, and the salaries of coaches
and teachers of exceptional children,
may be paid with the advance written
approval of the Governor; but such ap-
proved rates shall never exceed the rates
of pay for like positions paid in the
public schools of the'City in which the
State School or Home is located."
That portion requiring written approval of the Governor
is invalid, but the remainder of the provision is valid. In
support of the valid portions, see hW-229 and WW-282.
2. Page III-11 for the Air Control Board which
reads, "None of 'the funds appropriated to
or that are available for use by the Air
Control Board may be expended by the Board
for legal services of any type until the
Attorney General has approved the position
and person to fill the position. The
Comptroller of Public'Accounts shall make
payment for such service only after written
approval has been received from the Attor-
ney General."
This rider is invalid because it is an attempt to enact
general legislation in an appropriation bill. Opinions VW-1461
and M-249 are overruled where such opinions are in conflict
herewith.
-5854-
Hon. Robert S. Calvert, page 4 (M-1199)
3. Page III-16 for Alcoholic Beverage Com-
mission which reads, "None of the funds
appropriated hereinabove to the Texas
Alcoholic Beverage Commission shall be
expended for building rentals without
the written approval of the Governor."
This rider is invalid. M-1141. The provisions of
Article 666b, Vernon's Civil Statutes, apply and Board of
Control approval is necessary without this rider since it
is pre-existing general law.
4. Page III-51 for the Department of Cor-
rections which reads, "It is further pro-
vided that none of the building appropri-
ations made hereinabove shall be expended
unless and until such time as the Depart-
ment of Corrections shall have filed with
the Governor and the Legislative Budget
Board an orderly plan for meeting long
range construction needs of the Department;
and such funds shall be expended only upon
approval of the Governor; provided, however,
that copies of such requests for the Gov-
ernor's approval, and notice of the Gov-
ernor's action on such requests, shall be
filed with the Legislative Budget Board."
This rider is,valid as to informational filing, but is in-
valid as to approval by the Governor since it gives the chief
executive a second veto power. M-1141 and M-280.
5. Page III-51 for the Department of Cor-
rections which reads, "Any unexpended
balances remaining in projects under the
respective items for Building Appropriations
may, with the approval of the Governor, be
transferred and used for the purposes of
completing construction of other projects
enumerated in the same item: provided, how-
ever, that copies of such requests for the
Governor's approval, and notice of the Gov-
ernor's action on such requests, shall be
filed with the Legislative Budget Board."
-5855-
Hon. Robert S. Calvert, page 5 (M-1199)
That portion of the rider requiring the Governor's ap-
proval is invalid: such approval cannot be required, but
that portion requiring filing of information with Budget
Board is valid. M-1141 and V-1254. The agency Board must
vote the transfer of funds.
6. Page III-53 for the Department of Cor-
rections which reads, "The Department of
Corrections is authorized to expend funds
from the Mineral Lease Fund during the
biennium beginning September 1, 1971, to
acquire, by negotiation or condemnation,
parcels of land solely within the peri-
meters of the Coffield Unit. Such ex-
penditures, however, cannot be expended
without the approval of the Governor.
Notice of the Governor's action in such
requests, shall be filed with the Legis-
lative Budget Board."
That portion of the rider requiring the Governor's ap-
proval is invalid; such approval cannot be required, but
that portion requiring the filing of information with Budget
Board is valid. M-1141 and V-1254. The agency Board must
vote the transfer of funds. The old language of this item
reguired approval of the Legislative Budget Board for ex-
penditures. In Opinion V-1254 (1951) we held this violates
the separation of powers (V-1254, pages 13-15).
7. Page III-53 for the Department of Cor-
rections which reads, "Any unexpended
balances as of August 31, 1971, for the
Department of Corrections in the general
appropriations made by the Sixty-first
Legislature, Second Called Session (House
Bill No. 2) for the Center for Continuing
Education in Corrections (Item No. 24,
Page III-551 are hereby reappropriated to
the Department of Corrections for the same
purposes for the biennium beginning Sep-
tember 1, 1971. Provided, however, that
such reappropriated funds shall be expended
only upon approval of the Governor and that
copies of such requests for the Governor's
approval and notice of the Governor's actions
on such requests shall be filed with the
Legislative Budget Board."
-5856-
Hon. Robert S. Calvert, page 6 (M-1199)
That portion of the rider requiring the Governor's ap-
proval is invalid: such approval cannot be required, but
that portion requiring the filing of information with Budget
Board can be required. M-1141 and V-1254. The agency Board
must vote the transfer of funds. The old language of this
item required approval of the Legislative Budget Board for
expenditures. In Opinion V-1254 (1951) we held this violates
the separation of powers (V-1254, pages 13-15).
8. Page III-54 for the Board of Dental Exam-
iners which reads, "Expenditures of opera-
ting appropriations made hereinabove to
the Board of Dental Examiners shall be con-
tingent upon said Board filing with the
Comptroller by not later than the first
day of each fiscal year cove.red by this
Act, a list of all applicants for licenses
to practice dentistry in this State and
of all persons actually granted such licen-
ses for the preceding twelve-month period,
and the basis (whether by reciprocity, by
clinical examination only, or by clinical
and theoretical examination) upon which
such licenses were granted."
This rider is valid and is a simple condition which the
Legislature has the power to impose in an appropriation act.
9. Page III-77 for the Highway Department which
reads "The Highway Department is authorized
to rent or lease equipment of any kind except
office machines and electronic computers.
Office machines will be rented or leased with
prior approval of the State Board of Control.
Electronic computers will be rented or leased
only with the approval of the Governor. This
specific authorization shall be construed to
be an exception to any prohibitions and re-
strictions in the General Provisions of this
Act.
This rider is valid as to Board of Control approval. Ar-
ticle 666b. This rider is invalid as to requiring Governor's
approval, since such approval is not supported by general law
and is a subject which should be covered by the general law.
Further, we think Article 6252-12a is the current general law
on this subject and gives the State Auditor duties in this
respect.
-5857-
Hon. Robert S. Calvert, page 7 (M-1199)
10. Page III-77 for the Highway Department which
reads, "None of the funds appropriated to
the State Highway Department may be expended
for the construction of any District Office
Building at a cost exceeding Sixteen Dollars
($16) per square foot in construction costs,
including engineering and architectural fees,
and no building, regardless of type, contain-
ing more than ten thousand (10,000) square
feet may be constructed without prior ap-
proval of the Governor."
This rider is invalid. M-1141.
11. Page III-98 for the Library and Historical
Commission which reads, "Federal grants made
to or received in Federal Public Library Fund
No. 118 are hereby appropriated for the pur-
poses for which such grants may be made; pro-
vided, however, that none of such moneys may
be expended for personal services without
the advance, written approval of the Governor.
Such authorized classified positions shall
be governed by the provisions of this Act re-
lating to the Position Classification Plan."
This rider is invalid. Article 6252-11, the Position Clas-
sification Act of 1961, governs this area. See also M-1141.
WW-117 allows travel to be paid from this type of Federal
funding.
12. Page III-112 for the Parks and Wildlife De-
partment which reads, "Any Federal grants,
allocations or aids for the conservation and
improvement of yame, fish and wildlife, or
for improving, developing and planning pub-
lic parks, or for any other program or acti-
vity under the statutory authority of the
Parks and Wildlife Department, may be ac-
cepted and disbursed through the State Trea-
sury by said Department for the purposes
for which they were granted and are hereby
appropriated for such purposes: provided,
however, that expenditure of any such Fed-
eral grants, allocations, or aids shall not
exceed the amounts shown in the schedule of
-5858-
Hon. Robert S. Calvert, page 8 (M-1199)
appropriations hereinabove, or for pur-
poses and programs not authorized by said
schedule of appropriations; and shall have
the prior written approval of the Governor."
That portion of the rider requiring the Governor's ap-
proval is invalid. While Opinion M-266 concerns this fund,
no question was there raised as to the validity of requiring
prior approval by the Governor. We further hold that Ar-
ticle 4050d, V.C.S. is the general law pertaining to this
subject and it does not authorize any Governor's approval.
13. Page III-113 for the Parks and Wildlife De-
partment which reads, "None of the funds ap-
propriated above may be expended for the
purchase or rental of additional electronic
data processing equipment without the prior
written approval of the Governor."
We hold this rider invalid because Article 6252a, Vernon's
Civil Statutes, is a general law on this subject and this law
gives powers to the State Auditor: also invalid per M-280,
and M-1141.
14. Page III-113 for the Parks and Wildlife De-
partment which reads, "None of the moneys
appropriated hereinabove by the item, 'State
Comprehensive Outdoor Recreation Plan - for
updating Texas' comprehensive outdoor recre-
ation plan,' may be expended without the
prior, written approval of the Governor, on
a budget which describes each character of
personal services to be rendered, and none
of the moneys in such appropriation item
may be expended for reallocating to a higher
salary group any position in the State's
Position Classification Plan."
We hold this rider invalid insofar as the expenditure re-
quires the approval of the Governor, and without which the ex-
penditure may in effect be vetoed by the Governor. Article
6081r, Vernon's Civil Statutes, is the general law and it
does not provide for Governor's approval; also see Opinion
M-280.
-5859-
Hon. Robert S. Calvert, page 9 (M-1 199)
15. Page III-113 for the Parks and Wildlife De-
partment which reads, "None of the funds
appropriated above may be expended on boats
in excess of 20 feet in length without the
prior written approval of the Governor; pro-
vided, that copies of such requests for the
Governor's approval, and notice of the Gov-
ernor's action on such requests, shall be
filed with the Legislative Budget Board."
This rider is invalid insofar as it requires the Gover-
nor's approval, (M-280), but is valid as to that portion which
requires the filing of information with the Legislative Budget
Board. M-1141.
16. Page III-114 for the Parks and Wildlife De-
partment which reads, "None of the funds
appropriated above may be obligated for
construction of buildings or residences
each costing in excess of $5,000 without
the prior written approval of the Governor."
This rider is invalid, M-280. Sec. 5, of Article 6081n,
Vernon's Civil Statutes is a general law giving the power to
spend funds to the agency.
17. Page III-115 for the Parks and Wildlife De-
partment which reads, "The Parks and Wild-
life Department is hereby authorized within
the limitations of funds appropriated here-
inabove for Exempt Positions and Salaries of
Classified Positions, to establish new and/or
reclassify existing salaried positions for
the purpose of implementing all or parts of
the Management Study completed on May 25,
1970. Provided, however, that any changes
in classified positions made for this pur-
pose, shall have the prior approval of both
the Classification Officer and the Legislative
Audit Committee, and that any changes in
exempt positions made for this purpose, shall
have the prior approval of the Governor."
This rider is invalid. Article 6252-11, Vernon's Civil
Statutes, is a general law covering this matter.
-5860~
18. Page III-125 for the Texas Rehabilitation Com-
mission which reads, "It is also provided
that, in the event of expansions of Federal
programs, additional Federal funds becoming
available may be used to employ additional
personnel necessary to carry out the expanded
programs, but only with the advance approval
of the Governor; provided, however, that
copies of such requests for the Governor's
approval, and notice of the Governor's action
on such requests, shall be filed with the
Legislative Budget Board.*
The requirement for informational filing for budget rea-
sons is valid, but the approval by the Governor is invalid.
M-208 and 1141.
19. Page III-133 for Department of Public Safety
which reads, "The Department of Public Safety
is authorized to own and operate six (6) air-
planes and seven (7) helicopters only. None
of the funds appropriated above shall be ex-
pended for the purchase of airplanes or heli-
copters without the specific approval of the
Governor. w
This rider is invalid. M-280, M-280A, and M-1141.
20. Page III-133 for Department of Public Safety
which reads, "From the amounts appropriated
out of the Operator's and Chauffeur's License
Fund for the support and maintenance of the
Department of Public Safety, an amount not
to exceed One Hundred and Twenty Thousand
Dollars ($120,000) for each year of the bien-
nium beginning September 1, 1971, is hereby
designated for the purchase of evidence and/
or information and surveillance expenses
deemed necessary by the Department of Public
Safety; ard accountability for expenditures
as set forth above shall be governed by such
rules and regulations as the Director of the
Department of Public Safety may recommend,
subject to approval by the State Auditor."
-5861-
Hon. Robert S. Calvert, page 11 (M-1199)
This rider is invalid to the extent that the approval of
the State Auditor is required over the rules and regulations
as to expenditures. C-447 (1965).
21. Page III-136 for Securities Board, which
reads, "Emergency transfer of funds between
Item 6, 'For salaries of classified positions,
part-time and seasonal help, professional fees
and,services and witness fees,' and Item 7,
'Consumable supplies and materials, current
and recurring operating expense (including
travel) and capital outlay,' is authorized
upon approval of the Governor."
This rider is invalid only to the extent that it provides
for the Governor's approval as a condition.
22. Page III-141 for Texas Mass Transportation
Commission which reads, "None of the moneys
appropriated above may be expended without
the prior approval of the Governor."
This rider is invalid. M-280, M-280A, and M-1141.
23. Page III-149 for Water Development Board
which reads, "Those funds allocated by the
Water Development Board under the appropri-
ation for topographic mapping, water studies
and investigations shall be used for ground
water, surface water, chemical quality in-
vestigations, sediment sampling studies,
playa lake modification studies, studies of
the Little Wichita River and other West
Texas streams, and the operation of evapo-
ration stations, to implement the Upper
Sabine Study Contract and shall include
statistical compilations and hydrological
and other studies and investigations by the
State, or in cooperation or by contract
with other govermental agencies, institu-
tions or non-governmental entities, and
may include hourly wages and contract ser-
vices. Provided, however, that no such
expenditures may be made without the prior
written approval of the Governor on a
-5862-
Hon. Robert S. Calvert, page 12 (M-1199)
budget for expenditures which describes each
character and object or purpose of obligations
to be incurred."
This rider is invalid insofar as the Governor's approval
is required. M-280, M-280A, and M-1141.
24. Page III-160 for Department of Public Welfare
which reads, "In the event of disaster or
other unforeseeable contingency, there is
hereby appropriated out of the Commodity
Distribution Fund No. 39, an additional
amount not to exceed $30,000 for the pay-
ment of salaries and wages, travel and other
operating expenses, provided that expenditure
of this additional appropriation must be ap-
proved in advance by the Governor, and any
position titles and rates of pay required
shall be approved by the State Classification
Officer."
This rider is invalid as an unauthorized delegation of
power, and confers an unbridled discretion, without any stand-
ards or guidelines, upon the Governor. The requirement of
the Governor's approval is also invalid.
25. Page III-165 Special Provisions Riders,
which reads, "It is further provided that
none of the moneys appropriated in this
Article may be expended for the rental of
warehouse space in Austin, Texas, for the
purpose of storing records or documents
without the prior approval of the State
Director-Librarian."
Article 5435, 5441a, and 5441d, Vernon's Civil Statutes,
contain the general law. This rider is surplusage insofar as
it states the general law, and is invalid to the extent that
it may conflict therewith.
26. Page 1X1-165, Section 6, Subsection c, Spe-
cial Provisions Riders, which reads, "When-
ever the State Auditor determines that a
Petty Cash Revolving Fund is desirable for
-5863-
Hon. Robert S. CalVert, page 13 (M-1199)
a particular department or agency, the
Comptroller of Public Accounts shall draw
a warrant payable to a local bank on
vouchers issued by the department or
agency; provided, however, such initial
vouchers must bear the approval of the
State Auditor. Thereafter, such petty
cash revolving fund in the local bank may
be expended by checks signed by a bonded
employee of the department or agency de-
signated by the head of the department or
agency to administer such fund. Disburse-
ments from the petty cash revolving fund
shall be reimbursed from appropriations made
for the purposes for which the expenditure
was made, and each expenditure from the
petty cash revolving fund be supported by
a cash disbursement voucher. In the event
of an abuse or unwarranted use of any petty
cash revolving fund, the State Auditor
shall advise the Comptroller of Public Ac-
counts to call in immediately the re-
sources of such funds."
This rider is invalid because it seeks to change the
general laws on deposit of public moneys in the treasury
without amending such statutes.
27. Page IV-2 for Central Education Agency
which reads, "The Texas Central Education
Agency is authorized to employ personnel
in Agency Administration only in the line-
item positions listed above and in those
positions listed in the 'Schedule of
Classified Positions, Agency Administration,'
below. It is provided, however, that in
the event of expansion of Federal programs
or inauguration of new State-Federal prog-
rams the State's responsibility for which
lies with the Central Education Agency,
additional positions in excess of the number
limitations in the 'Schedule of Classified
Positions, Agency Administration' may be
utilized, but only with the advance approval
of the Governor."
-5864-
Hon. Robert S. Calvert, page 14 (M-1199)
This rider is invalid to the extent that the Governor's
approval is required, and the balance of the rider is valid.
28. Page IV-13 for School for the Blind and School
for the Deaf which reads, "However, such
recommended salary rates in excess of the min-
imum amounts specified in said Senate Bill No.
116, as amended, and the salaries of coaches
and teachers of exceptional children, may not
be paid without the advance written approval
of the Governor: but such approved rates shall
never exceed the rates of pay for like posi-
tions paid in the Austin public schools."
This rider is invalid to the extent of requiring the Gov-
ernor's approval, and the balance of the rider is valid.
29 . Page IV-26 for the University of Texas at
Austin which reads, "None,of the funds approp-
riated above to the University of Texas at
Austin for the item 'Labor and Management
Education and Research' may be expended until
a committee is appointed by the President of
the University of Texas at Austin to adminis-
ter this program. This committee shall be
composed of persons who represent either
management or labor and the representation
on this committee shall be equal between
labor and management leaders from the State.
The appointment of these members shall be
approved by the Governor. The committee
shall appoint a director who must be ap-
proved by both labor and management through
their representatives on this committee."
This rider is invalid because it amounts to general legis-
lation in the Appropriation Act.
30. Page IV-72 for Texas State Technical Insti-
tute which reads, "None of the funds ap-
propriated above to the Texas State Techni-
cal Institute may be expended without the
prior approval of an annual operating budget
by the Governor; provided, however, copies
of such requests for the Governor's action
thereon, shall be filed with the Legislative
Budget Board."
-5865-
Hon. Robert S. Calvert, page 15. (M-1199)
This rider is invalid, C-441.
31. Page IV-72 for Texas State Technical Insti-
tute which reads, "Any architectural fees
paid from funds appropriated hereinabove shall
have the prior written approval of the Gover-
nor."
This rider is invalid, M-280 and M-280-A.
32. Page IV-73 for Texas State Technical Insti-
tute which reads, "None of the funds appro-
priated hereinabove to Texas State Technical
Institute may be expended for maintenance and
operation of any aircraft without the prior
written approval of the Governor."
This rider is invalid. See M-280, M-280A, and M-1141.
33. Page IV-al, Section 37, Special Provisions
Relating to State Agencies of Higher Educa-
tion which reads, "PRESIDENTS' HOMES. No
funds appropriated by this Act may be used
for the purpose of constructing a home for
a president of any of the general academic
teaching institutions named herein, without
obtaining the approval of the Governor prior
to obligating any funds for this purpose;
provided, however, that copies of such requests
for the Governor's approval, and notice of
the Governor's action on such requests, shall
be filed with the Legislative Budget Board."
This rider is invalid because it constitutes general
legislation. See M-280, 280-A, and M-1141.
34. Page IV-al, Section 38, Special Provisions
Relating to State Agencies of Higher Educa-
tion which reads, "BUILDING CONSTRUCTION.
Prior to the allocation, expenditure or en-
cumbrance of any funds appropriated by this
Act, including funds provided through Article
VII, Sections 17 and 18, of the State Con-
stitution, for individual building construc-
tion projects costing in excess of twenty-
five thousand dollars ($25,000), other than
-5866-
Hon. Robert S. Calvert, page 16. (M-1199)
classroom library and laboratory building
projects, the planned expenditure of such
funds shall be approved by the Governor:
provided, however, that copies of such re-
quests for the Governor's approval, and
notice of the Governor's action on such re-
quests, shall be filed with the Legislative
Budget Board."
This rider is invalid insofar as the Governor's approval
is required. While the Legislature can require information
filinq with the Governor and with the Legislative Budget
Board; the requirement of the Governor's-approval is invalid.
See N-280, 280-A, and M-1141.
35. Page IV-82, Section 43, Special Provisions
Relating to State Agencies of Higher Educa-
tion which reads, "SALARY REPORTING. None
of the funds appropriated to institutions of
higher education by this Act shall be expended
for payment of salary to any person whose sala-
ry is being supplemented from other than ap-
propriated funds until a report showing the
amount of salary being paid from other sources
has been reported to the Secretary of State."
This rider is valid and is a simple condition which the
Legislature has the power to impose in an Appropriation Act.
36. Page V-28 Salary Provisions which reads, "An
employee whose classified position is re-
allocated by this Act to a higher salary
group shall receive the step 1 rate in the
higher salary group or the rate which he would
have received had his classified position
not been reallocated, whichever rate is higher.
Provided, however, an employee whose classified
position is reallocated by this Act to a higher
salary group, may have his salary adjusted
not more than two steps higher than otherwise
provided by this section. Such additional
adjustment shall be for the purpose of main-
taining desirable salary relationships among
employees in the affected positions, and shall
have the prior approval of the Legislative
Audit Committee."
-5867-
.
Hon. Robert S. Calvert, page 17 (M-1199)
This rider is invalid insofar as requiring approval of
the Legislative Audit Committee. Article 6252-11 contains
the general law on the subject of classified salary positions
and to the extent that the rider is not in conflict there-
with, it is otherwise valid.
37. Page V-42, Section 15, Subsection b.,
Travel Regulations, which reads,
"Employees of the Governor's office
and employees of other State agencies
designated by the Governor to repre-
sent him at govermental meetings or
conferences when held out of the State
shall receive actual meal, lodging,
and incidental expenses. State offi-
cials and employees who travel to rep-
resent the Governor at governmental
meetings or conferences may be reim-
bursed for their expenses out of ap-
propriations made to the agencies by
which they are employed."
This rider is valid because it is a reasonable direction
as to the use of appropriated funds.
38. Page V-43, Section 18, Subsection a.,
Travel Regulations, which reads,
"PASSENGER VEHICLES. None of the
moneys appropriated in this Act may
be expended for the purchase, mainte-
nance or operation of a passenger car
or of airplanes designed for passenger
transportation unless authority to do
so is stated by the language of this
Act. Where such authority is stated,
the purchase of an airplane, or the
repair of an airplane, the cost of
which is in excess of five thousand
dollars ($5,0001, in any one fiscal
year shall have the prior written ap-
proval of the Governor, and notice of
such approval shall be filed with the
Legislative Budget Board."
This rider is invalid only to the extent of the require-
ment of the Governor's approval. Opinion M-999 isoverruled
to that extent.
-5868-
Hon. Robert S. Calvert, page 18 (M-1199)
39. Page V-44, Section 21, Other Provisions,
which reads, "REPORTING APPEARANCES BEFORE
FEDERAL AND STATE AGENCIES. The Governor's
office may require agencies of the State
of Texas appearing before Federal agencies
or agencies of other states to submit in
writing to the Governor the purpose of such
meetings and expression of the policies of
the State agency concerning the subject
matter of the meeting. After reviewing the
policies, the Governor may require the State
agency to conform to the policies of the
State of Texas as outlined by the Governor
and the'Legislature before funds appropriated
in this Act may be expended for necessary
travel and other expenses connected with
such appearances."
This rider is invalid because it is general legislation
in a state appropriation bill.
40. Page V-46, Section 32, Other Provisions,
which reads, "AUDITS. None of the appropri-
ations herein made shall be used to employ
any firm or person to audit the books of
any department, board, commission, institu-
tion or State agency, this being the duty
of the State Auditor; provided, however,
that in any instances where the funds avail-
able to said State Auditor are not, in his
judgment, sufficient for any requested or
contemplated audit, the department head or
heads having authority to disburse the
appropriations herein made are hereby auth-
orized to direct the State Comptroller to
transfer from any appropriations to the
appropriation herein made for the State
Auditor the amount which in the judgment
of the State Auditor is necessary for the
purpose of making such audit."
This rider is a valid authorization in implementation of
the general law and duty of the State Auditor.
-5869-
.
Hon. Robert S. Calvert, page 19 (M-1199)
41. Page V-47, Section 38, O.ther Provisions,
which reads, "TYPEWRITER, ADDING MACHINE
AND CALCULATOR REPAIRS. Except for the
State Highway Department and State Health
Department which maintain their own type-
writer repair service, all other agencies of
the State with appropriations made in Ar-
ticle I, Article III, and the Coordinating
Board, Texas College and University System,
and the Central Offices of the Board of
Regents, State Senior Colleges in Article
IV of this Act and having either electric
or manual typewriters located in Austin,
shall have them repaired and maintained
by the Board of Control. The Board of
Control shall purchase all necessary re-
pair parts and be reimbursed by the agencies
for only the repair parts used. None of :
the funds appropriated in Articles I and
III of this Act shall be expended for re-
pair or maintenance service on typewriters
located in Austin without the prior auth-
orization of the Board of Control. The
Board of Control shall establish such rules
of procedure as will effect an orderly and
efficient program for repair and maintenance
of State-owned typewriters in Austin under
the control of agencies in Articles I and
III of this Act.
"All agencies of the State located within
the Capitol Complex Area shall have all state-
owned adding machines and calculators repaired
and maintained by the Board of Control. The
Board of Control shall purchase all necessary
parts and be reimbursed by the agencies for
only the repair parts used. None of the funds
appropriated for this purpose to State agencies
located within the Capitol Complex Area shall
be expended for repair and maintenance of
State-owned adding machines and calculators
without the prior authorization of the Board
of Control. The State Board of Control shall
establish such rules of procedures as will
effect an orderly and efficient program for
.-5870-
Hon. Robert S. Calvert, page 20 (M-1199)
repair and maintenance of State-owned adding
machines and calculators in Austin under
control of agencies located within the Capitol
Complex Area. State agencies located outside
the Capitol Complex Area in Austin may utilize
this adding machine and calculator repair
service through interagency contract with the
Board of Control."
This rider is invalid because it constitutes general legis-
lation. Article 664-3, Vernon's Civil Statutes contains the
general law.
42. Page V-48, Section 40, Other Provisions, which
reads, "RENTED MACHINES AND EQUIPMENT. None
of the moneys appropriated in this Act shall
be used for the rental of any equipment which
exceeds a rental cost of $1,000 per year
(except for data processing equipment) with-
out having the prior written approval of the
Governor. Such approval shall be required
before the request is processed by the Board
of Control, and the State Comptroller or any
localdisbursingofficer shall not issue
warrants or checks in payment of equipment
rentals without such prior approval. None
of the moneys appropriated by this Act shall
be paid to any seller who delivers any used
or rented equipment in fulfillment of an
order for new equipment, even though said
equipment has been used by the agency
placing the order.
"It is further provided that none of the
moneys appropriated by this Act may be ex-
pended for the purchase or rental of electron-
ic tabulating or data processing equipment
without the advance written approval of the
Governor therefor. It is the expressed in-
tent of the Legislature that existing tabu-
lating and data processing installations of
the State Government shall be efficiently
utilized through interagency agreements with
State departments and agencies needing such
services, prior to the expenditure of public
..5871-
’ .
Hon. Robert S. Calvert, page 21 (M-1199)
funds for separate and additional instal-
lations of such equipment. Agencies re-
questing approval of the Governor for
purchase or rental of this type of equip-
ment shall file a detailed report outlining
steps taken to utilize existing equipment
and reasons why such utiliiation is not
feasible."
This rider is invalid because it constitutes general legis-
lation and also invalidly delegates to the Governor legislative
duties and authority.
43. Pages V-51 and 52, Section 47, Other Provi-
sions, which reads, "ATTORNEYS. From and
after September 1, 1971, should a vacancy
occur in any department or institution of
higher learning, not otherwise exempted, in
Articles III or IV of this Act in a position
which has as its primary function the prac-
tice of law and rendering of legal services
and counsel, said position shall be filled
only after having received the written ap-
proval of the Attorney General.
"None of the funds herein appropriated may
be expended for legal services until the
Attorney General has given prior written ap-
proval for the employment of such personnel
and the compensation to be paid. This pro-
vision shall apply to all legal services ex-
cept those rendered by personnel who are
classified in the Position Classification
Plan.
"None of the funds appropriated in this Act
may be expended for classified positions
which function as hearings examiners unless
the person filling such position has been
licensed to practice law in the State of
Texas. The Attorney General and State
Classification Officer shall cooperate in
carrying out the intent of this provision
and shall report any violation to the Comp-
troller of Public Accounts who shall with-
hold any payments for the position in ques-
tion until such violation has been corrected.
Hon. Robert S. Calvert, page 22 (M-1199)
Provided, however, that this provision shall
not apply to such classified positions filled
before the effective date of this Act.
"None of the funds appropriated in Articles
II, III and IV of this Act, with the excep-
tion of funds appropriated to the Secretary
of State, may be used for the delivery of a
written legal opinion unless a copy of such
opinion is furnished the Attorney General.
"None of the funds appropriated in Articles
II, III and IV of this Act, with the excep-
tion of funds appropriated to the State
Library and for State-supported law schools,
may be expended for purchase of law books
without the approval of the Attorney General."
This rider is invalid because the subject matter involved
constitutes general legislation. To the extent that this hold-
ing conflicts with prior opinions, the same are hereby over-
ruled to the extent of conflict. Those include C-449 (1965);
C-485 (1965); C-782 (1966); M-249 (1968).
44. Page V-55, Section 59, Other Provisions,
which reads, "It is also provided that, in
the event of expansions of Federal programs,
additional Federal funds becoming available
may be used to carry out the expanded prog-
rams, but only with the advance approval of
the Gove,rnor; provided, however, that copies
of such requests for the Governor's approval,
and notice of the Governor's action on such
requests, shall be filed with the Legislative
Budget Board."
This rider is invalid to the extent that it requires the
approval of the Governor.
45. Page V-51, Section 45, Other Provision,s,
which reads, "BUILDING ALTERATIONS PROHIBITED.
None of the funds appropriated in this Act
may be expended for removing walls, partitions
or any other permanent parts of the first and
-5873-
Hon. Robert S. Calvert, page 23 (M-1199)
second State Office buildings, the Supreme
Court building, the Archives and Inusrance
buildings, and the Finance building, ex-
cept for such renovations that may be neces-
sary for new offices or departments moving
into such buildngs, unless otherwise auth-
orized and provided for elsewhere in this
Act, or upon the approval of the State
Board of Control."
This rider is invalid and constitutes general legislation.
Article 665, Vernon's Civil Statutes, is the general law on
this subject and provides authority for the Board of Control
to repair buildings.
The above opinion concerning the various rider provi-
sions of the appropriation bill about which our advice was
requested intentionally expresses no view on whether the sub-
ject matter of the various riders might be validly enacted by
some form of general legislation.
It is our opinion that those riders discussed above which
attempt to provide for an approval and an informational filing
with the Budget Board express two distinct legislative intents,
and that the second intent is severable from the first: how-
ever, except where the item of appropriation is contingent
upon the filing being made [for example, item 8 above, page
61 the language requiring the filing appears to us to be di-
rectory and not mandatory.
SUMMARY
-------
Forty-'five riders contained in the 1971
General Appropriation Act are considered
and passed upon as to validity. See
this Opinion for specific riders.
Prepared by Roger Tyler
and John Reeves I
Assistant Attorneys General
-5874-
Hon. Robert S. Calvert, page 24 (M-,1199)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
J. C. Davis
Harriet Burke
Jack Sparks
Roland Allen
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
I
-5875-