Untitled Texas Attorney General Opinion ( 1965 )

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Honorable Preston Smith Opinion No. C-443
Lieutenant Governor
Capitol Station Re: Validity of a "rider" ap-
Austin, Texas pearing in the General
Appropriation Bill, House
Bill 12, at Section 4,
page V-33, and purport-
ing to provide for manda-
tory retirement at the age
of seventy (70) of statu-
tory officers and employees
Dear Governor Smith: of the State:
You have requested an opinion from this office concerning
the:
11
. . . validity of a 'rider' appearing in
the General Appropriat,ionBill (H.B. 12) at Sec-
tion 4, Page V-33, purporting to provide for
mandatory retirement at age 70 of statutory of-
ficers and employees of the State. Constitutlon-
al officers, as you will note, are excepted from
its provisions."
Section 4 of Article V of House Bill 12 of the 59th Legis-
lature, the General'Appropriation Bill, provides that:
"Sec. 4. LIMITATION OF EMPLOYMENT BEYOND AGE 70.
None of the moneys appropriated in Articles I, II
and III of this Act shall, after September 30, 1965,
be paid as compensation for personal services to any
person over age 70 who holds an appointive public
office or position of public employment, created or
authorized by statutory enactment, and who is eligi-
ble forkretirement benefits under any retirement sys-
tem provided by the State of Texas or to which it
contributes. Incumbents of offices or positions cre-
ated by the Constitution of this State are specific-
ally excepted from the provisions of this section.
Moreover, this section shall not prohibit the payment
of compensation, otherwise due, for the month in which
a person becomes 70 years of age. For the purpose of
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Honorable Preston Smith, page 2 (C-443)
making the prohibition in this section effective,
every person who holds an appointive public office
or position of public employment for which an ap-
propriation is made in Articles I, II and III here-
of, and to which office or position this section
does apply, and who is or will become 70 years of
age or more by September 30, 1965, shall execute in
duplicate, and file as hereinafter provided, a sworn
statement on or before September 30, 1965, on a form
prescribed by the Comptroller of Public Accounts
showing: (1) the month, day and year of his or her
birth; (2) the place of birth; (3) the month, day
and year when such person became, or will become,
70 years of age; (4) whether onthe date shown in
the preceding item such person was, or will be, eli-
gible for retirement benefits under a retirement
system provi.dedby the State of Texas or to which
it contributes; (5) the name or title of the office
or position ,held and of the employing governmental
agency; and (6) such other information as the Comp-
troller may require for the enforcement of this sec-
tion. One copy of the statement shall be filed with
the Comptroller and the other shall be filed with the
administrative head or officer or the court, judicial
unit, hospital or special school, executive, legisla-
tive, administrative, or other governmental depart-
ment or agency responsible for preparing the payroll
on which the name of the affiant appears. Incumbents
of offices or positions to which the prohibition in
this section applies, and who attain the age of 70
between September 30, 1965 and September 1, 1967,
shall execute and file the sworn statement herein-
above described not less than 45 days before the
date on which the affiant attains the age of 70. Any
person who is required to file the foregoing state-
ment and who, without good cause, fails to do so,
shall be conclusively presumed to have neglected the
performance of an assigned duty, and pursuant to Arti-
cle 16, Section 10, of the Constitution of the State
of Texas the Comptroller shall not thereafter pay any
warrant in favor of such person from any funds, of
any character whatsoever, appropriated by this Act.
Every person responsible for making up a payroll for
the month of October, 1965, shall omit therefrom the
names of all persons who were 70 years of age or over
on or before September 30, 1965, and to whom this
section applies. In making up a payroll for succeed-
ing months in the fiscal years of 1966 and 1967, the
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Honorable Preston Smith, page 3 (c-443)
names of all such persons and of those persons
who became 70 years of age during the preceding
month shall be omitted therefrom."
It is well established that general legislation cannot be
included within a general appropriation bill. Moore v. Sheppard,
144 Tex. 537 192 S.W.2d 599 (1946); Attorney ‘General'sOpinions
````~:,S~lIh``“,“rr-96 (1957) - In addition, it is also well
rider" in a general appropriation bill cannot
repeal, modify or amend an existing general law. Conley v. Daugh-
ters of the Republic, 106 Tex. 80, 156 S.W. 197 (1 inden v.
49 S.W. 578 (1899); State v. ?',%et 57 Tex
General’s Opinions No. V-1254 (1951) and
Article 6252-14, Vernon's Civil Statutes, enacted by the
58th Legislature in 1963, provides that:
"Section 1. It is hereby declared to be the
policy of the State of Texas that no person shall
be denied the right to work, to earn a living, and
to support himself and his family solely because of
age.
“Set tion 2. No agency, board, commission, de-
partment, or institution of the government of the
State of Texas, shall establish a maximum age under
sixty-five (651 yesrs nor a minimum age over twenty-
one (21) years'fbr employment, nor shall any person
who is a citizen of this State be denied employment
by any such agency; beard, ccmmission, department or
institution or any political subdivision of the State
of T exas sole? becauselof age; provided, however,
nothing in th s Act sha 1 be construed to prevent the
imposigion of,minimum and maximum age restrictions
for law enforcement peace ,officers or for fire-
fighters; provided, further, that the provisions of
this Act shall not apply to institutions of higher
education with established retirement programs.
"Section 4. The fact that older persons often
meet with resistance to employment solely because of
their age and the further fact that citizens of this
State should be allowed to earn a livinn, to work,
and to support themselves and their famziies, and-be-
cause such persons should not be denied the opportun-
ity of employment by any agency, board; commission,
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Honorable Preston Smith, page 4 (C-443)
department, or institution of the government of the
State of Texas, creates an emergency . . .I'(Em-
phasis added).
The foregoing general legislation prohibits,the various
agencies, boards, commissions, departments and institutions of
the State of Texas from refusing employment to any person who is
a citizen of the State solely because of age. Therefore, the pro-
visions of Section 4 of Article V of House Bill 12 of the 59th
Legislature modifies or amends the existing general law set out
in the provisions of Article 6252-14, Vernon's Civil Statutes.
In the case of Caldwell v. Board of Regents of the Univer-
sity of Arizona, 54 Ariz. 404, 96 P.2d 401 (1939) the Supremr
Court of Arizona had before it the question of thi validity of a
"rider" in the general appropriation bill enacted by the Lkgisla-
ture of the State of Arizona, which would prohibit a husband and
wife being included at the same time on the payrolls mentioned in
the general appropriation bill. The court in its opinion, which
held such rider was void, stated that:
"In the case of State v. Angle, Ariz., 91 P.
2d 705, 708, the question again arose as to how
far the biennial appropriation bill could contain
in its appropriation legislation other than the
mere appropriation of money for the purposes set
forth thereunder, and we said" l* + * After a care-
ful review of the cases. we think the rule laid
down thereby may be stated as follows.
appropriation bill can contain nothing bue the a -
propriation of money for specific purposes, and
such other matters as are merely incidental and
necessary to seeing that ,themoney is properly ex-
pended for that purpose only. Any attempt at any
other legislation in the bl-11is void. * * *I
1,
. . .
"We think there can be no question that, as
was said in'the Gros.ieancase. sunra. *in the light
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Honorable Preston Smith, page 5 (C-443)
'In the absence of constitutional or statutory,
disqualification all persons are eligible to public
employment whom the appointing officers select, re-
gardless of age, sex, status orother qualifications.
People ex rel. v. McCormick, 261 Ill. 413, 103 N.E.
1053, Ann.Cas.l915A, 338. It is a well knownfact
that for many years a number of employees of then
state, in its various activities, have been husband
and wife. In the absence of the proviso under con-
sideration there is no doubt that marital status is
not the slightest legal impediment to the employment
of any person by the state. If the proviso is valid
it automatically disqualifies one half of our married
citizens from such employment. The question of whether
legislation having this purpose and effect is morally
just, economically sound, or politically expedients,
is not one for the courts to consider. Whether the
legislature may constitutionally enact ~suchlegisla-
tion in any manner is not necessary for us to deter-
mine in the present case,. But to hold that legisla-
tion having this purpose and far .reachingeffect is
'merely incidental and necessary to seeing that the
money is properly expended for that purpose only' is
to substitute the shadow for the substance, and to
disregard the purpose and effect of the proviso en-
tirely.
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. . .
"In the later case of State ex rel. Whittier v.
Safford; 28 N.M. 531, 214 P.759, 760, considering the
same subject, the court said: '* * * The details of
expending the money so appropriated, which are neces-
sarily connected with and related to the matter of
providing the expenses of the government, are so re-
lated, connected with, and incidental to the subject
of appropriations that they do not violate the Consti-
tution if incornorated in such general appropriation
bill. It is only such matters as are foreign, not re-
lated to, nor connected with such subject, that are
forbidden. Matters which are germane to and natural-
ly and logically connected with the expenditure of the
moneys provided-in the bill, being in the nature of
detail, may be incorporated therein. * * *I" (Em-
phasis added).
In view of the foregoing authorities, we are of the opinion
that the "rider" appearing in the General Appropriation Bill,
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Honorable Preston Smith, page 6 (C-443)
House Bill 12 of the 59th Legislature, at Section 4, page V-33,
which would purport to provide for the mandatory retirement at
age seventy (70) of statutory officers and employees of the State
of Texas is invalid for the reason that such 'rider" would have
the effect of'repealing or modifying the provisions of Article
6252-14. In addition to the foregolng,'we are of the further opin.
ion that the aforesaid "rider" falls wlthin the classification of
being general legislation and is, therefore, not properly included
within a general appropriation bill.
SUMMARY
The "rider" appearing in House Bill 12 of
the 59th Legislature, the General Appropriation
Bill, which purports to provide for mandatory re-
tirement at age seventy (70) of statutory officers
and employees of the State is invalid for the
reason that it modifies or repeals the provisions
contained in Article 6252-14, Vernon's Civil Stat-
utes, and for the further reason that said "rider"
is a subject for general legislation and cannot
properly be included withklna general appropria-
tion bill.
Yours very truly,
WAGGCRRR CARR
Attorney General
PB:JR:ms
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Honorable Preston Smith, page 7 (C-443)
APPROVED:
OPINION COMMITTEE
W. V Geppert, Chairman
J. C. Davis
John Banks
Marietta Payne
W. 0. Shultz
APPROVED FOR THE ATTORNEY,GENERAL
By: Stanton Stone
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