Untitled Texas Attorney General Opinion ( 1974 )

June 5, 1974
The Honorable Raymond W. Vowel1 Opinion No. H- 321
Commissioner.
State Department of Public Welfare Re: Validity of rider to
John H. Reagan Building Department of Public
Austin, Texas 78701 Welfare’s appropriations
requiring dentures for
Public Welfare recipients
to be made in the labora-
tory of the Department of
Dear Commissioner Vowell: Corrections.
The current Appropriations Act for fiscal 1974 and 1975 sets aside
~a sum of money from the Medical Assistance F’und to be used by the
Department of Public Welfare for “Eye Glasses, Dentures and Hearing
Aids. ” Acts 1973, 63rd Leg., ch. 659, p. 1858, Item 50A(b). You are
concerned with a provision apparently intended as a rider to this
appropriation which states:
“(8) In all instances in which the Department provides,
out of funds appropriated under Item 52A [sic., ,obviously
intended ,to refer to Item 50A], dentures for recipients of
Public Assistance, it is the intent of the Legislature that
the recipient shall have the choice of dentists, but the
plates must be made in the laboratory of the Department
of Corrections from impressions furnished by the dentist. ”
Acts 1973, 63rd Leg . , ch. 659, p. 1860. (Emphasis added)
.Section 35 of Article 3 of the Texas Constitution provides in part:
“No bill, (except general appropriation bills, which
may embrace the various subjects and accounts, for
and on account of which moneys are appropriated) shall
contain more than one subject, whtch shall be expressed
in its title, ”
p. 1484
The Honorable Raymond W. Vowell, page 2 (H-321)
The nature of appropriations bills necessitated a special exception to the
traditional one subject requirement to allow inclusion of appropriations
of funds for two or more departments, subjects, accounts or purposes
with the one general purpose of appropriating money and limiting its use.
Attorney General Opinion V-1254 (1951).
A general appropriations bill is nonetheless subject to the consti-
tutional prohibition against including more than one subject in a bill.
The appropriation of funds is the allowed one subject of the bill and
consequently, a general appropriations bill cannot contain another
different subject, such as general legislation through a rider. An approp-
riation bill or a rider to it may set aside a sum of money for a specific
purpose, provide the means for its distribution, and to whom it shall be
distributed, if the rider is necessarily connected with and incidental to
the appropriation and use of funds.
In our opinion, a rider which is merely declaratory of existing law,
in many instances may properly limit and restrict an appropriation by
words directing that the funds “must” be spent in a particular manner.
However, in this instance the language requiring that denture “plates
must be made in the laboratory of the Department of Corrections” is
a form of general legislation and is prohibited by Art. 3, Sec. 35 from
inclusion in a general appropriations bill.
Item 50A, the “Medical Assistance Fund” of the appropriation to
the Department of Public Welfare, is the repository of all appropriations
pursuant to the ‘Medical Assistance Act of 1967”, Sec. 17, Article 695j-1,
V. T. C. S.
Section 2 of the latter Act explains that its purpose, in part, his “to
enable the state to obtain all benefits provided by the Federal Social
Security Act as it now reads or as it may be amended . . . This Act
shall be liberally construed and applied in’ relation to Federal law and
regulations . . . . I’
Section 5 of the state law tracks a federal requirement by providing
that “No recipient of Medical Assistance shall be denied freedom of
choice in his selection of a provider of Medical Assistance that is
authorized by the State Department of Public Weltire. ‘I
p. 1485
The Honorable Raymond W. Vows& page 3 (H-321)
The provision of the federal Social Security Act which requires
“free choice” as one aspect of a qualifying State plan for medical
assistance is Section 1902(a)(23), codified as 42 U.S. C. A., Sec. 1396(a).
providing:
“A State plan for medical assistance must -
. . D
“(23) provide that any individual eligible for medical
assistance (including drugs) may obtain such
assistance from any institution, agency, com-
munity pharmacy,. or person, qualified to per-
form the service or services required . . . ”
Federal regulations in defining denture service, require not only
that dentures be prescribed by a dentist, but that the dentures be made
by or according to the directions of a dentist. 45 C. F. R., Sec. 249.10 (12)(ii).
In our opinion, the rider is an attempt to amend the general provision in
Article 6953-1, Sec. 5, which confers upon a recipient “freedom of choice in
his selection of a provider of Medical Assistance”, and is to that extent invalid
as general legislation contained in an appropriations bill. ..
The Prison-Made Goods Act of 1963, Article 6203c, Sec. 9, V. T. C.S.
authorizes the Department of Corrections to supply the requirements of the
Department of Public Welfare, if it is able to do so. However, in our
opinion, that Act does not require the Department of Public Welfare to use
the prison facilities to make dentures in every instance, and especially if
doing so would violate any provision of the Texas “Medical Assistance Act
of 1967” or otherwise it could place the state in a position of noncompliance
with Title XIX of the federal Social Security Act, 42 U.S. C. 1396(a), et seq.,
and its applicable federal regulations.
SUMMARY
A rider to the Department of Public Welfare’s
appropriations for 1974 and 1975 requiring dentures for
p. 1486
The Honorable Raymond W. Vowell, page 4 (H-321)
welfare recipients to be made in the laboratory at
the Department of Corrections is invalid as general
legislation contained in a General Appropriations,
Bill in violation of Sec. 35, Article 3.
Very truly yours,
rney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1487