Untitled Texas Attorney General Opinion ( 1957 )

OFTEXAS
AUSTIN II. TEXAS
W-ILL WILSON
ATTORNEYGENERAL
April 16, 1957
Hon. William S. Fly, Chairman Opinion NO. w-96
Senate Finance Committee
Rl3: Form, arrangement and
Hon. Max C. Smith, Chairman validit of the Legis-
House Appropriations Committee lative 9;udget Board
Draft of General Appro-
55th Legislature priation Bill for the
Austin, Texas State Government for the
fiscal years be Inning
$eptember 1, 19 2 7 end 1958;
Gentlemen:
Request
You have requested our comments on the form, arrangement and
velidity of the gineral appropriation bill before you. You asked for
our particular attention as to the validity cf the caption and the.
valIdItY of the.specIal and general provlsicns ccntained fn the,b.ill.
In conversation, you have explained that a line by line, item by
item examinaticn was rPt expected, but mainly that an examinati-on of
the, caption and the special and general provisions was desired.
Ss are concerned here with what can be included by the Leglsla-
ture In a general appropriaticn bill. Generally, we are not can-
cerned with the power of the Legislature to enact certain provisions
or laws, but simply whether the Legislature csn enact such provisions
or laws within the structure of a general ep;ropriation bill.
Constitutional Provisions
The basic constitutional provisions and rules of law governing
appropriation acts and their contenet are as follows:
Section 35 of Article III of the bonstitution of Texas:
"No bill, (except general appropriation bills, which may
embrace the various subjrote,epd aocounts, for end on account
of which moneys are’ap$ro$rIQted) Jh'all contain more than one
subject, which shall be expressed In Its title. Eut if any
subject shall be embraced in en act, which shall not be ex-
pressed in its title, such act shall be void only a8 to so
much thereof as shall not be so expressed.” 1
- .
Hon. lvilliam S. Fly
Hon. Max C. Smith, paze 2 ( C~UV-96)
Section 1 of Article II of the Texas Constitution:
"The powers of the sovernment of the State of Texas
shall be divided into three distinct departments, each of
which shall be confided to a separate body of magistracy,
to wit: those which are legislative to one; those which
are Executive to another; and those which are Judicial to
another; and no person or collection of persons, being of
one of these departments, shall exercI,se any power prop-
erly attached to either of the others, except In the in-
stances herein expressly permitted."2
Sumnary of 'Lules of Law
From these constitutional provisions the following rules
of law governing a general appropriation bill have been developed
by our courts and by Attorney Generals' opin,ions:
1. The general appropriaticn bill "may embrace the varicus
subjects and accounts, for and on account of which mcneys are
appropriated." Sec. 35 of Art. III of the Constitution cf
Texas; Attorney General's Opinion No, V-1254 (1951) page 6.
It may direct the appropriation of money and may detail, lim-
it or restrict the use cf funds appropriated where such crc-
visicns are necessarily connected with and incidental to the
appropriaticn end use of the funds and if. they dc not ccnflict
with or amount to oeneral lesislation: Conle v. Daughters
of nepubllc, 106 T:xo 80, 156 S.W. 197 (TJi3-?-
.
2. The appropriaticn of funds tobe paid from the State Treas-
ury for the various purposes of zovernment Is the "subject" of
general appropriation bills. Moore, et al. v. Sheppard, 14.4
Tex. 537, 132 S.i. 2d 599 (1946); Attorney General's Opinion
lio. v-1254.
3. Account;ng procedures .in connection with appropriated funds
are permissible as long as they do not confl ct tiith zenera
law. Attorney General's Opinion No. V-1254. J-i
4. General legislation constitutes a separate subjedt and
cannot be Included withina general appropriation bill. Moore
v. Sheppard, supra.
5. A rider attached to a general appropriation bill cannot
repeal, modify, or amend and existing menera law.
Daughters of the tiepublic, (CCA) 151 S:W. 877, 883; %i%?
V. Finley, 92 Tex. 451, 49 S.W. 578 (1899); State v.me,
Hon. dillliam S. Fly
Hon. Max C. Smith, pa::e 3 (~-96)
57 Tex. 203 (1082). e’c;e page 10 of Attorney General’s Opin-
icn No. -1254 for numerous Attorney General’s Opinicns so
holding. !
6. Riders in the genersl a$propriaticn bill seeking to con-
fer upon a jlolnt board composed of members of the Legislature
(Legislative Budget tioard) authority to require further itemi-
zation of appropriated funds or, approval of the expenditure
thereof violate Secticn 1 of Article II of the Constitution
of Texas, whdch prohibits the exercise by the Legislative
branch of powers properly attached to the Executive branch.
Attorney General’s Opinion V-12.54.
Guides to kpplication
In applying these various rules of Law, it helps to keep in
mind the definiticn of a general appropriation bill as distinguis’ned
from general legislation and to keep 1.n mind the reasons zivin; rise
to Section 35 of Article III of cur Constitution, which is the basic
source of all these rules.
A general appropriaticn bill may be. definel as a single bill
which aporopriates funds for tso cr more departments, subjects,
accounts or rurposes. It has the one zenera purpose or subject ma
tar cf appropriating money. Attorney General’s Opinion No. V-12.54. t
General lsgisiation does more than appropriate inoney and limit
.its expenditure. If the bill does more than set aside a sum of
money.and provide the means of its distributicn, then it 1s a ,general
law. Attorney General’s Obfnf&n No. 2965 (1935).7
In distinguishing general appropriation bills from general
legislation bills, it is well to ,bear in mind that _?eneral a>propria-
tion bills are not legislation in the true sense of the :vord.
Appropriation bills are simply the set:.ing apart of public funds.
Under our Ccnbtltution this must be done in the form of a bill.
Section 6 of Article VIII.provides, “MO money shall be drazn from
the Treasury,’ but.in pursuance of specific.appropriation made
by law. . . Section 2 of Article III provides, “Aro low shall be
passed, except by bill. 4 ‘Thus,’ the act of the Legislature in s.et-
ting aside public funds is call d a bill, but it is not legislation
in the usual sense of the word. 8
Scone of axamin8t ion
The examlnati.on of the general appropriation bill submitted
to us was undertaken under the followlnq limitations:
Hon. ``illian 9. Fly
Hon. Max C. Smith, pa :e 4 W-96)
(1) The examination has been limited to the Legislative
3udC;et board draft as it was suomitted tc us with your
letter and as it was originally introduced in eL,ch House.
IYe have not examined the bill as lt came out of committee.
(2) ute have not undertaken to examine each item of appropria-
tion but have devoted our attention to the speclflo matters
directed to ua and called to our attention.
(3) Vie have not examined eaoh item of appropriation to doter-
mine that it hasbeen authoriaed by rxiating general legisla-
tion. This la neoesrary to the vtifdity of any appropriation.
(4) aa have not examined tha oorrrctneaa of Comptroller’s
Account numborr inoluded In the bill.
(5) Some provisions rsam to lraatata axistlnq cfnstltuticnal
provlaions or general law. If thoae*provirfcna or laws are
correctly atatsd in the aprropr~atlona related to them, they
are valid; but they cannot amend, modify, conflict with cr
repeal any such provisicna or lawa;
(6) Becauar of the limita of our examination we express no
opinlon on the corticns of the apcropriation bill net expressly
discussed here.
Form and Arrangement
There are no constitutional or statutory requirements as to
form and arranement of the provisions of a general appropriation
bill. The only applicable rule as to form and ax-angement is the
general one requirin; clearness in the expressicn cf the le$slntive
intent.
CaDClon
The caption aa set out on page I-l la a homplete and adequate
one. It covers and includes all,matters which ca:i be constitutionally
included in such an appropriation bill. There are matter in the
bill not included In the paption, but thsro ahould not be in an’
appropriation bill, ao changing the caption would acccmpllsh nothing.
General and S~eclal Provlrlona
1. On page I-7, Section 6 at Article I of the bill deaLing
with over-obligations by judicial a&enciea is invalid in that It is
in the nature of general legialatlon and not germane to a general
apnropriatlon bll’l. The Section does not borically deal with the
appropriation of money nor the oonditicna or limits of .the appco-
priatian.
Hon. ktiilllam s. E'ly
Hon. Max C. Smith, pa :e 5 (uvif-96)
2. On pa;e 11-21, after providing for the total amount of
appropriations for the Commission on Alcoholism, there is a provision
attempting to authorize the transfer of certain land from the tioard
for Texas State hospitals and "pecial "chools to the Texas Corn-isslcn
on Alcoholism. This provision is invalid as a part of a general
apL,roprlatlon of money or an incidental part of the appropriation
of money.
3. On pu;e 11-32. in the second paro;raph of Subsection d
of Section 2 of Article II of the bill, there is a provision that
certain salary rates must have the written approval of the Governor
"with the advice of the Legislative Budget Board." If construed
as a part of or a ccndltlon of ap:~roval, this wtuld te unconstltu-
tlcnal as it is an attempt to best an executive pow@r in a jolng
committee of the leglslatlve brance in violation of Sectlcn 1 of
Article II of the Texas Constitution. Attorney General's Oplnlcn
v-1254 (1951). TMs statement aprlles to the use of the same
provision or hrase as follows: pa e II-32 in Section 4, Article
II; pa-,e II-3 E , Subsectlcn b of Set &ion 12, Article II; page III-20
at the top cf the pave; pate 111-82 in the last paragraph under
the approprlatlcn provisions for t:-e Texas Prlscn system.
4. On pages II-32 and 33, Sectlcn 7 of Article II of the bill
dealing with admlsslcn and der~crtaticn of non-residents is invalid
as a subject of zenera legislat'cn and not an aoproprlatlcn cf rub-
llc funds nor necessarily ccnnected with nor incidental to such
appropriations. These prcvlsicns in Sectlcn 7 cannot amend, modify
or repeal existing general 1aN dealing with this subject, nor can
it enact general leglslaticn on the subject. See Articles 3194,
3193g, 3194, 3195 and other articles in Title 51, "ernon's Texas
Civil Statutes.
5. On pase II-&, Section 11 of Article II of the bill author-
izing the sale of surplus properties is invalid for the purpose of
grant-ing any authority to the boards to sell any surplus property
or equipment. Such authorization 1s a matter of general legisla-
tion; it is not properly a subject in a general apprcprlat?on bill.
6. On paze III-57 of the bill, after the total figure shown
for the board of Insurance Gommlssioners, there are several paragraphs
dealing with the quallficaticns for certain employees. The first,
second, third, and sixth paragraphs on that page are invalid because
those paragraphs decl with the quallficatlons of employees. This is
a matter for ,Teneral legislation.
Hon. ``llliwm S. Fly
Hon. Max C. Smith, pa:;e
7. On page III-TO, there are appropriations for the Doard
of Naturcpathic Examiners. Your attention is called to the fact
that the IJaturcpsthic Acy, which ,urould 'be the basic law supporting
such appropriations, has been held unconstitutional by the court
of Civil Appeals (Austin) in the case of iJill "ilson, et al, v.
State Yoard of Naeuropathic ExamYne~rs, et al., 296 S ..Y
" IZd 941,
pending en applicat;cn for writ of error), and in Attorney keral's
Opinion s-60. If the Court of ~1~11 Appeals’ judgment is not
reversed, such appropriations would be invalid as not being
authorized by exlstin; constitutional le$slation.
8. On ps,;e III-lll'ln the third paragraph under Section 4 of
Article III of the bill, there is a prcvislon attempting to fix
the price for furnishing photostatic copies for private use by a
department or agency. This provision if invalid as bein= a subject
for general leglslatlcn. The rates charged by the Secretary of State
are fixed by general law. It is possible under exlst!~n= leTlsl:ticn
that the departments cculd fix the costs under their general authority,
but it cannot be done in a general apcrccrlatirn bill.
9. On ps :e IV-l, Section 2 cf Article IV of the bill desling
with the e3l;lblllty of junior colleges fcr &prropr;atirn seems to
be a restatement of Articles 2815j-2, Verncn's Texas Civil stat<]-
tes. To the extent that it restates that law it is a ccnvznient
reference to that l,ar, but it cannot amend, modify cr repeal any
such provis'cns cfthe general law.
10. On pqe v-8, the secon.: pnrqraoh after the aprropraticn
for the administrative and general cffices cf the Texas A;ricuIture
S: Liechanical Cclle;e L'ystem attempting tc aut:?ori-e certain cnvest-
ments of the special mineral fund is invalid as being a subject cf
general legislatlcn and not properly a part of a Ceneral apnrcpria-
tlt,n bill.
11. On page V-20, the last parnjraph cf the scctlcn iealin;:
with Sam Iiouston State Teachers bolle:e purports to authorize
contracting &f.th the Prison bystem for electric power. '&is
provislcn is invalid as not bein: a ;iroper sublect for a ;encral
appropriation bill. It does more than direct the o;:::ro;:riz.tlrn cf
money and limit and control its expenditure. Further, it is our
opinion that is is in ccnflict with Article kl3(32), Verncn's
Texas "1v11 Statutes, 'which Luthorlzes contractin;: .ctween two
such agencies.
. ‘.
Yen. ``illitnn S. Fly
Hon. Max C. Smith, page 7 (``-96)
12. Secticns 30 throqh I+1 of Article VI of the bill
appearing on pages VI-8 through VI-11 deal ,qenerally 'with the
subject of travel expenses of State officials and employees.
These provislcns are valid tc the extent that they are pursuant to
Article 6&3, Vernon's Texas Civil dtetutes, wh!ch provides that
travelin: and other necessary expenses shall be fixed end apsro-
priated by the Legislature in the general apnrourlatlon bills.
nowever, as noted in the authorities cited in this ooinion, these
provisicns cannot enact, amend, modify nor repeal any general
law on this subject cf travel expenses of State officials end
employees.
General Comments
We hope that it is clearly understood that the purpose of a
general appropriation 5111 is to appropriate money from the State
Treasury for authorized State purposes. It is not the purpose of
such a bill to enact zenera legislation and any provisicn or "rider"
other than E mere appropriation must pertain or be related or be
Incidental to the purpose or use of tine funds appropriated.
Even then it is sometimes difficult to dotemine whether a provisicn
or rider is properly related to cr incidental to the use cf the fu;:?s
appropriated.
At several places in the bill the words "assign and transfer"
were used with regard to funds. lrhen these words can be construed
to mean e appropriate" or ear used for,' then such prcvisicns a-e
valid as so ccnstrued. On the ether hand, the transfer and
assignement cf funds are not properly a part of apcropriaticn bills
but ere separate subjects unless they are directly connected with
or incidental tc an appropriation item.
At several places in the bill the expression "hereby authorized"
was used. The granting of authority is generally not a proper
subject for a general sprropriation bill but is a melter frr gene.-al
legislation where the safeguards which go with zenera legislaticn
was available. In some cases it has been possible to construe this
expression in another manner and thus mate it a valid provision.
In other instances the grant of the authority was considered
superflous as being e restatement of existing authority or authority
inherently vested in the aplropriation bill es such a bill cannot
be the source of authority for the use of the appropriation in the
bill.
Hon. ur'illiam S- Fly
Hon. Max C. Smith, page A brw-96)
Very truly yours,
#ILL WILSON
Attorney General of Texas
By Lawrence Jones
Assistant
LJ:lm/PAM
APi'ROVED:
OPINIOX COUk!ITTEE:
H. Grady Chandler,
Chairman
J. C. Davis
S. V. Geppert
C. K Richards
Jo'n Reeves
FOOTNOTES:
1). In construing the general rule and the limited exception con-
tained in Secticn 35 of Article III of our "onstituticn, such
Section should be examined and construed in connectirn ;vith
Section 14 of Article IV of our Constitution. The aprliczble
parts of that Section are as follows:
"Every bill which shall have passed both Houses of
the Legislature shall be presented to the ;cvernor fcr
his approval. If he approves he shall sign it; but if
he disapproves it, he shall return it, with his objec-
tions, to the House in flhlch it originated, which House
shall enter the c,bjecticns at large upon its Jcurnal and
proceed to reconsider it. . .(Provisicns fcr overriding
a veto, failing to return a bill end objection after
adjournment). If any bill presented to the Governor
contains several items of appropriation, he may object to
one or more of such items aiid approve the ether porticns of
bill. In such case, he shall ap:end to the bill at the
time of signing it a statement cf the items tc :r!iich he
objecta, and no item so objected to shall take effect.
If the Legislature be in sesslcn, he shall transmit tc the
House in which the bill originated a copy of such state-
,
Hon.William 3. Fly
Hon. Max C. Smith, raze 9 (WV-96)
ment and the items objected to shall be secarately
considered. . .(Similar provisions for cverriding
a veto nnd objections after adjcurnment).a
It seems evident that it is the ini,entic,n of the bonstituticn
that all bills passed by the Legislature shall be subject
to the examinntion and approval of the "overnor subject tc the
provision for overriding his disapproval. The bonstituticn
established n rule that each bill shall contain one subject.
It makes a limited exception to that rule to make it clear
that an appropriation bill might contain a number cf aprro-
priaticns and accounts. The Constitution then mnde prcvisl.cn
to cover the review of this limited exception by providin;
that the Governor can review the opropriation bills, item 5;
item. These provisicns are related, contained in the same
document, and must be construed toscthcr.
It would follow that such "items" as may be apzroved or dis-
approved by the kvtrnor are such "subjects" as mny be included
in an appropriation bill. It would alsc follow that any matter
which would not be subject to the vetc of the Governor as 6n
"item" in a general aporoprietion bill is such E matter as
is not croperly contained as s "subject" in s l;enerol Spiro-
priation bill as provided fcr in Section 35 of Article III
of our Constitution. Thus the "subjects end accounts" which
may be ac?rroved or disapproved under Secticn 14 of Article
IV of our Lonstituticn.
2).There are other constitutional provisions relating to the
power of the Legislature tc ap:ropriate State money and limita-
tions on those Eowers. 'Yhosc provis'cns are not directly re-
lated to the cuestlcn here as tc what can constituticnnlly
be included in a general np;ropriLtion bill.
Some cf those other ccnstituticns.1 provisic,ns ts tc the basic
:>orwer and its limitntlcns are is fellows:
Section 6 of Article VIII
Section 3 of Article VII
Section 7 of -Article I
Secticn 9a of Article III
Section !A of Article XVI
Sectlcn 39 of Article XVI
Section j'i,of Article XVI, all of the Constitution
of the State of ,i'exas
3).The purpose of the limited exception tc the general
rule of Section 35 of Article III of: cur Constituticn was to
Hon. William 9. Fly
Hon. MELXC. amith, page 10 ``-96)
make certain that anrropriations to more than one department
in the same bill would not be prohibited. In all other respects
general appropriation bills .are subject to the same prohibition
as all other bills against containing more than one subject.
Moore v. sheppard, supra; Attorney General’s Gpinion No. v-1254.
4). Riders providing for accounting procedures in connection
with the funds appropriated, limiting the use of contingent
expense apcropriat icns, setting the rates for travel expense
to be paid from the funds to State employees, specifying the
time of payment of salaries appropriated and prohibiting the
use of appropriated funds for the peyment of salaries to “Any
employee who uses alcoholic activities while on nctive duty”
or who engazes in certain political activities are v&lid in
a general appropriation bill because they merely detail,
limits, or restrict the use of the funds apcropriated or other-
wise insure that the money ~111 be used for the purposes intended.
They do not constitute additional subjects. of general legis-
lation in violation of Section 35 of Article III of the Texas
Constitution. Attorney 5eneral’s Opinion Ro. V-1254, page 10.
5). Section 35 of Article III of our Gonstitution does not give
any authority to pass new laws or repeal old ones through the
medium of a general ap,proprlstion bill. Ccnley v. Daughters
of the Reoublic,,lSl $.W. 877, 863.
6). Attorney General’s Opinion No. 2965 (193.5’) says that we
should be governed by the ordinarily accepted meaning of
“appropriation bill” and quotes as accepted definitions the
following:
“A setting apart from the public revenue of a certain
sum of money for a specific object in such a manner that
the executive cfficers of the government are authorized to
use that money and no more for that object and for no
other. C. J. ~01 4. Page 1460.”
7). General legislation may contain an aprropriation which is
merely incidental to and necessary to carry out the subject
and purpose of the general law. Attorney General’s Opinion
NO. 2965.
Hon. 24 P.2d 66~+~6~e(Ariz.
SUD. 19331.
,.-. The Nevada Suvreme court has saqd:
appropriaticn bills, as inhicated by the titles, are passed
for support of the State government, and are not legislative
acts changing the substantive cr feneral law.. . .I’ State
v. iiipgrs, 136 ~aLC. 100, 101 (Nevi hp. 1913).