Untitled Texas Attorney General Opinion ( 1951 )

TEEATFORNEY GENEECAL
OF TEXAS
June 28, 1951
Hon. Allan Shivers Opinion No. V-l 196
Governor of Texas
Austin, Texas Re: Authority of the Governor
to veto separate riders in
the general appropriation
bill and related questions
with respect to House Bill
Dear Governor: 426.
Your request for an opinion of this office was receiv-
ed on June 14, 1951, and concerns the riders to House Bill 426,
52nd Legislature. the general appropriation bill. The following
questions are presented.
1. Does the Governor have authority to veto
a rider if it is unconstitutional?
2. Is each rider to House Bill 426 constitu-
tional or authorized by statute?
Further, you request such advice with respect to each rid,er as
this office “feels would be of benefit to the. agency or depart-
ment affected in order that they may be properly guided.”
‘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 inthe
absence of express authorization he may not disapprove of cer-
tain paragraphs or portions of a’bill and approve the remainder.
Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911); Annotation,
35 A.L.R. 600, and cases cited therein.
The authority of the Governor to approve or disap-
prove legislation is contained in Article IV, Sec. 14, of the Con-
stitution of Texas, which is as follows:
“Sec. 14. Every bill which shall have passed
both houses of the Legislature shall be presented to
Hon. Allan Shivers, Page 2. V-l 196
the Governor for his approval. If he approve he
shall sign it; but if he disapprove it, he shall re-
turn it, with his objections. to the House in which
it originated, which House shall enter the objec-
tions at large upon its journal, and proceed to re-
consider it. If after such reconsideration, two-
thirds of the members present agree to pass the
bill, it shall be sent, with the objections, to the
other House, by which likewise it shall be recon-
sidered; and, if approved by two-thirds of the
members of that House, it shall become a law; but
in such cases the votes of both Houses shall be de-
termined by yeas and nays, and the names of the
members voting .for and against the bill shall be
entered on the journal of each House respectively.
If any bill shall not be returned by the Governor
with his objections ,w%thin ten,days (Sundays except-
ed) after it shali have been presented to him, the
same shall be a law, ‘in like manner as if he had
signed it, unless the Legislature,, by-its adjourn-
ment. prevent its return, in which case it shall be
a law, unless he shaEfile.the
_.. s.amei with his ob-
jections, in the office-of the ,Secretary of State and.
give notice thereof by public proclamation within
twenty days after such adj,ournment. If any bill
presented to the Governor Fontains several items
of appropriation he may object to one or more of
such items, and approve the other portion of the
bill. In such case he shall append to the bill, at
the time of signing it, a statement of the items to
which he objects, and no item so objected to shall
take effect. If the Legislature be in session, he
shall transmit to the House in which the bill origi-
nated a copy of such statement and the items obz
jetted to shall be separately considered. If, on
reconsideration, one or more of such items be ap-
proved by two-thirds of the members present of
each House, the same shall be part of the law, not-
withstanding the objections of the Governor. If any
such bill, containing several items of appropriation,
not having been presented to the Governor ten days
(Sundays excepted) prior to adjournment, be in the
hands of the Governor at the time of adjournment,
he shall have twenty days from such adjournment
Hon. Allan Shivers, Page 3. V-1196
within which to file objections to any items there-
of and make proclamation of the same, and such
item or items shall not take effect.” (Emphasis
added throughout.)
Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911).
is the only Texas case on the authority of the Governor to veto
a rider in an appropriation bill; and is recognized as one of the
leading cases on this subject. The following excerpt from the
opinion of Justice Ramsey in that case vividly illustrates the ac-
tion of the Governor in vetoing a part of the appropriation bill
there involved :
U ‘Attorney General’s Department.
For the Years Ending--
August 31,1912 -August 31.1913.
For the eupport and maintenance of the’
Attorney General’s department. in-’
eluding postage, stationery, telegrams,
telephones, furniture, repairs, express,
typewriters and fittings, contingent ex-
penses, costs in civil cases- in which the.
State of Texas or any head of a depart-
ment is a party; for the actual traveling
expenses and hotel bills incurred by the
Attorney General or any of his as&i&ants
or employ& in giving attention to the
business of the state elsewhere than in
the city of Austin; for depositions and
procuring evidence and documents to be
used in civil suits or contemplated suits
wherein the state is a party; for law books
and periodicals; for the payment of any
and all expenses incident to and connected
with the administration of the duties of
the Attorney General’s office; for the en-
forcement of any and all laws, wherein
such duty devolves upon the Attorney
General; for the payment of any and all
expenses in bringing, prosecuting and de-
fending suits; for the payment of the salary
and maximum fees provided by the Con-.
274
Hon. Allan Shivers, Page 4, V-1196
stitution for the Attorney General,
and for the payment of the salaries
and compensation of his assistants
and employ& and other help deem-
ed by the Attorney General to be
necessary to carry on the work of
the Attorney General’s department,
there is hereby appropriated-
to be expended during the two fiscal
years ending August 31st, 1912, and
August 31st, 1913. to be paid by the
Treasurer on warrants drawn by the
Comptroller upon vouchers approved
by the Attorney General ,.......... $41.580.00 -$4&W&W
t of the above it
e purpose of pay-
0.00 per annum
exceed $2.000.00
per annum, and for the pu the salaries of the as-
sistants employed; provide tant shall receive more
salary than $2,500.00 per. the Attorney General shall
have the power and author y such stenographic clerks
as he may deem net the work of the depart-
ment, not to exceed horn shall be chief
clerk and bookkee nd there may be nded out of the
above item of a iation a sum not to
alaries of such stenograp
that no sten hit clerk shall receive more
ere may be employed one porter w
e item of appropriation a salary of
ere may be expended out of the above item
or postage, stationery, telegrams, telepho
repairs, express. typewriters, and fittings and
enses so much thereof as may be necessary, not to ex
275
Hon. Allan Shivers, Page 5, V-11.96
sum of $1.350.09 per annum. The remainder of the
of appropriation, or so much thereof as may be de
ses in which the state of Texas or any
a party; for the actual traveling e
by the Attorney General, or fan
iving attention to the busines
e city of Austin; for de
curing evidence documents to be use
contemplated su erein the state i ; for law books
and periodicals; a any and all laws
of the state of Texas valves upon the At-
any and all expenses
deemed necessary by tb eneral in the prosecution
and defense of all suits, an arly for the enforcement
of the anti-trust and co s and for the employment
of special counsel and o en the same may be deemed
necessary by the A yided that the head of
-‘. said department sh the absences of the var-
ether from sickness,
vacation or 0 ecord of such
absence be i rated in the report
tment; provided, .*a
stated herein, and no more. shall
evenue for the Attorney General’s
e fiscal years beginning September 1st.
t 31st. 1913. and provided further, that n
e created, nor shall any warrants be issued nor
Although the Court upheld the Governor’s veto with re-
spect to the items of’“‘eighty+hree thousand and ‘one hundred and
sixty ($83,160.00) dollars” and ‘$41.580.00,” the Court held that
.t.he Governor had no authority to veto the rider shown above. Each
member of the Court wrote a separate opinion, but all agreed on
the lack of authority in the Governor to veto the rider. In the opin-
ion of Justice Dibrell, the following is said:
“The authority of the Governor to veto the
language of the appropriation bill under the Attorney
General’s department. .which directs tbe’method ofhis
using the appropriation, for that department. is ques-
$376
Hon. Wan Shivers, Page 6, V-1196
,
tioned. and it ~devolves upon the court to deter-
mine that issue. The duty of defining the power
of the executive in relation to the exercise of the
veto privilege is, as suggested by Chief Justice
Woods in the case of State vs. Holder, 76 Miss.
177, 23 So. 643, one of difficulty and delicacy.
The veto power of the executive under our system
of government is not inherent in such officer as
a legislativ function, but is a power confided in
him by the ii- preme authority of the state; and in
exercising this function, while he is not confined
to rules of strict construction +e nevertheless
must look to the Constitution for the authority to
exercise such power. The principle here enunciat-
ed has been aptly put by the Supreme Court of IJ.li-
nois. in the case of Field v. People, 3 Ill. 79, in
discussing the question of the Governor’s veto
power: ‘In deciding this question, recurrence must
be had to the Constitution. That furnishes the only
true rule by which the court can be governed. That
is the character of the Governor’s authority. All
the powers delegated to him’by or in accordance
with that instrument he is entitled to’@ercise. and
no others. The Constitution is a limitation upon
the powers of the legislative department of the
government. but it is to be regarded as a grant of
powers to the other departments. Neither the exe-
cutive nor the judiciary, therefore, can exercise any
authority or power. except such as clearly granted
by the Constitution. Upon the principle of our govern-
ment that the’sovereign power of the state resides
in the people, and that only such powers as they have
delegated to their functionaries can be exercised,
where a claim of power is advanced by the executive,
r the question is not whether the power in question has
been granted to the people, but whether it has been
granted to the executive; and, if the grant cannot be
shown, he has no title to the exercise of the power.’
The Governor of Arieona. under act of Congress pass-
ed July !9. 1876 (19 Stat. 91, C. 212). was authorized
to exercise the veto power to the extent that, if he does
not approve a bill, he shall return it. together with his
objections, to t&e house in which it originated. No
authority was given the Governor by that act to disap-
277
Hon. Allan Shivers, Page 7, V-1196
prove a bill in part. Exercising /the power dele-
gated to him as above stated, the Governor of Ari-
xona returned an appropriation bill to the house in
which it originated with his signature, and added
after his signature that he had approved the bill
except as to subdivision 17 of section]l. His veto
thus expressed was by the Legislature sustained;
but the Supreme Court of Arizona held that the bill
as a whole became a law. as the Governor had no
authority to veto a single item of an appropriation
bill. Porter v. Hughes, 4 Ark. 1. 32 P. 165.
“The executive. while in the exercise of the
veto power. is exercising a legislative function, yet
the authorities are uniform in holding that he has no
power to construct legislation. His authority is pure-
ly negative. This principle was clearly laid down by
Chief Justice Stayton in Pickle v. McCall, 86 Tax.
223. 24 SW. 268. in the following paragraph: ‘The
Legislature has the affirmative power to enact laws.
while the executive has only a negative power, by the
constitutional exercise of which he may defeat the
will of the majority of both houses of the Legislature;
but this power has no effect when, upon his veto, two-
thirds of the members present in each house declare
that a bill shall become a law.’
“Applying the rules above-laid down, we find
the Governor has power to disapprove any bill pass-
ed by both houses-of the Legislature, and that, when
he disapproves any bill, the same shall not become
a law, unless reconsidered and approved by two-thirds
of the members of both houses. Ifthe Legislature has
adjourned at the time the Governor disapproves any
bill. the same fails to become a law. If a bill passed
by the Legislature contains several items of appropria-
tion, the Governor is authorized to object to one or
more of such items, and such item or items so object-
ed to shall not become, a part of the law, unless the
Legislature be in session and such item or items ob-
jected to be reconsidered and approved by Iwo-thirds
of the members of both houses. The executive veto
power is to be found alone in section 14.‘art. 4. of &
Constitution of this state. Bv that sects * -
i’
278
Hon. Allan Shivers, Page 8, V-1196
thorized to disapprove any bill in whole, or, if a
bill contains several items of appropriation, he
is authorized to object to one or more of such
items. Nowhere in the Constitution is the authority
given the Governor to approve in part and disapprove
in part a bill. The only additional authority to disap-
I a bill in whole is that ~giveu to object to an
item or items, where a bill contains several items
of aourouriation. It follows conclusivelv that where
the veto power is attempted to be exercised to ob-
ject to a paragraph or portion of a bill other than
au item or items, or to language qualifying an aR-
propriation or directing the method of its uses, he
exceeds the constitutional authority vested in him.
and his objection to such paragraph, or portion of
a bill, or language qualifying an appropriation, or
directing the method of its use, becomes noneffective.
So that we’are constrained to hold that that portion
of the veto. message- contained in subdivision 3
of the statement of objections appended to the ap-
propriation bill and filed in the office of the Secre-
tary of State /dealing with the rider/ was unauthoriz-
ed, and therefore noneffective, and the paragraph so
attempted to be stricken out will remain as a part
of the appropriation bill. While the paragraph may
not harmonize with the appropriation for the Attor-
ney General’s department as modified by the veto
message of the Governor, yet the language of this
clause must in its application adjust itself to the
changed condition of the appropriation to which it
refers.” (140 S.W. at 411-41L)
Concerning the authority of the Governor to veto the
rider, Justice Ramsey said:
Hon. Allan Shivers, Page 9, V-l 196
was vetoed, suffer destruction at the Governor’s
hands. In other words, that that was legislation,
and, if it should be held that his veto was effective
to strike down any one of the amounts of $41,580,.
that it must be limited to that single item, and
could have none other or different effect.” (140
S.W. at 422-423.)
Another leading case on the authority of the Gover-
nor to veto parts of an appropriation bill is Commonwealth v.
Dodson, 176 Va. 281, 11 S.E.2d 120 (1940). Citing Fulmore v.
Lane, supra, with approval, the Court reviewed some of the
other cases on this question as follows:
“First we are to determine the power given
to the Governor by this excerpt from our Consti-
tution, said section 76, which declares that ‘the
governor shall have the power to veto any particu-
lar item or items of an appropriation bill, but the
veto shall not affect the item or items to which he
does not object.’
“We are dealing with an appropriation bill.
The Governor is given power to veto any item or
items thereof, subject to this limitation noted:
‘* * * but the veto shall not affect the item or items
to which he does not object.’
I‘. . . .
“If the Commonwealth were to determine
to erect a library building and were to set apart
a certain sum for structural steel, another for a
heating plant, etc., and were finally to provide for
a supervising architect at a stated salary, plainly
the Governor could not by veto, dispense with the
services of an architect, although the sum to be
paid for his services might, in a limited sense,
be regarded as an item. That term, as used in the
Constitution, refers to something which may be tak-
en out of a bill without affecting its other purposes
or provisions. It is something which can be lifted
bodily from it rather than cut out. No damage can
280
Hon. Allan Shivers, Page 10, V-1196
be done to the surrounding legislative tissue, nor
should any scar tissue result therefrom.
“What does ‘item’ mean? It has been defined
in Juan Bengson v. Secretary of Justice & Insular
Auditor, 299 U.S. 410, 57 S. Ct. 252, 253, 81 L. Ed.
312, 313.
“The Philippine Retirement Gratuity Law
provided for the payment of a retirement gratuity
to certain officers of the insular government, in-
cluding justices of the peace, among whom was the
petitioner. This was to be paid out of any fund in
the insular treasury not otherwise appropriated.
That act was approved by the Governor-General,
who, however, vetoed this provision:
” ‘The Justices of the Peace who must re-
linquish office during the year nineteen hundred and
thirty-three in accordance with the provisions of
Act numbered Thirty-eight hundred and ninety-nine,
shall also be entitled to the gratuities provided for
in this Act.’
“The Organic Act conferred upon the Governor-
General ordinary veto powers, but in it was this pro-
vision:
* ‘The Governor General shall have the power
to veto any particular item or items of an appropria-
tion bill, but the veto shall not affect the item or items
to which he does not object.’ 48 U.S.C.A. fi 1052.
“The language of our Constitution, as we have
‘seen, is that the ‘veto shall not affect the item or items
to which he does not object.’ Indeed, one provision
seems to have been copied from the other.
‘!The court itself tells us what it had,to decide:
‘Did the bill which became Act 4051 constitute an ap-
propriation bill; and, if so, was section 7 De section
vetoe$, within the meaning of the foregoing provision
of the Organic Act, an item of such bill? ’
Hon. Allan Shivers, Page 11, V-1196
“The court said that it was not an appropriation
bill. It also said:
” ‘It follows conclusively that where the veto
power is attempted to be exercised to object to a
paragraph or portion of a bill other than an item
or items, or to language qualifying an appropriation
or directing the method of its uses, he exceeds the
constitutional authority vested in him, and his ob-
jection to such paragraph, or portion of a bill, or
language qualifying an appropriation, or directing
the method of its use, becomes non-effective.’
Y. . . .
” .
. . . section 7 is not an “item” within the
meaning of section 19 of the Organic Act. An item
of an appropriation bill obviously means an item
which in itself is a specific appropriation Of money,
not some general provision of law which happens to
be nut into an annrooriation bill. Provisions nrant-
ing power to the executive to veto an item or items
of an appropriation bill are to be found, in various
forms of expression, in many of the state constitutions.
Their object is to safeguard the public treasury against
the pernicious effect of what is called ‘log-rolling”--
by which, in order to secure the requisite majority to
carry necessary and proper items of appropriation, un-
necessary or even indefensible items are sometimes
included.’
“In support of its conclusions it cites with ap-
proval State v. Holder, 76 Miss. 158, 180, 181, 23 SO.
643, 644, and calls attention to the fact that the Con-
stitution of Mississippi gave to the Governor power
to veto parts of any appropriation bill. ‘Parts’ is a
word capable of wider application than ‘item’ or
‘items,’ yet it did not give to the Governor power to
veto an objectionable provision. In that case, the
Mississippi Legislature made an appropriation for
the Industrial Institute & College, setting apart cer-
tain sums for certain appropriate purpos,es but de-
clared that payments to officers and employees should
not be available unless the power of approval should be
,
282
Hon. Allan Shivers, Page 12, V-1196
conferred uponthe:president by the board of trustees.
This provision, as to the president, the Governor
vetoed. The court said that he had no Dower to trans-
form a contingent or conditional appropriation into
an absolute one and that the power given ‘was not de-
signed to enable the governor to veto objectional leg-
islation in appropriation bills,’ and that this power ap-
plied to parts so separable and complete within them-
selves that they may be ‘taken from the bill without af-
fecting others.
“The Bengzon case, though late (decided January
4, 1937), is now leading. It is a decision of all the
justices who sat. Mr. Justice Stone did not participate.
As reported in 81 Law Edition, there was called to its
attention many or most of the cases which had consider-
ed the issues then presented.
“It is contended that much that was said in the
Bengzon case was but dicta, since the bill itself was
not an appropriation bill; and the same criticism is
directed to State v. Holder, supra. It may readily be
conceded that the bill presented to the Governor- p
General was not an appropriation bill and that the court
with propriety might have stopped when that was as-
certained, but it did not, and it tells us in terms what
was before it. Of this, it was the best judge.
”
. . . .
“Even if it be dicta, Mr. Justice Sutherland has
told us what the Supreme Court thought, and that was
that the veto was unauthorized because the bill was
not an appropriation bill and because that stricken out
was not an item. I
“In re Opinion of the Justices, 294 Mass. 616,
2 N.E.2d 789. 790, Courts 208. States 131, Statutes 33,
the court was asked to construe this constitutional
provision, Const. amend. art. 63, 8 5: ‘The governor
may disapprove or reduce items or parts of items
in any bill appropriating money.’ It said that ‘items’
or ‘parts of items’ referred to separate fiscal units
and that no power was given to change the terms of
Hon. Allan Shivers, Page 13, V-l 196
an appropriation except by reducing the amount
thereof; that a condition attached to an appropria-
tion was not an item and that ‘words or phrases are
not “items or parts of items.““‘“(ll S.E.2d at 124-
126:)
The Court then said:
“We think it is plain that the veto power does
not carry with it power to strike out conditions or
restrictions. That would be legislation. Plainly,
money devoted to one purpose can not be used for
another, and it is equally plain that power to impose
conditions before it can become available is legislation.
“An item in an appropriation bill is an indivisi-
ble sum of money dedicated to a stated purpose. It
is something different from a provision or condition,
and where conditions are attached. they must be ob-
served; where none araattached, none may be added.”
(11 S,E.2d at 127.)
In Fairfield v. Foster, 25 Aria. 146, 214 P. 319, 322
(1923). the Court approved the holding in Fulmore v. Lane, supra,
and in regard to the question here presented said:
“Now it is very true, as stated in State v.
Holder, 76 Miss. 158, 23 So. 643, that the exe-
cutive cannot veto a condition or proviso of an ap-
propriation, while allowing the appropriation itself
to stand. That would be affirmative legislation
without even the concurrence of the Legislature.
”
. . .
In Bengzon v. Secretary of Justice, 299 U.S. 410 (1937),
discussed in Commonwealth v. Dodson, supra, Fulmore v. Lane,
supra, is cited and quoted with approval.
In 59 C.J. 583, Statutes, Sec. 114, the following is
said:
u
. . . The disapproval of matter which is inci-
dental to the appropriation and an inseparable part of
284
Hon. Allan Shivers, Page 14, V-l 196
an item is without effect, as where an attempt
is made to veto a condition of an appropriation
and approve the appropriation without the con-
dition imposed.”
See also, Annotation, 35 A.L.R. 600; Annotation, 99
A.L.R. 1277; 42 Am. Jur. 753-754, Public Funds, Sec. 51; Att’y
Gen. Op. O-3685 (1941).
For an interesting discussion of the history of the
veto power and of the cases dealing with the power of the exe-
cutive to split an item of an appropriation bill, see 4 Tex. Law
Rev. 182 (1926).
From the above cases and authorities, the following
conclusions may be drawn with respect to the authority of the
Governor to veto a rider in an appropriation bill:
a. The Governor has the power to veto only
“items” of an appropriation bill.
b. An “item” is a specific appropriation of
money and does not include general provisions,
conditions, limitations, and restrictions put into an
appropriation bill in the form of riders.
c.The Governor has no authority to veto
a rider in an appropriation bill unless it is in it-
self an “item,” that is, a provision containing a
specific appropriation of money.
d. A veto by the Governor of any provipions
of an appropriation bill which are incidental to the
appropriation and an inseparable part of an item is
beyond the constitutional authority delegated to him
in Article IV, Sec. 14, Constitution of Texas, and is
therefore ineffectual.
By your second question you ask if each of the riders
contained in House Bill 426 is constitutional or authorized by
statute. you then ask as to each rider our advice for the guid-
ance of the departments and agencies concerned. Due to the
limited time we have had in which to study the questions present-
ed by you, and due to the fact that you must act on House Bill 426
285
Hon. Allan Shivers, Page 15, V-1196
on or before June 28, 1951, it is impossible to pass upon the con-
stitutionality of the 235 riders contained in the bill or give our in-
terpretation of the same. Since, in answer to your first question,
we have concluded that the Governor has no authority to veto non-
appropriating riders in the general appropriation bill, it would ap-
pear that answers to your second and third questions are not neces-
sary at of this time -- that is, within the time in which you must
act on House Bill 426.
We trust that you will understand and appreciate the
position in which we find ourselves with respect to your se’cond
and third questions. They actually constitute 470 separate ques-
tions, each of which will require study and conclusions which
could not possibly be completed within the time allowed.
SUMMARY
,’ ‘~- The Governor has the power to veto only “items”
of an appropriation bill. An “item” is a specific appro-
priation of money and does not include general provis-
ions, conditions, limitations, and restrictions put into
an appropriation bill in the form of riders. The Gover-
nor has no authority to veto a rider in an appropriation
bill unless it is in itself an -item,” that is, a provision
containing a specific appropriation of money. A veto by
the Governor of any provisions of an appropriation bill
which are incidental to the appropriation and an insepa-
rable part of an “item” is beyond the constitutional au-
thority delegated to him in Article IV, Sec. 14, Consti-
tution of Texas.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
d-$L,:&&J
Everett Hutchinson E. Jacobson
Executive Assistant
Charles D. Mathews
First Assistant
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