Untitled Texas Attorney General Opinion ( 2000 )

OFFlCE DP THE ATTonNE” GENERAL. STATE OF TEXAS
JOHN CORNYN
February 7,200O
The Honorable Bill Hill Opinion No. JC-0178
Dallas County District Attorney
Civil Section Re: Validity of a rider that allocates monies from the
Administration Building emergency medical services and trauma care system
411 Elm Street fund ofthe Texas Department of Health (RQ-0132.JC)
Dallas. Texas 75202
Dear Mr. Hill:
You have requested our opinion regarding the constitutionality of a rider to the General
Appropriations Act for the 2000-01 biennium. For the reasons discussed below, we conclude that
the rider violates article III, section 35 of the Texas Constitution.
You indicate that, in 1997, the legislature created an emergency medical services and trauma
care system fund as a special account in the state treasury.’ As amended in 1999, section 773.122,
Health and Safety Code, now provides, in relevant part:
(a) The commissioner, with advice and counsel from the
chairpersons of the trauma service area regional advisory councils,
shall use money in the account established under Section 771.072(f)
to fund county and regional emergency medical services and trauma
care systems in accordance with this section.
(b) The commissioner shall maintain a reserve of $250,000 of
money appropriated from the account for extraordinary emergencies.
(c) In any fiscal year the commissioner shall use at least 70
percent ofthe appropriated money remaining in the account, after any
amount necessary to maintain the reserve established by Subsection
(b) is deducted, to fund, in connection with an effort to provide
coordination with the appropriate trauma service area, the cost of
supplies, operational expenses, education and training, equipment,
vehicles, and communications systems for local emergency medical
services. The money shall be distributed on behalf of eligible
‘Act of May 28, 1997,7Sth Leg., R.S., ch. 1157, 1997 Tex. Gen. Laws 4360.
The Honorable Bill Hill - Page 2 (JC-0178)
recipients in each county to the trauma service area regional advisory
council for that county, if the regional advisory council is
incorporated as an entity that is exempt from federal income tax
under Section 501(a), Internal Revenue Code of 1986, and its
subsequent amendments, by being listed as an exempt organization
under Section 501(c)(3) of the code. For a county for which the
regional advisory council is not incorporated as such an entity, the
money shall be distributed to the county on behalf of eligible
recipients. The share ofthe money allocated to the eligible recipients
in a county’s geographic area shall be based on the relative
geographic size and population of the county and on the relative
number of emergency or trauma care runs performed by eligible
recipients in the county. Money that is not disbursed by a regional
advisory council or a county to eligible recipients for approved
functions by the end of the fiscal year in which the funds were
disbursed shall be returned to the account to be used in accordance
with Subsection (t).
TEX. HEALTH & SAFETY CODE ANN. 5 773.122(a)-(c) (V emon Supp. 2000) (emphasis added).
In 1999, there was also enacted a rider to the appropriation for the Department of Health that
bears on the allocation formula. Rider 61 provides:
Trauma Formula Distribution. It is the intent of the Legislature
that the Department of Health allocate at least 40 percent to urban
counties and at least 60 percent of the Emergency Medical Services
allotment to rural and frontier counties.
General Appropriations Act, 76th Leg., R.S., ch. 1589, 1999 Tex. Gen. Laws 5446, 5603. A
proposed rule ofthe Department of Health adopts the 60-rural/40-urban requirement of the rider and
only then applies the statutory formula based on “relative geographic size and population”:
(t) Calculation of county shares
(1) EMS allotment
(A) Counties will be classified as urban or rural based on
the latest official federal census population figures.
(B) The EMS allotment will be divided into a 40%
allocation for urban counties and a 60% allocation for
rural counties.
The Honorable Bill Hill - Page 3 (X-0178)
(C) An individual county’s share of the EMS allotment
shall be based on its relative geographic size and
population as compared to all other counties of its
classification.
24 Tex. Reg. 8088 (1999) (to be codified as an amendment to 25 TEX. ADMIN. CODE
5 157.130(l)(l)(A)-(C)) (proposed Sept. 10, 1999) (Tex. Dep’t of Health) (emphasis added). You
suggest that the modification required by Rider 61 violates article III, section 35 of the Texas
Constitution which provides, in relevant 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.” TEX. CONST. art. III, 5 35(a). The appropriation
of funds from the state treasury is considered a single subject for purposes ofthis provision. Jessen
Assoc., Inc. v. Bullock, 531 S.W.2d 593,600 (Tex. 1975).
The law with regard to riders has long been settled in Texas, as summarized in Attorney
General Opinion JM-115 1:
A valid rider may detail, limit, or restrict the use of
appropriated funds. Attorney General Opinion V-1254 (1951). A
rider that qualifies or directs the use of appropriated funds or that is
merely incidental to an appropriation is valid. Jessen Assoc., Inc.,
supra, at 599. So, too, is a rider that merely implements or is
declarative of existing general law. See Attorney General Opinions
JM-786 (1987); JM-343 (1985).
A rider may not, however, embody matters of general
legislation. Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946); see
also Attomey GeneralOpinionsMW-585 (1982); MW-51(1979). A
rider that attempts to alter existing substantive law is a matter of
general legislation that may not be included in a general
appropriations act. Strakev. Court ofAppeals, 704 S.W.2d 746 (Tex.
1986). Thus, a rider that amends, modifies, repeals, or conflicts with
existing general law or that attempts to nullify a constitutional
provision other than article III, section 35, is invalid. See id.; Linden
v. Finley, 49 S.W. 578 (Tex. 1899); see also Attorney General
Opinions JM-885 (1988); H-1158 (1978); M-1199 (1972); V-1254
(1951).
Tex. Att’y Gen. Op. No. JM-1151 (1990) at 5-6; see also Tex. Att’y Gen. Op. No. DM-93 (1992).
Under these standards, we conclude that Rider 61 is invalid. As we have noted, section
773.122(c) establishes a formula for distribution of emergency medical services/trauma care funds
“based on relative geographic size and population of the county and on the relative number of
The Honorable Bill Hill - Page 4 (Jc-0178)
emergency or trauma care runs performed by eligible recipients in the county.” The rider imposes
an intervening layer on this formula by requiring that the funds first be allocated on a 60-40 rural-
urban basis. As interpreted by the Department of Health, the statutory formula will be imposed only
after this initial allocation. In our opinion, Rider 61 represents an attempt “to alter existing
substantive law,” and, as such, “is a general law which may not be included in an appropriations
act.” See Strake v. Court ofAppeals, 704 S.W.2d 746,748 (Tex. 1986). We conclude therefore that
Rider 61 contravenes article III, section 35 of the Texas Constitution.
SUMMARY
Rider 61 to the appropriation for the Department ofHealth in
the General Appropriations Act for the 2000-O 1 biennium attempts to
amend general law and therefore contravenes article III, section 35
of the Texas Constitution.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee