OFTEXAS AUSTIN II.TEXAS W-ILL WILSON 

### ATTORNEYGENERAL April 16, 1957

Hon. William S. Fly, Chairman Senate Finance Committee Hon. MaxC. Smith, Chairman House Appropriations Committee 55th Legislature Austin, Texas

Gentlemen: Opinion NO.w-96 Rl3: Form, arrangement and validit of the Legislative 9;

udget Board Draft of General Appropriation Bill for the State Government for the fiscal years be $eptember 1, Inning

19 7 2 end 1958;
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 

### andgeneral provlsicns ccntained fn the,b.ill. In conversation, you have explained that aline by line, item by item examinaticn wasrPt expected, but mainly that anexaminati-on of the, caption andthe special andgeneral provisions was desired. Ss are concerned here with what can be included by the Leglslature In ageneral appropriaticn bill. Generally, weare not cancerned 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 ageneral ep;ropriation bill. Constitutional Provisions Thebasic constitutional provisions andrules of law governing appropriation acts andtheir contenet are as follows: Section 35of Article III of the bonstitution of Texas: "Nobill, (except general appropriation bills, which may embrace the 

### varioussubjrote,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 expressed in its title, such act shall bevoid only a8to so muchthereof as shall not be so expressed.” 1- .

Hon. Hon. lvilliam S. Fly MaxC. Smith, paze 2 (

### C~UV-96)

Section 1of 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 aseparate body of magistracy, to wit: those which are legislative to one; those which are Executive to another; andthose which are Judicial to another; andnoperson or collection of persons, being of one of these departments, shall exercI,se anypower properly attached to either of the others, except In the instances herein expressly permitted."2

Sumnary of 'Lules of Law Fromthese constitutional provisions the following rules of law governing ageneral appropriation bill have been developed by our courts andbyAttorney Generals' opin,ions: 1. Thegeneral appropriaticn bill "may embrace the varicus subjects and accounts, appropriated." for and on account of which mcneys are

Sec. 35of Art. III 

### ofthe Constitution cf Texas; Attorney General's Opinion No, V-1254 (1951) page 6. It maydirect the appropriation of money andmaydetail, limit or restrict the use cf funds appropriated where such crcvisicns are necessarily connected with and incidental to the appropriaticn enduse of the funds andif. they dc not ccnflict with or amount to oeneral lesislation: Conle v. Daughters of nepubllc, 106T:xo 80, 156S.W. 197 (TJi3-?-

. 2. The appropriaticn of funds tobe paid from the State Treasury 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. 

### lio. v-1254. 2d

### 599 (1946); Attorney General's Opinion

3. Account;ng procedures .in connection with appropriated funds are permissible as long as they donot confl ct tiith zenera law. Attorney General's Opinion No. V-1254. J-i 

## 4. General legislation constitutes aseparate subjedt and cannot be Included withina general appropriation bill. Moore v. Sheppard, supra. 5. 

### Arider attached to ageneral appropriation bill cannot repeal, modify, or amendandexisting menera law. Daughters of the tiepublic, 

### (CCA)151 S:W. 877, 883; %i%?

V. Finley, 92Tex. 451, 

### 49 S.W. 578 (1899); State v.me,Hon. dillliam S. Fly

Hon. MaxC. Smith, pa::e 3

### (~-96)

57Tex. 203 (1082). e’c;epage 10 of Attorney General’s Opinicn No. !-1254 for numerous Attorney General’s Opinicns so holding. 

### 6. Riders in the genersl a$propriaticn bill seeking to confer upon ajlolnt board composed of members of the Legislature (Legislative Budget tioard) authority to 

### requirefurther itemization of appropriated funds or,approval of the expenditure thereof violate Secticn 1of 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 ageneral appropriation bill as distinguis’ned from general legislation andto keep 1.nmind the reasons zivin; rise to Section 35 of Article III of cur Constitution, which is the basic source of all these rules.



### Ageneral appropriaticn bill maybe.definel as asingle bill which aporopriates funds for tso cr more departments, subjects, accounts 

### orrurposes. 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 andlimit .its expenditure. If the bill does more than set aside asumof 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>propriation bills are not legislation inthe 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 abill. Section 6of Article VIII.provides, “MOmoney shall be drazn from the Treasury,’ but.in pursuance of specific.appropriation made by law.

. . Section 2 of Article III provides, “Arolow shall be passed, except by bill. 4 ‘Thus,’ the act of the Legislature in s.etting aside public funds is call dabill, but it is not legislation in the usual sense of the word.8 Scone of axamin8tion The examlnati.on of the general appropriation bill submitted to us wasundertaken under the followlnq limitations:Hon. ~~illian 9. Fly

Hon. MaxC. Smith, pa:e 4 W-96)

(1) The examination has been limited to the Legislative 3udC;et board draft as it wassuomitted tc us with your letter and as 

### it was originally introduced in eL,chHouse. IYehave not examined the bill as lt came out of committee. (2) utehave 

### notundertaken to examine 

### each itemof appropriation but have devoted 

### our attention to the speclflo matters directed to ua andcalled to 

### our attention. (3) Viehave 

### not examined eaoh item of appropriation to dotermine that it hasbeen 

### authoriaed by rxiating general legislation. This la neoesrary to the vtifdity of any appropriation. (4) aahave not examined tha 

### oorrrctneaa of Comptroller’s 

### Account numborr inoluded In the bill. (5) Someprovisions 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 

### cannotamend, 

### modify, conflict with cr repeal any such provisicna 

### or lawa; (6) Becauar of the limita of our examination weexpress no opinlon on

### the corticns of 

### the apcropriation bill net expressly discussed here. FormandArrangement There are noconstitutional or statutory requirements as to form and arranement of the provisions of ageneral 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 onpage I-l la ahomplete 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, 

### butthsro 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 6at 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 andnot germane to ageneral apnropriatlon bll’l. The Section 

### does not borically deal with the appropriation of moneynor the oonditicna or limits of .the appcopriatian.Hon. ktiilllam s. E'ly

Hon. MaxC. Smith, pa:e 5 (uvif-96)

2. Onpa;e 11-21, after providing for the total amount of appropriations for the Commission onAlcoholism, there is aprovision attempting to authorize the transfer of certain land from the tioard for Texas State hospitals and "pecial "chools to the Texas Corn-isslcn onAlcoholism. This provision is invalid as apart of ageneral apL,roprlatlon of moneyor anincidental part of the appropriation of money. 3. Onpu;e 11-32. in the second paro;raph of Subsection d of Section 2of Article II of the bill, there is aprovision that certain salary rates must have the written approval of the Governor "with the advice of the Legislative Budget Board." If construed as apart of or accndltlon of ap:~roval, this wtuld te unconstltutlcnal as it is anattempt to best an executive pow@r in ajolng committee of the leglslatlve brance in violation of Sectlcn 1 of Article II of the Texas Constitution. v-1254 (1951). Attorney General's Oplnlcn TMs statement aprlles to the use of the same provision or hrase as follows: pa eII-32 in Section 4, Article II; pa-,e II-3E,Subsectlcn bof 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. Onpages II-32 and33, Sectlcn 7of Article II of the bill dealing with admlsslcn andder~crtaticn of non-residents is invalid as asubject of zenera legislat'cn andnot anaoproprlatlcn cf rubllc funds nor necessarily ccnnected with nor incidental to such appropriations. These prcvlsicns in Sectlcn 7cannot amend, modify or repeal existing general 1aNdealing 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. Onpase II-&, Section 11 of Article II of the bill authorizing 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 amatter of general legislation; it is not properly asubject in ageneral apprcprlat?on bill. 6. Onpaze 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 amatter for ,Teneral legislation.Hon. ~~llliwm S. Fly

Hon. MaxC. Smith, pa:;e

7. Onpage III-TO, there are appropriations for the Doard of Naturcpathic Examiners. Your attention is called to the fact that the IJaturcpsthic Acy, which ,urould'bethe 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 "Zd941,

..Y I 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. Onps,;e III-lll'ln the third paragraph under Section 4 of Article III of the bill, there is aprcvislon attempting to fix the price for furnishing photostatic copies for private use by a department or agency. This provision if invalid as bein= asubject 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 bedone in ageneral apcrccrlatirn bill.
9. Onps:e IV-l, Section 2cf Article IV of the bill desling with the e3l;lblllty of junior colleges fcr &prropr;atirn seems to be arestatement of Articles 2815j-2, Verncn's Texas Civil stat<]- tes. Tothe extent that it restates that law it is accnvznient reference to that l,ar, but it cannot amend, modify cr repeal any such provis'cns cfthe general law. 10. Onpqe 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 cnvestments of the special mineral fund is invalid as being asubject cf general legislatlcn andnot properly apart of aCeneral apnrcpriatlt,n bill. 11. Onpage V-20, the last parnjraph cf the scctlcn iealin;: with SamIiouston 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 andlimit andcontrol 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. MaxC. Smith, page 7 (~~-96)

12. Secticns 30throqh I+1of Article VI of the bill appearing onpages VI-8 through VI-11 deal ,qenerally 'with the subject of travel expenses of State officials andemployees. 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 apsropriated 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 anygeneral law on this subject cf travel expenses of State officials end employees. General Comments Wehope 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 abill to enact zenera legislation and anyprovisicn or "rider" other than Emere appropriation must pertain or be related or be Incidental to the purpose or use of tinefunds appropriated. Even then it is sometimes difficult to dotemine whether aprovisicn 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 andtransfer" were used with regard to funds. lrhenthese words can be construed to meaneappropriate" or ear used for,' then such prcvisicns a-e valid as so ccnstrued. Onthe ether hand, the transfer and assignement cf funds are not properly apart 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" wasused. Thegranting of authority is generally not aproper subject for ageneral sprropriation bill but is amelter frr gene.-al legislation where the safeguards which gowith zenera legislaticn was available. In somecases it has been possible to construe this expression in another manner and thus mate it avalid provision. In other instances the grant of the authority was considered superflous as being erestatement of existing authority or authority inherently vested in the aplropriation bill es such abill cannot be the source of authority for the use of the appropriation in the bill.Hon. ur'illiam S- Fly

Hon. MaxC. Smith, page A brw-96)

Very truly yours,

#ILL WILSON Attorney General of Texas

ByLawrence Jones Assistant LJ:lm/PAM APi'ROVED: OPINIOXCOUk!ITTEE: H. Grady Chandler,

Chairman J. C. Davis S. V. Geppert C. KRichards Jo'n Reeves FOOTNOTES: 1). In construing the general rule andthe limited exception contained in Secticn 35of Article III of our "onstituticn, such Section should be examined and construed in connectirn ;vith Section 14of 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 objections, 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 aveto, failing to return abill end objection after adjournment). If anybill presented to the Governor contains several items of appropriation, hemayobject to one or more of such items aiidapprove the ether porticns of bill. In such case, he shall ap:end to the bill at the time of signing it astatement cf the items tc :r!iich he objecta, andno item so objected to shall take effect. If the Legislature be in sesslcn, he shall transmit tc the House in which the bill originated acopy of such state-,

Hon.William 3. Fly Hon. MaxC. Smith, raze 9 (WV-96)

ment andthe items objected to shall be secarately considered.

. .(Similar provisions for cverriding aveto nndobjections 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. Thebonstituticn established nrule that each bill shall contain one subject. It makes alimited exception to that rule to makeit clear that anappropriation bill might contain anumber cf aprropriaticns and accounts. TheConstitution then mndeprcvisl.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, andmust be construed toscthcr. It would follow that such "items" as maybe apzroved or disapproved by the kvtrnor are such "subjects" as mnybe included in anappropriation bill. It would alsc follow that anymatter which would not be subject to the vetc of the Governor as 6n "item" in ageneral aporoprietion bill is such Ematter as is not croperly contained as s "subject" in s l;enerol Spiropriation bill as provided fcr in Section 35 of Article III of our Constitution. Thus the "subjects end accounts" which maybe ac?rroved or disapproved under Secticn 14of Article IV of our Lonstituticn. 2).There are other constitutional provisions relating to the power of the Legislature tc ap:ropriate State money andlimitations on those Eowers. 'Yhosc provis'cns are not directly related to the cuestlcn here as tc what can constituticnnlly be included in ageneral np;ropriLtion bill. Somecf those other ccnstituticns.1 provisic,ns ts tc the basic :>orwerand its limitntlcns are is fellows: Section 6 of Article VIII Section 3of Article VII Section 7of -Article I Secticn !A

9a of Article III Section 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 toHon. William 9. Fly

Hon. MELX

C. amith, page 10

### ~~-96)

makecertain that anrropriations to more than one department in the samebill would not be prohibited. In all other respects general appropriation bills .are subject to the sameprohibition 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 andprohibiting the use of appropriated funds for the peyment of salaries to “Any employee whouses alcoholic activities while on nctive duty” or whoengazes in certain political activities are v&lid in ageneral appropriation bill because they merely detail, limits, or restrict the use of the funds apcropriated or otherwise insure that the money~111 be used for the purposes intended. They donot constitute additional subjects. of general legislation in violation of Section 

### 35of 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 newlaws or repeal old ones through the mediumof ageneral 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 acertain sumof money for aspecific object in such amanner that the executive cfficers of the government are authorized to use that money andnomore for that object and for no other. C. J. ~01

## 4. Page

### 1460.” 7).General legislation 

### maycontain anaprropriation which is merely incidental to andnecessary to carry out the subject andpurpose of the general law. 

### NO.

### 2965. Attorney General’s OpinionHon. <uilliam S. Ply

Hon. MaxC. Smith, page 11 (w-96)

S).The Arizona Supreme Court has sold: “The general appropriation bill is not in the true sense of the term legislatl,on, it is, as the langua:ge implies, merely esettin,? opsrt of the funds necessary for the use andmaintenance of the various departments of the State government already in existence and functioniq.” Sellers v. FrVhmiller, 24P. 2d 66~+~6~e(Ariz. SUD. 19331. TheNevada 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 ~a LC

. 100, 101 (Nevi hp. 1913).