OFTEXAS 

AUSTIN II. TEXAS 

W-ILL WILSON 

ATTORNEYGENERAL 

April 16, 1957 

Hon. William S. Fly, Chairman 

Senate Finance Committee 

Hon. Max C. 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 2 7 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 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 Leglslature In a general appropriaticn bill. Generally, we are 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 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 expressed in its title, such act shall be void only a8 to so 

much thereof as shall not be so expressed.” 1 
- . 

Hon. 

Hon. 

lvilliam S. Fly 

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 properly attached to either of the others, except In the instances 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, 

appropriated." 

for and on account of which mcneys are 

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, limit or restrict the use cf funds appropriated where such crcvisicns 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 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 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 Opinicn No. 

! 

-1254 for numerous Attorney General’s Opinicns so 

holding. 

6. Riders in the genersl a$propriaticn bill seeking to confer upon a jlolnt board composed of members of the Legislature 

(Legislative Budget tioard) authority to require further itemization 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>propriation 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.etting 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 appropriation 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 dotermine that it hasbeen authoriaed by rxiating general legislation. 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 appcopriatian. 
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 unconstltutlcnal 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. 

v-1254 (1951). 

Attorney General's Oplnlcn 

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 rubllc 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 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 a matter of general legislation; 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 " I Zd 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 cnvestments of the special mineral fund is invalid as being a subject cf 

general legislatlcn and not properly a part of a Ceneral apnrcpriatlt,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 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 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 contained 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 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 

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 aprropriaticns 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 disapproved 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 Spiropriation 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 limitations on those Eowers. 'Yhosc provis'cns are not directly related 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 

!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 to 
Hon. William 9. Fly 

Hon. MELX C. 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 otherwise insure that the money ~111 be used for the purposes intended. 

They do not constitute additional subjects. of general legislation 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. 

NO. 2965. 

Attorney General’s Opinion 
Hon. <uilliam S. Ply 

Hon. Max C. 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 e settin,? opsrt 

of the funds necessary for the use and maintenance of the various 

departments of the State government already in existence and 

functioniq.” Sellers v. FrVhmiller, 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 ~a LC . 100, 101 (Nevi hp. 1913).