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Honorable Preston Smith 

Lieutenant Governor 

Capitol Station 

Austin, Texas 

Opinion No. C-443 

Re: Validity of a "rider" appearing in the General 

Appropriation Bill, House 

Bill 12, at Section 4, 

page V-33, and purporting to provide for mandatory retirement at the age 

of seventy (70) of statutory officers and employees 

Dear Governor Smith: of the State: 

You have requested an opinion from this office concerning 

the: 

11 . . . validity of a 'rider' appearing in 

the General Appropriat,ion Bill (H.B. 12) at Section 4, Page V-33, purporting to provide for 

mandatory retirement at age 70 of statutory officers and employees of the State. Constitutlonal officers, as you will note, are excepted from 

its provisions." 

Section 4 of Article V of House Bill 12 of the 59th Legislature, the General'Appropriation Bill, provides that: 

"Sec. 4. LIMITATION OF EMPLOYMENT BEYOND AGE 70. 

None of the moneys appropriated in Articles I, II 

and III of this Act shall, after September 30, 1965, 

be paid as compensation for personal services to any 

person over age 70 who holds an appointive public 

office or position of public employment, created or 

authorized by statutory enactment, and who is eligible fork retirement benefits under any retirement system provided by the State of Texas or to which it 

contributes. Incumbents of offices or positions created by the Constitution of this State are specifically excepted from the provisions of this section. 

Moreover, this section shall not prohibit the payment 

of compensation, otherwise due, for the month in which 

a person becomes 70 years of age. For the purpose of 

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Honorable Preston Smith, page 2 (C-443) 

making the prohibition in this section effective, 

every person who holds an appointive public office 

or position of public employment for which an appropriation is made in Articles I, II and III hereof, and to which office or position this section 

does apply, and who is or will become 70 years of 

age or more by September 30, 1965, shall execute in 

duplicate, and file as hereinafter provided, a sworn 

statement on or before September 30, 1965, on a form 

prescribed by the Comptroller of Public Accounts 

showing: (1) the month, day and year of his or her 

birth; (2) the place of birth; (3) the month, day 

and year when such person became, or will become, 

70 years of age; (4) whether onthe date shown in 

the preceding item such person was, or will be, eligible for retirement benefits under a retirement 

system provi.ded by the State of Texas or to which 

it contributes; (5) the name or title of the office 

or position ,held and of the employing governmental 

agency; and (6) such other information as the Comptroller may require for the enforcement of this section. One copy of the statement shall be filed with 

the Comptroller and the other shall be filed with the 

administrative head or officer or the court, judicial 

unit, hospital or special school, executive, legislative, administrative, or other governmental department or agency responsible for preparing the payroll 

on which the name of the affiant appears. Incumbents 

of offices or positions to which the prohibition in 

this section applies, and who attain the age of 70 

between September 30, 1965 and September 1, 1967, 

shall execute and file the sworn statement hereinabove described not less than 45 days before the 

date on which the affiant attains the age of 70. Any 

person who is required to file the foregoing statement and who, without good cause, fails to do so, 

shall be conclusively presumed to have neglected the 

performance of an assigned duty, and pursuant to Article 16, Section 10, of the Constitution of the State 

of Texas the Comptroller shall not thereafter pay any 

warrant in favor of such person from any funds, of 

any character whatsoever, appropriated by this Act. 

Every person responsible for making up a payroll for 

the month of October, 1965, shall omit therefrom the 

names of all persons who were 70 years of age or over 

on or before September 30, 1965, and to whom this 

section applies. In making up a payroll for succeeding months in the fiscal years of 1966 and 1967, the 
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Honorable Preston Smith, page 3 (c-443) 

names of all such persons and of those persons 

who became 70 years of age during the preceding 

month shall be omitted therefrom." 

It is well established that general legislation cannot be 

included within a general appropriation bill. Moore v. Sheppard, 

144 Tex. 537 192 S.W.2d 599 (1946); Attorney ‘General's Opinions 

~~~~~:,S~lIh~~“,“rr-96 (1957) - In addition, it is also well 

rider" in a general appropriation bill cannot 

repeal, modify or amend an existing general law. 

ters of the Republic, 106 Tex. 80, 156 S.W. 197 (1 

Conley v. Daughinden v. 

49 S.W. 578 (1899); State v. ?',%et 57 Tex 

General’s Opinions No. V-1254 ( 1951) and 

Article 6252-14, Vernon's Civil Statutes, enacted by the 

58th Legislature in 1963, provides that: 

"Section 1. It is hereby declared to be the 

policy of the State of Texas that no person shall 

be denied the right to work, to earn a living, and 

to support himself and his family solely because of 

age. 

“Set tion 2. No agency, board, commission, department, or institution of the government of the 

State of Texas, shall establish a maximum age under 

sixty-five (651 yesrs nor a minimum age over twentyone (21) years'fbr employment, nor shall any person 

who is a citizen of this State be denied employment 

by any such agency; beard, ccmmission, department or 

institution or any political subdivision of the State 

of T exas sole? becauselof age; provided, however, 

nothing in th s Act sha 1 be construed to prevent the 

imposigion of,minimum and maximum age restrictions 

for law enforcement peace ,officers or for firefighters; provided, further, that the provisions of 

this Act shall not apply to institutions of higher 

education with established retirement programs. 

"Section 4. The fact that older persons often 

meet with resistance to employment solely because of 

their age and the further fact that citizens of this 

State should be allowed to earn a livinn, to work, 

and to support themselves and their famziies, and-because such persons should not be denied the opportunity of employment by any agency, board; commission, 

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Honorable Preston Smith, page 4 (C-443) 

department, or institution of the government of the 

State of Texas, 

phasis added). 

creates an emergency . . .I' (EmThe foregoing general legislation prohibits, the various 

agencies, boards, commissions, departments and institutions of 

the State of Texas from refusing employment to any person who is 

a citizen of the State solely because of age. Therefore, the provisions of Section 4 of Article V of House Bill 12 of the 59th 

Legislature modifies or amends the existing general law set out 

in the provisions of Article 6252-14, Vernon's Civil Statutes. 

In the case of Caldwell v. Board of Regents of the University of Arizona, 54 Ariz. 404, 96 P.2d 401 (1939) the Supremr 

Court of Arizona had before it the question of thi validity of a 

"rider" in the general appropriation bill enacted by the Lkgislature of the State of Arizona, which would prohibit a husband and 

wife being included at the same time on the payrolls mentioned in 

the general appropriation bill. The court in its opinion, which 

held such rider was void, stated that: 

"In the case of State v. Angle, Ariz., 91 P. 

2d 705, 708, the question again arose as to how 

far the biennial appropriation bill could contain 

in its appropriation legislation other than the 

mere appropriation of money for the purposes set 

forth thereunder, and we said" l* + * After a careful review of the cases. we think the rule laid 

down thereby may be stated as follows. 

appropriation bill can contain nothing bu e the a - 

propriation of money for specific purposes, and 

such other matters as are merely incidental and 

necessary to seeing that ,the money is properly expended for that purpose only. Any attempt at any 

other legislation in the bl-11 is void. * * *I 

1, 

. . . 

"We think there can be no question that, as 

was said in'the Gros.iean case. sunra. *in the light 

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Honorable Preston Smith, page 5 (C-443) 

'In the absence of constitutional or statutory, 

disqualification all persons are eligible to public 

employment whom the appointing officers select, regardless of age, sex, status orother qualifications. 

People ex rel. v. McCormick, 261 Ill. 413, 103 N.E. 

1053, Ann.Cas.l915A, 338. It is a well knownfact 

that for many years a number of employees of then 

state, in its various activities, have been husband 

and wife. In the absence of the proviso under consideration there is no doubt that marital status is 

not the slightest legal impediment to the employment 

of any person by the state. If the proviso is valid 

it automatically disqualifies one half of our married 

citizens from such employment. The question of whether 

legislation having this purpose and effect is morally 

just, economically sound, or politically expedients, 

is not one for the courts to consider. Whether the 

legislature may constitutionally enact ~such legislation in any manner is not necessary for us to determine in the present case,. But to hold that legislation having this purpose and far .reaching effect is 

'merely incidental and necessary to seeing that the 

money is properly expended for that purpose only' is 

to substitute the shadow for the substance, and to 

disregard the purpose and effect of the proviso entirely. 

11 

. . . 

"In the later case of State ex rel. Whittier v. 

Safford; 28 N.M. 531, 214 P.759, 760, considering the 

same subject, the court said: '* * * The details of 

expending the money so appropriated, which are necessarily connected with and related to the matter of 

providing the expenses of the government, are so related, connected with, and incidental to the subject 

of appropriations that they do not violate the Constitution if incornorated in such general appropriation 

bill. It is only such matters as are foreign, not related to, nor connected with such subject, that are 

forbidden. Matters which are germane to and naturally and logically connected with the expenditure of the 

moneys provided-in the bill, being in the nature of 

detail, may be incorporated therein. * * *I" (Emphasis added). 

In view of the foregoing authorities, we are of the opinion 

that the "rider" appearing in the General Appropriation Bill, 

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Honorable Preston Smith, page 6 (C-443) 

House Bill 12 of the 59th Legislature, at Section 4, page V-33, 

which would purport to provide for the mandatory retirement at 

age seventy (70) of statutory officers and employees of the State 

of Texas is invalid for the reason that such 'rider" would have 

the effect of'repealing or modifying the provisions of Article 

6252-14. In addition to the 

ion that the aforesaid "rider 

foregolng,'we are of the further opin. 

" falls wlthin the classification of 

being general legislation and is, therefore, not properly included 

within a general appropriation bill. 

PB:JR:ms 

SUMMARY 

The "rider" appearing in House Bill 12 of 

the 59th Legislature, the General Appropriation 

Bill, which purports to provide for mandatory retirement at age seventy (70) of statutory officers 

and employees of the State is invalid for the 

reason that it modifies or repeals the provisions 

contained in Article 6252-14, Vernon's Civil Statutes, and for the further reason that said "rider" 

is a subject for general legislation and cannot 

properly be included withkln a general appropriation bill. 

Yours very truly, 

WAGGCRRR CARR 

Attorney General 

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Honorable Preston Smith, page 7 (C-443) 

APPROVED: 

OPINION COMMITTEE 

W. V Geppert, Chairman 

J. C. Davis 

John Banks 

Marietta Payne 

W. 0. Shultz 

APPROVED FOR THE ATTORNEY,GENERAL 

By: Stanton Stone 

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