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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 retirementat the age of seventy (70)of statutory officersand employees Dear Governor Smith: of the State:

You have requestedan opinion from this office concerning the: 11

. . .validity of a 'rider'appearing in the GeneralAppropriat,ion Bill (H.B. 12) at Section 4, Page V-33, purporting toprovide for mandatory retirementat age 70 of statutory officersand 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'AppropriationBill, provides that:

"Sec. 4. LIMITATION OF EMPLOYMENT BEYOND AGE 70. None of the moneys appropriated in Articles I, II and III of thisAct shall,after September 30, 1965, be paid as compensation for personal services to any person over age 70 who holds an appointivepublic office or position of public employment, created or authorized by statutory enactment,and who is eligible forkretirementbenefits 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 theprovisions of this section. Moreover, this section shallnot prohibit the payment of compensation,otherwisedue, 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)

makingtheprohibition in this section effective, every person who holds an appointivepublic office
or position of public employment for which an appropriation is made inArticles 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 hereinafterprovided, a sworn statement on or before September 30, 1965, on a form prescribed by the Comptroller of PublicAccounts showing: (1) the month, day and year of his or her birth; (2) the place of birth; (3) themonth, day and year when suchperson became, or will become, 70 years of age; (4)whether onthe date shown in the preceding item suchperson was, or will be, eligible for retirementbenefits under a retirement systemprovi.ded

by the State of Texas or to which it contributes; (5) thename or title of the office
or position ,heldand of the employinggovernmental agency; and (6) such other informationas the Comptrollermay require for the enforcementof this section. One copy of the statement shall be filed with the Comptrollerand the other shallbe filed with the administrativehead or officer or the court, judicial unit, hospital or special school, executive, legislative, administrative, or other governmentaldepartment 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 statementhereinabove 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 conclusivelypresumed 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 shallnot thereafterpay any warrant in favor of suchperson from any funds, of any character whatsoever, appropriatedby thisAct. 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 sectionapplies. In making up a payroll for succeeding months in the fiscalyears of 1966 and 1967, the. -,.

HonorablePreston Smith,page 3 (c-443)

names of all such persons and of thosepersons who became 70 years of age during the preceding month shall be omitted therefrom."

It is well established that general legislationcannot be included withina general appropriationbill. 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 appropriationbill 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 supporthimself 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 (651yesrs 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 suchagency; beard, ccmmission,department or institutionor any political subdivision of the State of Texas 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 enforcementpeace ,officersor for firefighters;provided, further, that the provisions of thisAct shallnot apply to institutionsof higher educationwith established retirementprograms.

"Section4. 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 suchpersons 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 institutionof the government of the State of Texas, phasis added). creates an emergency
. . .I'(EmThe foregoinggeneral legislationprohibits, the various agencies, boards, commissions,departmentsand institutionsof 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 ArticleV of House Bill 12 of the 59th Legislaturemodifies or amends the existinggeneral law set out in the provisions ofArticle 6252-14, Vernon's Civil Statutes.

In the case of Caldwellv. Board of Regents of theUniversity 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 appropriationbill enacted by the Lkgislature of the State of Arizona, which would prohibit a husbandand wife being includedat the same time on the payrollsmentioned in the general appropriationbill. 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 appropriationbill could contain in its appropriation legislationother than the
mere appropriation of money for thepurposes set forth thereunder,and we said" l*+ * After a careful review of the cases.we think the rule laid down therebymay be statedas follows.
e appropriationbill can containnothing bu the a - propriation of money for specificpurposes, and such othermatters as are merely incidentaland necessary to seeing that ,the money is properly expended for thatpurpose 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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'In the absence of constitutionalor statutory, disqualificationall persons are eligible to public employmentwhom 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 formany years a number of employees of then state, in its various activities,have been husband and wife. In the absence of theproviso under considerationthere is no doubt thatmarital status is not the slightest legal impediment to the employment of any person by the state. If the proviso is valid it automaticallydisqualifies one half of our married citizens from such employment. The question of whether legislationhaving this purpose and effect is morally just, economically sound, or politically expedients, is not one for the courts to consider. Whether the legislaturemay constitutionallyenact ~suchlegislation in any manner is not necessary for us to determine in thepresent case,. But to hold that legislation having thispurpose and far .reaching effect is 'merelyincidentaland necessary to seeing that the money is properly expended for thatpurpose only' is to substitute the shadow for the substance,and to disregard the purpose and effect of the proviso entirely.

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"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 themoney so appropriated,which are necessarily connectedwith and related to thematter of providing the expenses of the government,are so related, connectedwith, and incidental to the subject of appropriations that they do not violate the Constitution if incornorated in such general appropriation bill. It is only suchmatters as are foreign,not related to, nor connected with such subject, thatare forbidden. Matters which are germane to and naturally and logically connected with the expenditureof 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 AppropriationBill,

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House Bill 12 of the 59th Legislature, at Section 4, pageV-33, which would purport toprovide for themandatory retirementat age seventy (70)of statutory officersand employees of the State of Texas is invalid for the reason that such 'rider"wouldhave the effect of'repealingor modifying theprovisions of Article 6252-14. In addition to the ion that the aforesaid "rider foregolng,'weare of the further opin. " falls wlthin the classificationof being general legislationand is, therefore,not properly included within a general appropriationbill.

PB:JR:ms SUMMARY

The "rider" appearing in House Bill 12 of the 59th Legislature, the GeneralAppropriation Bill, which purports to provide formandatory retirementat age seventy (70) of statutoryofficers 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 includedwithkln a general appropriation bill.

Yours very truly,

WAGGCRRR CARR Attorney General

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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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