June 5, 1974 The Honorable Raymond W. Vowel1 Commissioner. Opinion No. 

### H- 321 State Department of Public Welfare John H. Reagan Building Austin, Texas 78701

Dear Commissioner Vowell: Re: Validity of rider to Department of Public Welfare’s appropriations requiring dentures for Public Welfare recipients tobe made inthe laboratory 

### ofthe Department 

### of Corrections. The current Appropriations Act for fiscal 1974 and 1975 sets aside ~asum of money from the Medical Assistance F’undtobe used by the Department of Public Welfare for “Eye Glasses, Dentures and Hearing Aids. ” Acts 1973, 63rd Leg., ch. 659, p. 1858, Item 50A(b). You are concerned with aprovision apparently intended as a rider to this appropriation which states:

“(8) Inall instances inwhich the Department provides, out of funds appropriated under Item 52A [sic., ,obviously intended ,torefer to Item 50A], dentures for recipients of Public Assistance, it is the intent ofthe Legislature that the recipient shall have the choice of dentists, but the plates must be made inthe laboratory ofthe Department of Corrections from impressions furnished by the dentist. ” Acts 1973, 63rd Leg
., ch. 659, p. 1860. (Emphasis added) .Section 35 

### ofArticle 3

### ofthe Texas Constitution provides in part: “No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and onaccount ofwhich moneys are appropriated) shall contain more than one subject, whtch shall be expressed in its title, ”



### p. 1484The Honorable Raymond W. Vowell, page 2 (H-321)

The nature ofappropriations bills necessitated a special exception to the traditional one subject requirement to allow inclusion ofappropriations of funds for two or more departments, subjects, accounts or purposes with the one general purpose ofappropriating money and limiting its use. Attorney General Opinion V-1254 (1951). A general appropriations bill is nonetheless subject to the constitutional prohibition against including more than one subject in abill. The appropriation of funds is the allowed one subject ofthe bill and consequently, ageneral appropriations bill cannot contain another different subject, such as general legislation through a rider. An appropriation bill or a rider toit may set aside a sum ofmoney for a specific purpose, provide the means for its distribution, and towhom it shall be distributed, if the rider is necessarily connected with and incidental to the appropriation and use of funds. In our opinion, a rider which is merely declaratory of existing law, inmany instances may properly limit and restrict an appropriation by words directing that the funds “must” be spent in aparticular manner. However, in this instance the language requiring that denture “plates must be made inthe laboratory ofthe Department of Corrections” is a form of general legislation andis prohibited by Art. 3, Sec. 35 from inclusion in a general appropriations bill. Item 50A, the “Medical Assistance Fund” ofthe appropriation to the Department of Public Welfare, is the repository ofall appropriations pursuant to the ‘Medical Assistance Act of 1967”, Sec. 17, Article 695j-1, V. T. C.S. Section 2ofthe latter Act explains that its purpose, in part, his“to enable the state to obtain all benefits provided by the Federal Social Security Act as it now reads or as it may be amended
. . . This Act shall be liberally construed and applied in’relation to Federal law and regulations
. . . . I’ Section 5ofthe state law tracks a federal requirement by providing that “No recipient ofMedical Assistance shall be denied freedom of choice inhis selection ofaprovider ofMedical Assistance that is authorized by the State Department of Public Weltire. ‘I

p. 1485The Honorable Raymond W. Vows& page 3 (H-321)

The provision ofthe federal Social Security Act which requires
“free choice” as one aspect ofaqualifying State plan for medical assistance is Section 1902(a)(23), codified as 42 U.S. C.A., Sec. 1396(a). providing:

“A State plan for medical assistance must -

. . D

“(23) provide that any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy,. or person, qualified toperform the service or services required
. . . ” Federal regulations in defining denture service, require not only that dentures be prescribed by adentist, but that the dentures be made by or according to the directions of a dentist. 45 C. F. R., Sec. 249.10 (12)(ii). In our opinion, the rider is an attempt to amend the general provision in Article 6953-1, Sec. 5, which confers upon a recipient “freedom of choice in his selection ofa provider ofMedical Assistance”, and is to that extent invalid as general legislation contained in an appropriations bill.
.. The Prison-Made Goods Act of 1963, Article 6203c, Sec. 9, V. T. C.S. authorizes the Department ofCorrections to supply the requirements ofthe Department of Public Welfare, ifit is able to do so. However, in our opinion, that Act does not require the Department of Public Welfare to use the prison facilities tomake dentures in every instance, and especially if doing so would violate any provision ofthe Texas “Medical Assistance Act of 1967” or otherwise it could place the state in aposition of noncompliance with Title XIX ofthe federal Social Security Act, 42 U.S. C. 1396(a), et seq., and its applicable federal regulations. SUMMARY A rider tothe Department of Public Welfare’s appropriations for 1974 and 1975 requiring dentures for

p. 1486The Honorable Raymond W. Vowell, page 4 (H-321)

welfare recipients tobe made in the laboratory at the Department of Corrections is invalid as general legislation contained in a General Appropriations, Bill in violation ofSec. 35, Article 3. Very truly yours,

rney General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

p. 1487