Honorable Robert S. Calvert Opinion No.M- 1199

Comptroller of Public Accounts - State Finance Building Re: Austin, Texas 78711

Dear Mr. Calvert: Validity ,ofriders in the 1971 General Appropriations Act, (Actsof 62nd Leg., R.S. 1971, Chap. 1047,pages 3421, et seq.).

You have requested our opinion on thevalidity of 45rid-

. _ ... ers in the current 1971General Appropriations Act wnicn are quoted in separate paragraphs asyou have numbered themwith
our opinion following theverbatim quotation of the rider.

Certain general principles of constitutional law are applicable to thevalidity of such riders. These principles **may** be summarized as follows:

An appropriation **bill may**  detail, limit or restrict the
use of funds therein appropriated or otherwise insure that the appropriated money will be spent for thepurpose intended. Moore v. Sheppared, 144 Tex. 537, 192 S.W.Zd 559 (1946);Linden
v. Finley, 92Tex. 451, 49 S.W. 578 (1899);Attorney General' Opinions O-445 (1939),V-1253 (1951),V-1254 (1951), 2959 (1935),V-1196 (1951).

A rider attached to the seneral aoorouriation bill cannot repeal, modify or amend an existing generai law. State v. Steele, 57Tex. 203 (1882);Linden v. Finley, supra; Moore v. *Attorney General's Opinions 1745 (1917), 2787 %%%96?ff%5,, 2970 (19351,o-445 (i939),o-1837 (i940), G-2573-(1940); O-5329 (1943),V-412 (1947),V-894 (1949), V-1196 (1951),V-1254 (1951),M-1141 (1972).

If abill does more than set aside a sum ofmoney, provide themeans of its distribution, and towhom it shall be distributed, then it is ageneral law. Attorney General's Opinions 2965 (1935),V-1254 (1951);Moore v. Sheppard, supra. The distinction between ageneral appropriation bill and general legislation has been recognized in this State in the

-5852-Hon. Robert S. Calvert, page 2 (M-1199)

simple fact that the former merely sets apart sums of money for specific objectives and useswhile the latter does more than merely appropriate and limit the use of funds. General legislation constitutes a separate subject and cannot be included within ageneral appropriation bill. Moore v. Shepp Attorney General's Opinions 2965 (1935),V-1254 (191) (1951),WW-294 (19571,WW-310 (19571,H-280A (1968):ar;,v~y;;f;

. The veto power of theGovernor is aLegislative andnot
anExecutive or Judicial function, hence the Governor has only suchpower as theConstitution confers upon him andhemay not disapprove of certain paragraphs orportions of abill and approve the remainder. Fulmore v. Lane, 104Tex. 499, 140 S.W. 405 (1911):Attorney General's Opinions V-1196 (1951), **M-1141 (1972).**  The Governor has thepower toveto only items of an appropriation bill. The Governor has no authority toveto
a rider in an appropriation bill unless it is in itself an item of appropriation. Fulmore v. Lane, supra;Attorney General's Opinion V-1196-il951).

The only authority of the Governor to exercise a substantive veto power over legislation or items of appropriation is clearly set out inArticle IV, Section 14,of the~constitution ofTexas. Where the Constitution has spoken andpreempted thismatter, theLegislature iswithout power either to add toor detract from this constitutional function. In exercising that veto power, theGovernor is exercising a Legislative and not anExecutive or Judicial function. He has only suchpower as the Constitution confers upon him; he cannot disapprove of certain portions of abill which are not items of appropriation, and approve the remainder. Fulmore
v. Lane, 104Tex. 499, 140S.W. 405 (1911);Annotation, 35 A.L.R. 600, and cited cases: 16C.J.S. 617, Const. Law. Sec. 139,n. al; 81C.J.S. 1220, States, Sec. 164, n. 55; and Attorney General's Opinion V-1196 (1951).

Aside from the constitutional substantive veto power of theGovernor granted inArticle IV, Section 14,Texas Constitution, there isno other authority provided forhim tohave
a continuing veto power over expenditure of appropriated funds. Any attempt by theLegislature to delegate to theGovernor thepower to exercise a continuing veto over such expenditures and athis own discretion would constitute an attempt to increase the Governor's veto power. Furthermore, if the Legislature attempted togrant such power by arider in an appropriation bill, such rider would amount togeneral legislation

-5853-Hon. Robert S. Calvert, page 3 (M-1199)

inviolation ofArticle III, Section 35,Texas Constitution, under the authorities cited above.

InAttorney General's Opinion M-1141 (1972),we concluded that inview of the authorities cited therein, arider requiring approval of the Governor as aprerequisite to the expenditure of moneys appropriated therein was invalid. See alsoAttorney General Opinion No. M-280 (1968).
Applying all of the foregoing principles of constitutional law to the attached riders, you are advised that it isour opinion the riders are valid or invalid according to the comments following the language being construed:

1. Page II-43 Section 2,Subsection e, for Special Provisions, which reads, "Salary rates in excess of theminimum amounts specified in Senate Bill No. 116, as amended, and the salaries of coaches and teachers of exceptional children, **may**bepaid with the advance written approval of theGovernor; but such approved rates shall never exceed the rates ofpay for likepositions paid in the public schools of the'City inwhich the State School orHome is located."

That portion requiring written approval of theGovernor is invalid, but the remainder of theprovision isvalid. In support of thevalid portions, seehW-229 andWW-282.

2. Page III-11 for theAir Control Board which reads, "None of 'thefunds appropriated **to**
or that are available for useby theAir Control Board **may**be expended by the Board for legal services of any type until the Attorney General has approved theposition andperson to fill theposition. The Comptroller of Public'Accounts shallmake payment for such service only afterwritten approval has been received from theAttorney General."

This rider is invalid because it is an attempt toenact general legislation in an appropriation bill. Opinions VW-1461 andM-249 areoverruled where such opinions are in conflict herewith.

-5854-Hon. Robert S. Calvert, page 4 (M-1199)

3. Page III-16 forAlcoholic Beverage Commission which reads, "None of the funds appropriated hereinabove to theTexas Alcoholic Beverage Commission shall be expended forbuilding rentals without thewritten approval of the Governor."

This rider is invalid. M-1141. The provisions of Article 666b,Vernon's Civil Statutes, apply and Board of Control approval isnecessary without this rider since it ispre-existing general law.

4. Page III-51 for the Department of Corrections which reads, "It is further provided that none of thebuilding appropriations made hereinabove shall be expended unless and until such time as the Department of Corrections shall have filedwith the Governor and the Legislative Budget Board anorderly plan formeeting long range construction needs of the Department; and such funds shallbe expended only upon approval of the Governor; provided, however, that copies of such requests for theGovernor's approval, and notice of theGovernor's action on such requests, shall be filedwith the Legislative Budget Board."

This rider is,valid as to informational filing, but is invalid as to approval by the Governor since itgives the chief executive a second veto power. M-1141 andM-280.

5. Page III-51 for theDepartment of Corrections which reads, "Anyunexpended balances remaining inprojects under the respective items forBuilding Appropriations may, with the approval of the Governor, be transferred and used for thepurposes of completing construction of other projects enumerated in the same item: provided, however, that copies of such requests for the Governor's approval, and notice of theGovernor's action on such requests, shall be filedwith the Legislative Budget Board."

-5855-Hon. Robert S.Calvert, page 5 (M-1199)

That portion of the rider requiring the Governor's approval is invalid: such approval cannot be required, but that portion requiring filing of information with Budget Board isvalid. M-1141 andV-1254. The agency Board must vote the transfer of funds.

6. Page III-53 for the Department of Corrections which reads, "The Department of Corrections is authorized to expend funds from theMineral Lease Fund during the biennium beginning September 1, 1971, to acquire, by negotiation or condemnation, parcels of land solelywithin theperimeters of theCoffield Unit. Such expenditures, however, cannot be expended without the approval of the Governor. Notice of the Governor's action in such requests, shall be filedwith theLegislative Budget Board."

That portion of the rider requiring the Governor's approval is invalid; such approval cannot be required, but that portion requiring the filing of information with Budget Board isvalid. M-1141 andV-1254. The agency Board must vote the transfer of funds. The old language of this item reguired approval of the Legislative Budget Board for expenditures. In Opinion V-1254 (1951)we held this violates the separation ofpowers (V-1254, pages 13-15).

7. Page III-53 for theDepartment of Corrections which reads, "Anyunexpended balances as ofAugust 31, 1971, for the Department of Corrections in the general appropriations made by the Sixty-first Legislature, Second Called Session (House Bill No. 2) for the Center for Continuing Education inCorrections (ItemNo. 24, Page III-551 are hereby reappropriated to the Department of Corrections for the same purposes for thebiennium beginning September 1, 1971. Provided, however, that such reappropriated funds shall be expended only upon approval of the Governor and that copies of such requests for the Governor's approval and notice of the Governor's actions
on such requests shall be filedwith the Legislative Budget Board."

-5856-Hon. Robert S.Calvert, page 6 (M-1199)

That portion of the rider requiring the Governor's approval is invalid: such approval cannot be required, but thatportion requiring the filing of information with Budget Board can be required. M-1141 andV-1254. The agency Board must vote the transfer of funds. The old language of this item required approval of the Legislative Budget Board for expenditures. In Opinion V-1254 (1951)we held this violates the separation ofpowers (V-1254,pages 13-15).

8. Page III-54 for theBoard of Dental Examinerswhich reads, "Expenditures of operating appropriations made hereinabove to the Board of Dental Examiners shall be contingent upon said Board filing with the Comptroller by not later than the first day of each fiscal year cove.redby this Act, a list of all applicants for licenses topracticedentistryin this State and of allpersons actually granted such licenses for thepreceding twelve-month period, and thebasis (whetherby reciprocity, by clinical examination only, or by clinical and theoretical examination) uponwhich such licenses were granted."

This rider isvalid and is a simple condition which the Legislature has thepower to impose in an appropriation act.

9. Page III-77 for theHighway Department which reads "The Highway Department is authorized to rent or lease equipment of any kind except office machines and electronic computers. Office machines will be rented or leasedwith prior approval of the State Board of Control. Electronic computers will be rented or leased only with the approval of the Governor. This specific authorization shall be construed to be an exception to anyprohibitions and restrictions in the General Provisions of this Act.

This rider isvalid as toBoard of Control approval. **Ar** ticle 666b. This rider is invalid as to requiring Governor's approval, since such approval isnot supported by general law and is a subject which should be covered by the general law. Further, we think Article 6252-12a is the current general law
on this subject and gives the State Auditor duties in this respect. -5857-Hon. Robert S. Calvert, page 7 (M-1199)

10. Page III-77 for theHighway Department which reads, "None of the funds appropriated to the State Highway Department may be expended for the construction of any District Office Building at a cost exceeding Sixteen Dollars ($16)per square foot in construction costs, including engineering and architectural fees, and nobuilding, regardless of type, containingmore than ten thousand (10,000) square feetmay be constructed without prior approval of theGovernor."

This rider is invalid. M-1141.

11. Page III-98 for the Library andHistorical Commission which reads, "Federal grants made toor received in Federal Public Library Fund No. 118 arehereby appropriated for thepurposes forwhich suchgrants may bemade; provided, however, thatnone of such moneys may be expended forpersonal services without the advance, written approval of theGovernor. Such authorized classified positions shall be governed by theprovisions of thisAct relating to the Position Classification Plan."

This rider is invalid. Article 6252-11, the Position Classification Act of 1961, governs this area. See alsoM-1141. WW-117 allows travel tobe paid from this type of Federal funding.

12. Page III-112 for the Parks andWildlife Department which reads, "AnyFederal grants, allocations or aids for the conservation and improvement of yame, fish andwildlife, or for improving, developing andplanning publicparks, or for any other program or activity under the statutory authority of the Parks andWildlife Department, may be accepted and disbursed through the State Treasury by said Department for thepurposes forwhich theywere granted and arehereby appropriated for suchpurposes: provided, however, that expenditure of **any** such Federal grants, allocations, or aids shall not exceed the amounts shown in the schedule of

-5858-Hon. Robert S. Calvert, page 8 (M-1199)

appropriations hereinabove, or forpurposes andprograms not authorized by said schedule of appropriations; and shall have theprior written approval of the Governor."

That portion of the rider requiring theGovernor's approval is invalid. While Opinion **M-266** concerns this fund,
no question was there raised as to thevalidity of requiring prior approval by the Governor. We further hold thatArticle 4050d,V.C.S. is the general lawpertaining to this subject and itdoes not authorize any Governor's approval.

13. Page III-113 for the Parks andWildlife Department which reads, "None of the funds appropriated above may be expended for the purchase or rental of additional electronic data processing equipment without theprior written approval of the Governor."

We hold this rider invalid because Article 6252a, Vernon's Civil Statutes, is ageneral lawon this subject and this law gives powers to the State Auditor: also invalid per M-280, and M-1141.

14. Page III-113 for the Parks andWildlife Department which reads, "None of themoneys appropriated hereinabove by the item, 'State Comprehensive Outdoor Recreation Plan - for updating Texas' comprehensive outdoor recreation plan,' may be expended without the prior, written approval of the Governor, on abudget which describes each character of personal services tobe rendered, and none **of** themoneys in such appropriation item may be expended for reallocating to ahigher salary group anyposition in the State's Position Classification Plan."

We hold this rider invalid insofar as the expenditure requires the approval of the Governor, andwithout which the expenditure may in effect bevetoed by the Governor. Article 6081r, Vernon's Civil Statutes, is the general law and it does not provide forGovernor's approval; also seeOpinion M-280.

**-5859-**Hon. Robert S. Calvert, page 9 **(M-1 199)** 

15. Page III-113 for the Parks andWildlife Department which reads, "None of the funds appropriated above may be expended on boats in excess of 20 feet in lengthwithout the prior written approval of theGovernor; provided, that copies of such requests for the Governor's approval, and notice of the Governor's action on such requests, shall be filedwith the Legislative Budget Board."

This rider is invalid insofar as it requires the Governor's approval, (M-280),but isvalid as to that portion which requires the filing of information with the Legislative Budget Board. M-1141.

16. Page III-114 for theParks andWildlife Department which reads, "None of the funds appropriated above may be obligated for construction of buildings or residences each costing in excess of $5,000 without theprior written approval of theGovernor."

This rider is invalid, **M-280.** Sec. **5,** ofArticle 6081n, Vernon's Civil Statutes is ageneral lawgiving thepower to spend funds to the agency.

17. Page III-115 for theParks and Wildlife Department which reads, "The Parks andWildlife Department ishereby authorized within the limitations of funds appropriated hereinabove forExempt Positions and Salaries of Classified Positions, to establish new and/or reclassify existing salaried positions for thepurpose of implementing all or parts of theManagement Study completed onMay 25, 1970. Provided, however, that any changes in classified positions made for thispurpose, shall have theprior approval of both the Classification Officer and the Legislative Audit Committee, and that any changes in exempt positions made for this purpose, shall have theprior approval of the Governor."
This rider is invalid. Article 6252-11, Vernon's Civil Statutes, is ageneral law covering thismatter.

**-5860~**18. Page III-125 for theTexas Rehabilitation Commission which reads, "It is also provided that, in the event of expansions of Federal programs, additional Federal funds becoming available may be used toemploy additional personnel necessary to carry out the expanded programs, but only with the advance approval of theGovernor; provided, however, that copies of such requests for theGovernor's approval, and notice of the Governor's action
on such requests, shall be filedwith the Legislative Budget Board.*

The requirement for informational filing forbudget reasons isvalid, but the approval by the Governor is invalid. M-208 and 1141.

19. Page III-133 forDepartment of Public Safety which reads, "TheDepartment of Public Safety is authorized to own and operate six (6)airplanes and seven (7)helicopters only. None of the funds appropriated above shall be expended for thepurchase of airplanes orhelicopters without the specific approval of the Governor.w
This rider is invalid. M-280, M-280A, andM-1141.

20. Page III-133 forDepartment ofPublic Safety which reads, "From the amounts appropriated out of theOperator's andChauffeur's License Fund for the support andmaintenance of the Department of Public Safety, an amount not **to** exceed One Hundred and Twenty Thousand Dollars ($120,000) for each year of thebiennium beginning September 1, 1971, ishereby designated for thepurchase of evidence and/
or information and surveillance expenses deemed necessary by the Department of Public Safety; ard accountability for expenditures
as set forth above shall be governed by such rules and regulations as theDirector of the Department of Public Safety **may** recommend, subject to approval by the State Auditor."

-5861-Hon. Robert S. Calvert, page 11 (M-1199)

This rider is invalid to the extent that the approval of the State Auditor is required over the rules and regulations
as to expenditures. C-447 (1965).

21. Page III-136 for Securities Board, which reads, "Emergency transfer of funds between Item 6, 'For salaries of classified positions, part-time and seasonal help, professional fees and,services andwitness fees,' and Item 7, 'Consumable supplies andmaterials, current and recurring operating expense (including travel) and capital outlay,' is authorized upon approval of the Governor."

This rider is invalid only to the extent that itprovides for the Governor's approval as a condition.

22. Page III-141 forTexas Mass Transportation Commission which reads, "None of themoneys appropriated above may be expended without theprior approval of the Governor."

This rider is invalid. M-280, M-280A, andM-1141.

23. Page III-149 forWater Development Board which reads, "Those funds allocated by the Water Development Board under the appropriation for topographic mapping, water studies and investigations shall be used for ground water, surface water, chemical quality investigations, sediment sampling studies, playa lakemodification studies, studies of the Little Wichita River and other West Texas **streams,** and the operation of evaporation stations, to implement theUpper Sabine Study Contract and shall include statistical compilations andhydrological and other studies and investigations by the State, or in cooperation orby contract with other govermental agencies, institutions or non-governmental entities, and may include hourly wages and contract services. Provided, however, that no such expenditures **may**be made without theprior written approval of the Governor on a

-5862-Hon. Robert S. Calvert, page 12 (M-1199)

budget 

### for expenditures which describes each character and **object or**  purpose of obligations tobe incurred."

This rider is invalid insofar as the Governor's approval is required. M-280, M-280A, andM-1141.

24. Page III-160 for Department of Public Welfare which reads, "In the event of disaster or other unforeseeable contingency, there is hereby appropriated out of theCommodity Distribution Fund No. 39, an additional amount not to exceed $30,000 for thepayment of salaries andwages, travel andother operating expenses, provided that expenditure of this additional appropriation must be approved in advance by the Governor, and any position titles and rates ofpay required shall be approved by the State Classification Officer."

This rider is invalid as anunauthorized delegation of power, and confers anunbridled discretion, without any standards or guidelines, upon the Governor. The requirement of theGovernor's approval is also invalid.

25. Page III-165 Special Provisions Riders, which reads, "It is further provided that
none of themoneys appropriated in this Article **may** be expended for the rental of warehouse space inAustin, Texas, for the purpose of storing records or documents without theprior approval of the State Director-Librarian."

Article 5435, 5441a, and 5441d,Vernon's Civil Statutes, contain the general **law.** This rider is surplusage insofar as it states the general law, and is invalid to the extent that it **may** conflict therewith.

26. Page 1X1-165, Section 6, Subsection c, Special Provisions Riders, which reads, "Whenever the State Auditor determines that a Petty Cash Revolving Fund isdesirable for

-5863-Hon. Robert S. **CalVert,** page 13 (M-1199)

aparticular department or agency, the Comptroller of Public Accounts shalldraw
awarrant payable to a local bank on vouchers issued by thedepartment or agency; provided, however, such initial vouchers must bear the approval of the State Auditor. Thereafter, suchpetty cash revolving fund in the local bank may be expended by checks signed by abonded employee of the department or agency designated by thehead of the department or agency to administer such fund. Disbursements from thepetty cash revolving fund shall be reimbursed from appropriations made for thepurposes forwhich the expenditure
was made, and each expenditure **from** the petty cash revolving fund be supported by
a cash disbursement voucher. In the event of an abuse or unwarranted use of anypetty cash revolving fund, the State Auditor shall advise the Comptroller of Public Accounts to call in immediately the resources of such funds."

This rider is invalid because it seeks to change the general laws on deposit of public moneys in the treasury without amending such statutes.

27. Page IV-2 forCentral Education Agency which reads, "The Texas Central Education Agency is authorized to employ personnel inAgency Administration only in the lineitempositions listed above and in those positions listed in the 'Schedule of Classified Positions, Agency Administration,' below. It isprovided, however, that in the event of expansion of Federal programs or inauguration of new State-Federal programs the State's responsibility forwhich lieswith the Central Education Agency, additional positions in excess of the number limitations in the 'Schedule of Classified Positions, Agency Administration' may be utilized, but only with the advance approval of the Governor."

-5864-Hon. Robert S. Calvert, page 14 **(M-1199)**

This rider is invalid to the extent that the Governor's approval is required, and thebalance of the rider isvalid.

**28.** Page IV-13 for School for theBlind and School for the Deaf which reads, "However, such recommended salary rates in excess of theminimum amounts specified in said Senate Bill No. 116, as amended, and the salaries of coaches and teachers of exceptional children, may not be paid without the advance written approval of the Governor: but such approved rates shall
never exceed the rates ofpay for likepositions paid in theAustin public schools."

This rider is invalid to the extent of requiring the Governor's approval, and thebalance of the rider isvalid.

29

. Page IV-26 for theUniversity of Texas at Austin which reads, "None,of the funds appropriated above to theUniversity of Texas at Austin for the item 'LaborandManagement Education and Research' may be expended until
a committee is appointed by the President of theUniversity ofTexas atAustin to administer this program. This committee shall be composed ofpersons who represent either management or labor and the representation
on this committee shall be equal between labor andmanagement leaders from the State. The appointment of thesemembers shall be approved by the Governor. The committee shall appoint adirector who must be approved by both labor andmanagement through their representatives on this committee."

This rider is invalid because it amounts togeneral legislation in theAppropriation Act.

**30.** Page IV-72 forTexas State Technical Institutewhich reads, "None of the funds appropriated above to the Texas State Technical Institute may **be** expended without the prior approval of an annual operating budget by the Governor; provided, however, copies of such requests for the Governor's action thereon, shall be filedwith the Legislative Budget Board."

**-5865-**Hon. Robert S. Calvert, page 15. (M-1199)

This rider is invalid, C-441.

31. Page IV-72 forTexas State Technical Institutewhich reads, "Any architectural fees paid from funds appropriated hereinabove shall have theprior written approval of the Governor."

This rider is invalid, M-280 andM-280-A.

**32.** Page IV-73 forTexas State Technical Institutewhich reads, "None of the funds appropriated hereinabove toTexas State Technical Institute may be expended formaintenance and operation of any aircraft without theprior written approval of the Governor."

This rider is invalid. See **M-280,** M-280A, andM-1141.

**33.** Page IV-al, Section 37,Special Provisions Relating to State Agencies of Higher Educationwhich reads, "PRESIDENTS' HOMES. No funds appropriated by thisAct may be used for thepurpose of constructing ahome for
apresident of any of thegeneral academic teaching institutions named herein, without obtaining the approval of the Governor prior to obligating any funds for this purpose; provided, however, that copies of such requests for the Governor's approval, and notice of the Governor's action on such requests, shall be filedwith theLegislative Budget Board."

This rider is invalid because it constitutes general legislation. SeeM-280, 280-A, andM-1141.

**34.** Page IV-al, Section 38, Special Provisions Relating to State Agencies of Higher Educationwhich reads, "BUILDING CONSTRUCTION. Prior to the allocation, expenditure or encumbrance of any funds appropriated by this Act, including funds provided through Article VII, Sections 17and 18, of the State Constitution, for individual building construction projects costing in excess of twentyfive thousand dollars ($25,000), other than

**-5866-**Hon. Robert S.Calvert, page 16. (M-1199)

classroom library and laboratory building projects, theplanned expenditure of such funds shall be approved by the Governor: provided, however, that copies of such requests for theGovernor's approval, and notice of the Governor's action on such requests, shall be filed with theLegislative Budget Board."

This rider is invalid insofar as the Governor's approval is required. While the Legislature can require information filinq with the Governor andwith the Legislative Budget Board; the requirement of the Governor's-approval is invalid. SeeN-280, 280-A, andM-1141.

35. Page IV-82, Section 43, Special Provisions Relating to State Agencies of Higher Educationwhich reads, "SALARY REPORTING. None of the funds appropriated to institutions of higher education by thisAct shall be expended forpayment of salary to anyperson whose salary isbeing supplemented from other than appropriated funds until a report showing the amount of salary being paid from other sources has been reported to the Secretary of State."

This rider isvalid and is a simple condition which the Legislature has thepower to impose in anAppropriation Act.

36. Page V-28 Salary Provisions which reads, "An employee whose classified position is reallocated by thisAct to ahigher salary group shall receive the step 1rate in the higher salary group or the ratewhich hewould have received had his classified position not been reallocated, whichever rate ishigher. Provided, however, an employee whose classified position is reallocated by thisAct to ahigher salary group, may have his salary adjusted notmore than two steps higher than otherwise provided by this section. Such additional adjustment shall be for the purpose ofmaintaining desirable salary relationships among employees in the affected positions, and shall have theprior approval of the Legislative Audit Committee."

-5867-.

Hon. Robert S.Calvert, page 17 (M-1199)

This rider is invalid insofar as requiring approval of the Legislative Audit Committee. Article 6252-11 contains the general law on the subject of classified salary positions and to the extent that the rider isnot in conflict therewith, it isotherwise valid.

37. Page V-42, Section 15, Subsection b., Travel Regulations, which reads, "Employees of the Governor's office and employees of other State agencies designated by theGovernor torepresent him atgovermental meetings or conferences when held out of the State shall receive actual meal, lodging, and incidental expenses. State officials and employees who travel to represent the Governor atgovernmental meetings or conferences may be reimbursed for their expenses out of appropriations made to the agencies by which they are employed."

This rider isvalid because it is areasonable direction
as to the use of appropriated funds.

38. Page V-43, Section 18, Subsection a., Travel Regulations, which reads, "PASSENGER VEHICLES. None of the moneys appropriated in thisAct may be expended for thepurchase, maintenance or operation of apassenger car or of airplanes designed forpassenger transportation unless authority todo
so is stated by the language of this Act. Where such authority is stated, the purchase of an airplane, or the repair of an airplane, the cost of which is in excess of five thousand dollars ($5,0001, in any one fiscal year shall have theprior written approval of theGovernor, and notice of such approval shall be filedwith the Legislative Budget Board."

This rider is invalid only to the extent of therequirement of the Governor's approval. Opinion M-999 isoverruled to that extent.

-5868-Hon. Robert S. Calvert, page 18 (M-1199)

39. Page V-44, Section 21,Other Provisions, which reads, "REPORTING APPEARANCES BEFORE FEDERAL AND STATE AGENCIES. The Governor's office may require agencies of the State ofTexas appearing before Federal agencies
or agencies of other states to submit in writing to the Governor thepurpose of such meetings and expression of thepolicies of the State agency concerning the subject matter of themeeting. After reviewing the policies, the Governor may require the State agency to conform to thepolicies of the State of Texas as outlined by the Governor and the'Legislature before funds appropriated in thisAct may be expended for necessary travel and other expenses connected with such appearances."
This rider is invalid because it isgeneral legislation in a state appropriation bill.

40. Page V-46, Section 32,Other Provisions, which reads, "AUDITS. None of the appropriations herein made shall be used to employ any firm orperson to audit thebooks of anydepartment, board, commission, institution or State agency, this being theduty of the State Auditor; provided, however, that in any instances where the funds available to said State Auditor are not, inhis judgment, sufficient for any requested or contemplated audit, thedepartment head or heads having authority to disburse the appropriations herein made are hereby authorized todirect the State Comptroller to transfer from any appropriations to the appropriation herein made for theState Auditor the amount which in the judgment of the State Auditor isnecessary for the purpose ofmaking such audit."

This rider is avalid authorization in implementation of the general law and duty of the State Auditor.

-5869-.

Hon. Robert S. Calvert, page 19 (M-1199)

41. Page V-47, Section 38,O.therProvisions, which reads, "TYPEWRITER, ADDING MACHINE AND CALCULATOR REPAIRS. Except for the State Highway Department and State Health Department which maintain their own typewriter repair service, all other agencies of the State with appropriations made inArticle I,Article III, and the Coordinating Board, Texas College andUniversity System, and the Central Offices of the Board of Regents, State Senior Colleges inArticle IV of thisAct andhaving either electric
ormanual typewriters located inAustin, shall have them repaired andmaintained by the Board of Control. The Board of Control shall purchase all necessary repair parts andbe reimbursed by the agencies foronly the repair parts used. None of : the funds appropriated inArticles Iand III of this Act shall be expended for repair ormaintenance service on typewriters located inAustin without theprior authorization of the Board of Control. The Board of Control shall establish such rules of procedure aswill effect an orderly and efficient program for repair andmaintenance of State-owned typewriters inAustin under the control of agencies inArticles Iand III of thisAct.

"All agencies of the State located within the Capitol Complex Area shall have all stateowned adding machines and calculators repaired andmaintained by the Board of Control. The Board of Control shall purchase all necessary parts and be reimbursed by the agencies for only the repair parts used. None of the funds appropriated for this purpose to State agencies located within theCapitol Complex Area shall be expended for repair andmaintenance of State-owned adding machines and calculators without theprior authorization of the Board of Control. The State Board of Control shall establish such rules of procedures aswill effect an orderly and efficient program for

.-5870-Hon. Robert S.Calvert, page 20 (M-1199)

repair andmaintenance of State-owned adding machines and calculators inAustin under control of agencies located within the Capitol Complex Area. State agencies located outside the Capitol Complex Area inAustin may utilize this adding machine and calculator repair service through interagency contract with the Board of Control."

This rider is invalid because it constitutes general legislation. Article 664-3,Vernon's Civil Statutes contains the general law.

42. PageV-48, Section 40,Other Provisions, which reads, "RENTED MACHINES AND EQUIPMENT. None of themoneys appropriated in thisAct shall be used for the rental of any equipment which exceeds a rental cost of $1,000 per year (except for data processing equipment) without having theprior written approval of the Governor. Such approval shallbe required before the request isprocessed by the Board of Control, and the State Comptroller or any localdisbursingofficer shall not issue warrants or checks inpayment of equipment rentals without such prior approval. None of themoneys appropriated by thisAct shall bepaid to any sellerwho delivers any used
or rented equipment in fulfillment of an order for new equipment, even though said equipment has been used by the agency placing the order.

"It is further provided that none of the moneys appropriated by thisAct may be expended for thepurchase or rental of electronic tabulating or data processing equipment without the advance written approval of the Governor therefor. It is the expressed intent of the Legislature that existing tabulating and data processing installations of the State Government shall be efficiently utilized through interagency agreements with State departments and agencies needing such services, prior to the expenditure of public

..5871-’

.

Hon. Robert S.Calvert, page 21 (M-1199)

funds for separate and additional installations of such equipment. Agencies requesting approval of theGovernor for purchase or rental of this type of equipment shall file adetailed report outlining steps taken toutilize existing equipment and reasons why such utiliiation isnot feasible."

This rider is invalid because it constitutes general legislation and also invalidly delegates to the Governor legislative duties and authority.

43. Pages V-51 and 52, Section 47,Other Provisions,which reads, "ATTORNEYS. From and after September 1, 1971, should avacancy occur in any department or institution of higher learning, not otherwise exempted, in Articles III or IVof thisAct in aposition which has as itsprimary function thepractice of law and rendering of legal services and counsel, said position shall be filled only after having received thewritten approval of theAttorney General.

"None of the funds herein appropriated may be expended for legal services until the Attorney General has given prior written approval for the employment of suchpersonnel and the compensation tobepaid. This provision shall apply to all legal services except those rendered by personnel who are classified in the Position Classification Plan.

"None of the funds appropriated in thisAct may be expended for classified positions which function ashearings examiners unless theperson filling suchposition has been licensed topractice law inthe State of Texas. TheAttorney General and State Classification Officer shall cooperate in carrying out the intent of this provision and shall report anyviolation to the Comptroller of Public Accounts who shallwithhold anypayments for theposition inquestion until suchviolation has been corrected.Hon. Robert S.Calvert, page 22 (M-1199)

Provided, however, that this provision shall not apply to such classified positions filled before the effective date of thisAct.

"None of the funds appropriated inArticles II, III and IVof thisAct, with the exception of funds appropriated to the Secretary of State, may be used for thedelivery of a written legal opinion unless a copy of such opinion is furnished theAttorney General.

"None of the funds appropriated inArticles II, III and IVof thisAct, with the exception of funds appropriated to the State Library and for State-supported law schools, **may**be expended forpurchase of lawbooks without the approval of theAttorney General."

This rider is invalid because the subject matter involved constitutes general legislation. To the extent that this holding conflicts with prior opinions, the same arehereby overruled to the extent of conflict. Those include C-449 (1965); C-485 (1965);C-782 (1966);M-249 (1968).

44. PageV-55, Section 59,Other Provisions, which reads, "It is also provided that, in the event of expansions of Federal programs, additional Federal funds becoming available may be used to carry out the expanded programs, but only with the advance approval of theGove,rnor;provided, however, that copies of such requests for theGovernor's approval, and notice of the Governor's action on such requests, shall be filedwith the Legislative Budget Board."

This rider is invalid to the extent that it requires the approval of the Governor.

45. PageV-51, Section 45,Other Provision,s, which reads, "BUILDING ALTERATIONS PROHIBITED. None of the funds appropriated in thisAct may be expended for removing walls, partitions
or anyother permanent parts of the first and

-5873-Hon. Robert S. Calvert, page 23 (M-1199)

second State Office buildings, the Supreme Court building, theArchives and Inusrance buildings, and theFinance building, except for such renovations thatmay be necessary fornew offices or departments moving into suchbuildngs, unless otherwise authorized andprovided for elsewhere in this Act, or upon the approval of the State Board of Control."

This rider is invalid and constitutes general legislation. Article 665,Vernon's Civil Statutes, is the general law on this subject andprovides authority for the Board of Control to repair buildings.

The above opinion concerning thevarious rider provisions of the appropriation bill about which our advice was requested intentionally expresses noview onwhether the subjectmatter of thevarious riders might be validly enacted by
some formof general legislation.

It is our opinion that those riders discussed above which attempt toprovide for an approval and an informational filing with the Budget Board express two distinct legislative intents, and that the second intent is severable from the first:however, except where the item of appropriation is contingent upon the filing being made [forexample, item 8above, page 61 the language requiring the filing appears tous tobe directory and notmandatory.

SUMMARY -------

Forty-'fiveriders contained in the 1971 General Appropriation Act are considered andpassed upon as tovalidity. See this Opinion for specific riders.

Prepared by Roger Tyler andJohn Reeves I Assistant Attorneys General

-5874-Hon. Robert S. Calvert, page 24

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman

J. C.Davis Harriet Burke Jack Sparks Roland Allen

SAMUEL D.MCDANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant (M-,1199)

I -5875-