TEEATFORNEY GENEECAL 

OF TEXAS 

June 28, 1951 

Hon. Allan Shivers 

Governor of Texas 

Austin, Texas 

Dear Governor: 

Opinion No. V-l 196 

Re: Authority of the Governor 

to veto separate riders in 

the general appropriation 

bill and related questions 

with respect to House Bill 

426. 

Your request for an opinion of this office was received on June 14, 1951, and concerns the riders to House Bill 426, 

52nd Legislature. the general appropriation bill. The following 

questions are presented. 

1. Does the Governor have authority to veto 

a rider if it is unconstitutional? 

2. Is each rider to House Bill 426 constitutional or authorized by statute? 

Further, you request such advice with respect to each rid,er as 

this office “feels would be of benefit to the. agency or department affected in order that they may be properly guided.” 

‘The veto power of the Governor is a legislative and 

not an executive or judicial function. Hence, the Governor has 

only such power as the Constitution confers upon him, and inthe 

absence of express authorization he may not disapprove of certain paragraphs or portions of a’bill and approve the remainder. 

Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911); Annotation, 

35 A.L.R. 600, and cases cited therein. 

The authority of the Governor to approve or disapprove legislation is contained in Article IV, Sec. 14, of the Constitution of Texas, which is as follows: 

“Sec. 14. Every bill which shall have passed 

both houses of the Legislature shall be presented to 
Hon. Allan Shivers, Page 2. V-l 196 

the Governor for his approval. If he approve he 

shall sign it; but if he disapprove it, he shall return it, with his objections. to the House in which 

it originated, which House shall enter the objections at large upon its journal, and proceed to reconsider it. If after such reconsideration, twothirds of the members present agree to pass the 

bill, it shall be sent, with the objections, to the 

other House, by which likewise it shall be reconsidered; and, if approved by two-thirds of the 

members of that House, it shall become a law; but 

in such cases the votes of both Houses shall be determined by yeas and nays, and the names of the 

members voting .for and against the bill shall be 

entered on the journal of each House respectively. 

If any bill shall not be returned by the Governor 

with his objections ,w%thin ten,days (Sundays excepted) after it shali have been presented to him, the 

same shall be a law, ‘in like manner as if he had 

signed it, unless the Legislature,, by-its adjournment. prevent its return, in which case it shall be 

a law, unless he shaEfile.the s.amei with his ob- _.. 

jections, in the office-of the ,Secretary of State and. 

give notice thereof by public proclamation within 

twenty days after such adj,ournment. If any bill 

presented to the Governor Fontains several items 

of appropriation he may object to one or more of 

such items, and approve the other portion of the 

bill. In such case he shall append to the bill, at 

the time of signing it, a statement of the items to 

which he objects, and no item so objected to shall 

take effect. If the Legislature be in session, he 

shall transmit to the House in which the bill originated a copy of such statement and the items obz 

jetted to shall be separately considered. If, on 

reconsideration, one or more of such items be approved by two-thirds of the members present of 

each House, the same shall be part of the law, notwithstanding the objections of the Governor. If any 

such bill, containing several items of appropriation, 

not having been presented to the Governor ten days 

(Sundays excepted) prior to adjournment, be in the 

hands of the Governor at the time of adjournment, 

he shall have twenty days from such adjournment 
Hon. Allan Shivers, Page 3. V-1196 

within which to file objections to any items thereof and make proclamation of the same, and such 

item or items shall not take effect.” (Emphasis 

added throughout.) 

Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911). 

is the only Texas case on the authority of the Governor to veto 

a rider in an appropriation bill; and is recognized as one of the 

leading cases on this subject. The following excerpt from the 

opinion of Justice Ramsey in that case vividly illustrates the action of the Governor in vetoing a part of the appropriation bill 

there involved : 

U ‘Attorney General’s Department. 

For the Years Ending-- 

August 31,1912 -August 31.1913. 

For the eupport and maintenance of the’ 

Attorney General’s department. in-’ 

eluding postage, stationery, telegrams, 

telephones, furniture, repairs, express, 

typewriters and fittings, contingent expenses, costs in civil cases- in which the. 

State of Texas or any head of a department is a party; for the actual traveling 

expenses and hotel bills incurred by the 

Attorney General or any of his as&i&ants 

or employ& in giving attention to the 

business of the state elsewhere than in 

the city of Austin; for depositions and 

procuring evidence and documents to be 

used in civil suits or contemplated suits 

wherein the state is a party; for law books 

and periodicals; for the payment of any 

and all expenses incident to and connected 

with the administration of the duties of 

the Attorney General’s office; for the enforcement of any and all laws, wherein 

such duty devolves upon the Attorney 

General; for the payment of any and all 

expenses in bringing, prosecuting and defending suits; for the payment of the salary 

and maximum fees provided by the Con-. 
274 

Hon. Allan Shivers, Page 4, V-1196 

stitution for the Attorney General, 

and for the payment of the salaries 

and compensation of his assistants 

and employ& and other help deemed by the Attorney General to be 

necessary to carry on the work of 

the Attorney General’s department, 

there is hereby appropriatedto be expended during the two fiscal 

years ending August 31st, 1912, and 

August 31st, 1913. to be paid by the 

Treasurer on warrants drawn by the 

Comptroller upon vouchers approved 

by the Attorney General ,.......... $41.580.00 -$4&W&W 

t of the above it 

e purpose of pay0.00 per annum 

exceed $2.000.00 

per annum, and for the pu the salaries of the assistants employed; provide tant shall receive more 

salary than $2,500.00 per. the Attorney General shall 

have the power and author y such stenographic clerks 

as he may deem net the work of the department, not to exceed horn shall be chief 

clerk and bookkee nd there may be nded out of the 

above item of a iation a sum not to 

alaries of such stenograp 

that no sten hit clerk shall receive more 

ere may be employed one porter w 

e item of appropriation a salary of 

ere may be expended out of the above item 

or postage, stationery, telegrams, telepho 

repairs, express. typewriters, and fittings and 

enses so much thereof as may be necessary, not to ex 
275 

Hon. Allan Shivers, Page 5, V-11.96 

sum of $1.350.09 per annum. The remainder of the 

of appropriation, or so much thereof as may be de 

ses in which the state of Texas or any 

a party; for the actual traveling e 

by the Attorney General, or fan 

iving attention to the busines 

e city of Austin; for de 

curing evidence documents to be use 

contemplated su erein the state i ; for law books 

and periodicals; a any and all laws 

of the state of Texas valves upon the Atany and all expenses 

deemed necessary by tb eneral in the prosecution 

and defense of all suits, an arly for the enforcement 

of the anti-trust and co s and for the employment 

of special counsel and o en the same may be deemed 

necessary by the A yided that the head of 

-‘. said department sh the absences of the varether from sickness, 

vacation or 0 ecord of such 

absence be i rated in the report 

tment; provided, .*a 

stated herein, and no more. shall 

evenue for the Attorney General’s 

e fiscal years beginning September 1st. 

t 31st. 1913. and provided further, that n 

e created, nor shall any warrants be issued nor 

Although the Court upheld the Governor’s veto with respect to the items of’“‘eighty+hree thousand and ‘one hundred and 

sixty ($83,160.00) dollars” and ‘$41.580.00,” the Court held that 

.t.he Governor had no authority to veto the rider shown above. Each 

member of the Court wrote a separate opinion, but all agreed on 

the lack of authority in the Governor to veto the rider. In the opinion of Justice Dibrell, the following is said: 

“The authority of the Governor to veto the 

language of the appropriation bill under the Attorney 

General’s department. .which directs tbe’method ofhis 

using the appropriation, for that department. is ques- 
$376 

Hon. Wan Shivers, Page 6, V-1196 

, 

tioned. and it ~devolves upon the court to determine that issue. The duty of defining the power 

of the executive in relation to the exercise of the 

veto privilege is, as suggested by Chief Justice 

Woods in the case of State vs. Holder, 76 Miss. 

177, 23 South. 643, one of difficulty and delicacy. 

The veto power of the executive under our system 

of government is not inherent in such officer as 

a legislativ function, but is a power confided in 

him by the ii- preme authority of the state; and in 

exercising this function, while he is not confined 

to rules of strict construction +e nevertheless 

must look to the Constitution for the authority to 

exercise such power. The principle here enunciated has been aptly put by the Supreme Court of IJ.linois. in the case of Field v. People, 3 Ill. 79, in 

discussing the question of the Governor’s veto 

power: ‘In deciding this question, recurrence must 

be had to the Constitution. That furnishes the only 

true rule by which the court can be governed. That 

is the character of the Governor’s authority. All 

the powers delegated to him’by or in accordance 

with that instrument he is entitled to’@ercise. and 

no others. The Constitution is a limitation upon 

the powers of the legislative department of the 

government. but it is to be regarded as a grant of 

powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any 

authority or power. except such as clearly granted 

by the Constitution. Upon the principle of our government that the’sovereign power of the state resides 

in the people, and that only such powers as they have 

delegated to their functionaries can be exercised, 

where a claim of power is advanced by the executive, 

r the question is not whether the power in question has 

been granted to the people, but whether it has been 

granted to the executive; and, if the grant cannot be 

shown, he has no title to the exercise of the power.’ 

The Governor of Arieona. under act of Congress passed July !9. 1876 (19 Stat. 91, C. 212). was authorized 

to exercise the veto power to the extent that, if he does 

not approve a bill, he shall return it. together with his 

objections, to t&e house in which it originated. No 

authority was given the Governor by that act to disap- 
277 

Hon. Allan Shivers, Page 7, V-1196 

prove a bill in part. Exercising /the power delegated to him as above stated, the Governor of Arixona returned an appropriation bill to the house in 

which it originated with his signature, and added 

after his signature that he had approved the bill 

except as to subdivision 17 of section]l. His veto 

thus expressed was by the Legislature sustained; 

but the Supreme Court of Arizona held that the bill 

as a whole became a law. as the Governor had no 

authority to veto a single item of an appropriation 

bill. Porter v. Hughes, 4 Ark. 1. 32 Pac. 165. 

“The executive. while in the exercise of the 

veto power. is exercising a legislative function, yet 

the authorities are uniform in holding that he has no 

power to construct legislation. His authority is purely negative. This principle was clearly laid down by 

Chief Justice Stayton in Pickle v. McCall, 86 Tax. 

223. 24 SW. 268. in the following paragraph: ‘The 

Legislature has the affirmative power to enact laws. 

while the executive has only a negative power, by the 

constitutional exercise of which he may defeat the 

will of the majority of both houses of the Legislature; 

but this power has no effect when, upon his veto, twothirds of the members present in each house declare 

that a bill shall become a law.’ 

“Applying the rules above-laid down, we find 

the Governor has power to disapprove any bill passed by both houses-of the Legislature, and that, when 

he disapproves any bill, the same shall not become 

a law, unless reconsidered and approved by two-thirds 

of the members of both houses. Ifthe Legislature has 

adjourned at the time the Governor disapproves any 

bill. the same fails to become a law. If a bill passed 

by the Legislature contains several items of appropriation, the Governor is authorized to object to one or 

more of such items, and such item or items so objected to shall not become, a part of the law, unless the 

Legislature be in session and such item or items objected to be reconsidered and approved by Iwo-thirds 

of the members of both houses. The executive veto 

power is to be found alone in section 14.‘art. 4. of & 

Constitution of this state. Bv that sects * - 

i’ 
278 

Hon. Allan Shivers, Page 8, V-1196 

thorized to disapprove any bill in whole, or, if a 

bill contains several items of appropriation, he 

is authorized to object to one or more of such 

items. Nowhere in the Constitution is the authority 

given the Governor to approve in part and disapprove 

in part a bill. The only additional authority to disapI a bill in whole is that ~giveu to object to an 

item or items, where a bill contains several items 

of aourouriation. It follows conclusivelv that where 

the veto power is attempted to be exercised to object to a paragraph or portion of a bill other than 

au item or items, or to language qualifying an aRpropriation or directing the method of its uses, he 

exceeds the constitutional authority vested in him. 

and his objection to such paragraph, or portion of 

a bill, or language qualifying an appropriation, or 

directing the method of its use, becomes noneffective. 

So that we’are constrained to hold that that portion 

of the veto. message- contained in subdivision 3 

of the statement of objections appended to the appropriation bill and filed in the office of the Secretary of State /dealing with the rider/ was unauthorized, and therefore noneffective, and the paragraph so 

attempted to be stricken out will remain as a part 

of the appropriation bill. While the paragraph may 

not harmonize with the appropriation for the Attorney General’s department as modified by the veto 

message of the Governor, yet the language of this 

clause must in its application adjust itself to the 

changed condition of the appropriation to which it 

refers.” (140 S.W. at 411-41L) 

Concerning the authority of the Governor to veto the 

rider, Justice Ramsey said: 
Hon. Allan Shivers, Page 9, V-l 196 

was vetoed, suffer destruction at the Governor’s 

hands. In other words, that that was legislation, 

and, if it should be held that his veto was effective 

to strike down any one of the amounts of $41,580,. 

that it must be limited to that single item, and 

could have none other or different effect.” (140 

S.W. at 422-423.) 

Another leading case on the authority of the Governor to veto parts of an appropriation bill is Commonwealth v. 

Dodson, 176 Va. 281, 11 S.E.2d 120 (1940). Citing Fulmore v. 

Lane, supra, with approval, the Court reviewed some of the 

other cases on this question as follows: 

“First we are to determine the power given 

to the Governor by this excerpt from our Constitution, said section 76, which declares that ‘the 

governor shall have the power to veto any particular item or items of an appropriation bill, but the 

veto shall not affect the item or items to which he 

does not object.’ 

“We are dealing with an appropriation bill. 

The Governor is given power to veto any item or 

items thereof, subject to this limitation noted: 

‘* * * but the veto shall not affect the item or items 

to which he does not object.’ 

I‘ 

. . . . 

“If the Commonwealth were to determine 

to erect a library building and were to set apart 

a certain sum for structural steel, another for a 

heating plant, etc., and were finally to provide for 

a supervising architect at a stated salary, plainly 

the Governor could not by veto, dispense with the 

services of an architect, although the sum to be 

paid for his services might, in a limited sense, 

be regarded as an item. That term, as used in the 

Constitution, refers to something which may be taken out of a bill without affecting its other purposes 

or provisions. It is something which can be lifted 

bodily from it rather than cut out. No damage can 
280 

Hon. Allan Shivers, Page 10, V-1196 

be done to the surrounding legislative tissue, nor 

should any scar tissue result therefrom. 

“What does ‘item’ mean? It has been defined 

in Juan Bengson v. Secretary of Justice & Insular 

Auditor, 299 U.S. 410, 57 S. Ct. 252, 253, 81 L. Ed. 

312, 313. 

“The Philippine Retirement Gratuity Law 

provided for the payment of a retirement gratuity 

to certain officers of the insular government, including justices of the peace, among whom was the 

petitioner. This was to be paid out of any fund in 

the insular treasury not otherwise appropriated. 

That act was approved by the Governor-General, 

who, however, vetoed this provision: 

” ‘The Justices of the Peace who must relinquish office during the year nineteen hundred and 

thirty-three in accordance with the provisions of 

Act numbered Thirty-eight hundred and ninety-nine, 

shall also be entitled to the gratuities provided for 

in this Act.’ 

“The Organic Act conferred upon the GovernorGeneral ordinary veto powers, but in it was this provision: 

* ‘The Governor General shall have the power 

to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items 

to which he does not object.’ 48 U.S.C.A. fi 1052. 

“The language of our Constitution, as we have 

‘seen, is that the ‘veto shall not affect the item or items 

to which he does not object.’ Indeed, one provision 

seems to have been copied from the other. 

‘!The court itself tells us what it had,to decide: 

‘Did the bill which became Act 4051 constitute an appropriation bill; and, if so, was section 7 De section 

vetoe$, within the meaning of the foregoing provision 

of the Organic Act, an item of such bill? ’ 
Hon. Allan Shivers, Page 11, V-1196 

, 

“The court said that it was not an appropriation 

bill. It also said: 

” ‘It follows conclusively that where the veto 

power is attempted to be exercised to object to a 

paragraph or portion of a bill other than an item 

or items, or to language qualifying an appropriation 

or directing the method of its uses, he exceeds the 

constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or 

language qualifying an appropriation, or directing 

the method of its use, becomes non-effective.’ 

Y 

. . . . 

” . 

. . . section 7 is not an “item” within the 

meaning of section 19 of the Organic Act. An item 

of an appropriation bill obviously means an item 

which in itself is a specific appropriation Of money, 

not some general provision of law which happens to 

be nut into an annrooriation bill. Provisions nranting power to the executive to veto an item or items 

of an appropriation bill are to be found, in various 

forms of expression, in many of the state constitutions. 

Their object is to safeguard the public treasury against 

the pernicious effect of what is called ‘log-rolling”-- 

by which, in order to secure the requisite majority to 

carry necessary and proper items of appropriation, unnecessary or even indefensible items are sometimes 

included.’ 

“In support of its conclusions it cites with approval State v. Holder, 76 Miss. 158, 180, 181, 23 SO. 

643, 644, and calls attention to the fact that the Constitution of Mississippi gave to the Governor power 

to veto parts of any appropriation bill. ‘Parts’ is a 

word capable of wider application than ‘item’ or 

‘items,’ yet it did not give to the Governor power to 

veto an objectionable provision. In that case, the 

Mississippi Legislature made an appropriation for 

the Industrial Institute & College, setting apart certain sums for certain appropriate purpos,es but declared that payments to officers and employees should 

not be available unless the power of approval should be 
282 

Hon. Allan Shivers, Page 12, V-1196 

conferred uponthe:president by the board of trustees. 

This provision, as to the president, the Governor 

vetoed. The court said that he had no Dower to transform a contingent or conditional appropriation into 

an absolute one and that the power given ‘was not designed to enable the governor to veto objectional legislation in appropriation bills,’ and that this power applied to parts so separable and complete within themselves that they may be ‘taken from the bill without affecting others. 

“The Bengzon case, though late (decided January 

4, 1937), is now leading. It is a decision of all the 

justices who sat. Mr. Justice Stone did not participate. 

As reported in 81 Law Edition, there was called to its 

attention many or most of the cases which had considered the issues then presented. 

“It is contended that much that was said in the 

Bengzon case was but dicta, since the bill itself was 

not an appropriation bill; and the same criticism is 

directed to State v. Holder, supra. It may readily be 

conceded that the bill presented to the Governor- p 

General was not an appropriation bill and that the court 

with propriety might have stopped when that was ascertained, but it did not, and it tells us in terms what 

was before it. Of this, it was the best judge. 

” 

. . . . 

“Even if it be dicta, Mr. Justice Sutherland has 

told us what the Supreme Court thought, and that was 

that the veto was unauthorized because the bill was 

not an appropriation bill and because that stricken out 

was not an item. I 

“In re Opinion of the Justices, 294 Mass. 616, 

2 N.E.2d 789. 790, Courts 208. States 131, Statutes 33, 

the court was asked to construe this constitutional 

provision, Const. amend. art. 63, 8 5: ‘The governor 

may disapprove or reduce items or parts of items 

in any bill appropriating money.’ It said that ‘items’ 

or ‘parts of items’ referred to separate fiscal units 

and that no power was given to change the terms of 
Hon. Allan Shivers, Page 13, V-l 196 

an appropriation except by reducing the amount 

thereof; that a condition attached to an appropriation was not an item and that ‘words or phrases are 

not “items or parts of items.““‘“(ll S.E.2d at 124- 

126:) 

The Court then said: 

“We think it is plain that the veto power does 

not carry with it power to strike out conditions or 

restrictions. That would be legislation. Plainly, 

money devoted to one purpose can not be used for 

another, and it is equally plain that power to impose 

conditions before it can become available is legislation. 

“An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose. It 

is something different from a provision or condition, 

and where conditions are attached. they must be observed; where none araattached, none may be added.” 

(11 S,E.2d at 127.) 

In Fairfield v. Foster, 25 Aria. 146, 214 Pac. 319, 322 

(1923). the Court approved the holding in Fulmore v. Lane, supra, 

and in regard to the question here presented said: 

“Now it is very true, as stated in State v. 

Holder, 76 Miss. 158, 23 South. 643, that the executive cannot veto a condition or proviso of an appropriation, while allowing the appropriation itself 

to stand. That would be affirmative legislation 

without even the concurrence of the Legislature. 

” 

. . . 

In Bengzon v. Secretary of Justice, 299 U.S. 410 (1937), 

discussed in Commonwealth v. Dodson, supra, Fulmore v. Lane, 

supra, is cited and quoted with approval. 

said: 

In 59 C.J. 583, Statutes, Sec. 114, the following is 

u 

. . . The disapproval of matter which is incidental to the appropriation and an inseparable part of 
284 

Hon. Allan Shivers, Page 14, V-l 196 

an item is without effect, as where an attempt 

is made to veto a condition of an appropriation 

and approve the appropriation without the condition imposed.” 

See also, Annotation, 35 A.L.R. 600; Annotation, 99 

A.L.R. 1277; 42 Am. Jur. 753-754, Public Funds, Sec. 51; Att’y 

Gen. Op. O-3685 (1941). 

For an interesting discussion of the history of the 

veto power and of the cases dealing with the power of the executive to split an item of an appropriation bill, see 4 Tex. Law 

Rev. 182 (1926). 

From the above cases and authorities, the following 

conclusions may be drawn with respect to the authority of the 

Governor to veto a rider in an appropriation bill: 

a. The Governor has the power to veto only 

“items” of an appropriation bill. 

b. An “item” is a specific appropriation of 

money and does not include general provisions, 

conditions, limitations, and restrictions put into an 

appropriation bill in the form of riders. 

c. The Governor has no authority to veto 

a rider in an appropriation bill unless it is in itself an “item,” that is, a provision containing a 

specific appropriation of money. 

d. A veto by the Governor of any provipions 

of an appropriation bill which are incidental to the 

appropriation and an inseparable part of an item is 

beyond the constitutional authority delegated to him 

in Article IV, Sec. 14, Constitution of Texas, and is 

therefore ineffectual. 

By your second question you ask if each of the riders 

contained in House Bill 426 is constitutional or authorized by 

statute. you then ask as to each rider our advice for the guidance of the departments and agencies concerned. Due to the 

limited time we have had in which to study the questions presented by you, and due to the fact that you must act on House Bill 426 
285 

Hon. Allan Shivers, Page 15, V-1196 

on or before June 28, 1951, it is impossible to pass upon the constitutionality of the 235 riders contained in the bill or give our interpretation of the same. Since, in answer to your first question, 

we have concluded that the Governor has no authority to veto nonappropriating riders in the general appropriation bill, it would appear that answers to your second and third questions are not necessary at of this time -- that is, within the time in which you must 

act on House Bill 426. 

We trust that you will understand and appreciate the 

position in which we find ourselves with respect to your se’cond 

and third questions. They actually constitute 470 separate questions, each of which will require study and conclusions which 

could not possibly be completed within the time allowed. 

SUMMARY 

,’ ‘~- The Governor has the power to veto only “items” 

of an appropriation bill. An “item” is a specific appropriation of money and does not include general provisions, conditions, limitations, and restrictions put into 

an appropriation bill in the form of riders. The Governor has no authority to veto a rider in an appropriation 

bill unless it is in itself an -item,” that is, a provision 

containing a specific appropriation of money. A veto by 

the Governor of any provisions of an appropriation bill 

which are incidental to the appropriation and an inseparable part of an “item” is beyond the constitutional authority delegated to him in Article IV, Sec. 14, Constitution of Texas. 

Yours very truly, 

APPROVED: 

Everett Hutchinson 

Executive Assistant 

Charles D. Mathews 

First Assistant 

E J/JPL/mf 

PRICE DANIEL 

Attorney General 

d-$L,:&&J 

E. Jacobson