### TEEATFORNEY 

# GENEECAL OF TEXAS

June 28, 1951
Hon. Allan Shivers Governor of Texas Austin, Texas

Dear Governor: Opinion No. V-l 196
Re: Authority ofthe Governor to veto separate riders in the general appropriation bill and related questions with respect to House Bill 

### 426.
Your request for an opinion ofthis 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 ofbenefit to the.agency or department affected in order that they may be properly guided.”

‘The veto power ofthe 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 ofcertain paragraphs or portions of a’bill and approve the remainder. Fulmore v. Lane, 104Tex. 499, 140 S.W. 405 (1911); Annotation, 35A.L.R. 600, and cases cited therein.

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

“Sec. 14. Every bill which shall have passed both houses ofthe Legislature shall be presented toHon. Allan Shivers, Page 2. V-l 196

the Governor for his approval. Ifhe approve he shall sign it; but if he disapprove it, he shall return it, with his objections. to the House inwhich 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 topass the bill, it shall be sent, with the objections, tothe other House, by which likewise it shall be reconsidered; and, if approved by two-thirds ofthe members ofthat House, it shall become alaw; but in such cases the votes **of** both Houses shall be determined by yeas and nays, and the names ofthe members voting .for and against the bill shall be entered onthejournal of each House respectively. If any bill shall not be returned by the Governor with his objections ,w%thinten,days (Sundays excepted) **after** it shali have been presented to him, the same shall be alaw, ‘inlike manner as if he had signed it, unless the Legislature,, by-its adjournment. prevent its return, in which case it shall be alaw, unless he shaEfile.the s.amei with his ob-
_.. jections, in the office-of the ,Secretary ofState and. give notice thereof by public proclamation within twenty days after such adj,ournment. If any bill presented tothe **Governor** Fontains several items of appropriation he may object to one or more of such items, and approve the other portion ofthe bill. Insuch case he shall append tothe bill, at the time of signing it, astatement ofthe items to which he objects, and no item so objected to shall take effect. Ifthe Legislature be in session, he shall transmit tothe 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 ofthe members present of each House, the same shall be part ofthe law, notwithstanding the objections ofthe Governor. If any such bill, containing several items of appropriation, not having been presented tothe Governor ten days (Sundays excepted) prior to adjournment, be inthe hands ofthe Governor atthe time of adjournment, he shall have twenty days from such adjournmentHon. Allan Shivers, Page 3.V-1196

within which to file objections to any items thereof and make proclamation ofthe same, and such item or items shall nottake effect.” (Emphasis added throughout.)
Fulmore v. Lane, 104 Tex. 499, 140S.W. 405 (1911). is the only Texas case onthe authority ofthe Governor to veto a rider in an appropriation bill; and is recognized as one ofthe leading cases onthis subject. The following excerpt from the opinion of Justice Ramsey in that case vividly illustrates the action ofthe Governor in vetoing apart ofthe appropriation bill there involved : U‘Attorney General’s Department.
For the Years Ending-- August 31,1912 -August 31.1913.
For the eupport and maintenance ofthe’ Attorney General’s department. in-’ eluding postage, stationery, telegrams, telephones, furniture, repairs, express, typewriters and fittings, contingent expenses, costs in civil cases- inwhich the. State of Texas **or** any head **of** adepartment is aparty; 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 tothe business ofthe state elsewhere than in the city ofAustin; for depositions and procuring evidence and documents tobe used in civil suits or contemplated suits wherein the state is aparty; for law books and periodicals; for the payment of any and all expenses incident to and connected with the administration ofthe 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 ofthe 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 ofthe salaries and compensation ofhis assistants and employ& and other help deemed by the Attorney General tobe necessary to carry onthework of the Attorney General’s department, there is hereby appropriatedtobe expended during the two fiscal years ending August 31st, 1912, and August 31st, 1913. tobe paid by the Treasurer onwarrants drawn by the Comptroller upon vouchers approved by the Attorney General ,.......... $41.580.00 -$4&W&W

tofthe above it e purpose ofpay0.00 per annum exceed $2.000.00 per annum, and for the pu the salaries ofthe 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 ofthe department, not to exceed horn shall be chief clerk and bookkee ndthere may be nded out ofthe above item of a iation a sum notto alaries of such stenograp that no sten hit clerk shall receive more

ere may be employed one porter w eitem of appropriation asalary of ere may be expended out ofthe above item or postage, stationery, telegrams, telepho repairs, express. typewriters, and fittings and enses so much thereof as may be necessary, not to ex

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Hon. Allan Shivers, Page 5, V-11.96

sum of $1.350.09 per annum. The remainder ofthe of appropriation, or so much thereof as may be de

ses inwhich the state of Texas or any aparty; for the actual traveling e by the Attorney General, or fan iving attention tothe busines e city ofAustin; for de curing evidence documents tobe use contemplated su erein the state i ;for law books and periodicals; a any and all laws ofthe 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 ofthe anti-trust and co s and for the employment of special counsel and o enthe same may be deemed necessary by the A yided that the head of

-‘

. said department sh the absences ofthe **var** ether from sickness, vacation or 0 ecord ofsuch 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 tothe items of’“‘eighty+hree thousand and **‘ one**  hundred and sixty ($83,160.00) dollars” and ‘$41.580.00,” the Court held that .t.heGovernor had no authority to veto the rider shown above. Each member ofthe Court wrote a separate opinion, but all agreed on the lack of authority inthe Governor toveto the rider. Inthe opinion of Justice Dibrell, the following is said:

“The authority ofthe Governor to veto the language ofthe 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 ofdefining the power ofthe executive in relation to the exercise ofthe veto privilege is, as suggested by Chief Justice Woods inthe case ofState vs. Holder, 76Miss. 177, 23South. 643, one ofdifficulty and delicacy. The veto power **of** the executive under our system of government is not inherent in such officer as alegislativ function, but is apower confided in him by the ii-preme authority ofthe state; and in exercising this function, while he is not confined to rules of strict construction +e nevertheless must look tothe Constitution for the authority to exercise such power. The principle here enunciated has been aptly put by the Supreme Court of IJ.linois. inthe case of Field v. People, 3Ill. 79, in discussing the question ofthe Governor’s veto power: ‘In deciding this question, recurrence must be had tothe Constitution. That furnishes the only true rule by which the court can be governed. That is the character ofthe 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 alimitation upon the powers ofthe legislative department ofthe government. but it is tobe regarded as a grant of powers tothe other departments. Neither the executive nor thejudiciary, 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 ofthe state resides in the people, and that only such powers as they have delegated totheir functionaries can be exercised, where a claim ofpower is advanced by the executive,
rthe question is not whether the power in question has been granted tothe people, but whether it has been granted tothe executive; and, if the grant cannot be shown, he has no title tothe exercise ofthe power.’ The Governor ofArieona. under act of Congress passed July !9. 1876 (19 Stat. 91, C. 212). was authorized to exercise the veto power tothe extent that, if he does not approve abill, he shall return it. together with his objections, tot&ehouse in which it originated. No authority was given the Governor by that act to disap-

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Hon. Allan Shivers, Page 7, V-1196

prove abill in part. Exercising /thepower delegated tohim as above stated, the Governor ofArixona 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 17of section]l. His veto thus expressed was by the Legislature sustained; but the Supreme Court ofArizona held that the bill as awhole became a law. as the Governor had no authority toveto asingle item of an appropriation bill. Porter v. Hughes, 4Ark. 1. 32Pac. 165.
“The executive. while in the exercise ofthe 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. 24SW. 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 ofwhich he may defeat the will ofthe majority ofboth houses ofthe Legislature; but this power has no effect when, upon his veto, twothirds ofthe members present in each house declare that abill shall become alaw.’ “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 alaw, unless reconsidered and approved by two-thirds ofthe members ofboth houses. Ifthe Legislature has adjourned at the time the Governor disapproves any bill. the same fails tobecome alaw. If abill passed by the Legislature contains several items of appropriation, the Governor is authorized to object to one or more ofsuch items, and such item or items so objectedtoshall not become, apart ofthe law, unless the Legislature be in session and such item or items objected tobe reconsidered and approved by Iwo-thirds ofthe members ofboth houses. The executive veto power is tobe found alone in section 14.‘art. 4. of& Constitution ofthis state. Bv that sects * - i’

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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 abill. The only additional authority to disapI abill inwhole is that ~giveuto object to an item or items, where abill contains several items of aourouriation. Itfollows conclusivelv that where the veto power is attempted tobe exercised to object to aparagraph or portion of abill other than au item or items, or to language qualifying an aRpropriation or directing the method ofits uses, he exceeds the constitutional authority vested in him. and his objection to such paragraph, or portion of abill, or language qualifying an appropriation, or directing the method ofits use, becomes noneffective. So that we’are constrained to hold that that portion ofthe veto. message- contained in subdivision 3 ofthe statement of objections appended tothe appropriation bill and filed in the office ofthe Secretary ofState /dealing with the rider/ was unauthorized, and therefore noneffective, and the paragraph so attempted tobe stricken outwill remain as apart ofthe appropriation bill. While the paragraph may not harmonize with the appropriation for the Attorney General’s department as modified by the veto message ofthe Governor, yet the language ofthis clause must in its application adjust itself tothe changed condition ofthe appropriation towhich it refers.” (140 S.W. at 411-41L)
Concerning the authority ofthe Governor toveto the rider, Justice Ramsey said:Hon. Allan Shivers, Page 9, V-l 196

was vetoed, suffer destruction atthe 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 ofthe amounts of $41,580,. that it must be limited tothat single item, and could have none other or different effect.” (140 S.W. at 422-423.)
Another leading case on the authority ofthe Governor toveto parts of an appropriation bill is Commonwealth v. Dodson, 176 Va. 281, 11S.E.2d 120 (1940). Citing Fulmore v. Lane, supra, with approval, the Court reviewed some ofthe other cases onthis 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 toveto any particular item or items of an appropriation bill, but the veto shall not affect the item or items towhich he does not object.’
“We are dealing with an appropriation bill. The Governor is given power toveto any item or items thereof, subject tothis limitation noted:

‘* * * but the veto shall not affect the item or items towhich 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 astated salary, plainly the Governor could not by veto, dispense with the services of an architect, although the sum tobe 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 abill without affecting its other purposes or provisions. It is something which can be lifted bodily from it rather than cut out. No damage can

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Hon. Allan Shivers, Page 10, V-1196

be done tothe surrounding legislative tissue, nor should any scar tissue result therefrom.
“What does ‘item’ mean? Ithas been defined in Juan Bengson v. Secretary of Justice &Insular Auditor, 299 U.S. 410, 57S. Ct. 252, 253, 81 L. Ed. 312, 313.
“The Philippine Retirement Gratuity Law provided for the payment of a retirement gratuity to certain officers ofthe insular government, including justices ofthe peace, among whom was the petitioner. This was tobe 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 ofthe 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 tothe gratuities provided for in this Act.’
“The Organic Act conferred upon the GovernorGeneral ordinary veto powers, but in itwas this provision:
* ‘The Governor General shall have the power toveto any particular item or items of an appropriation bill, but the veto shall not affect the item or items towhich 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 towhich 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 7De section vetoe$, within the meaning ofthe foregoing provision ofthe Organic Act, an item of such bill? ’Hon. Allan Shivers, Page 11, V-1196

, “The court said that itwas not an appropriation

bill. It also said:
” ‘It follows conclusively that where the veto power is attempted tobe exercised to object to a paragraph or portion of abill other than an item or items, or tolanguage 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 abill, or language qualifying an appropriation, or directing the method of its use, becomes non-effective.’
Y

. . . .

”

.

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

### 19ofthe Organic Act. An item of an appropriation bill obviously means an item which in itself is a specific appropriation Ofmoney, not some general provision oflaw which happens to be nut into an annrooriation bill. Provisions nranting power to the executive toveto an item or items of an appropriation bill are to be found, in various forms of expression, in many ofthe state constitutions. Their object is to safeguard the public treasury against the pernicious effect ofwhat 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, 76Miss. 158, 180, 181, 23SO. 643, 644, and calls attention tothe fact that the Constitution of Mississippi gave tothe Governor power to veto parts of any appropriation bill. ‘Parts’ is a word capable ofwider application than ‘item’ or

‘items,’ yet it did not give tothe Governor power to veto an objectionable provision. Inthat 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 oftrustees. This provision, as tothe president, the Governor vetoed. The court said that he had no Dower totransform 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 toparts so separable and complete within themselves that they may be ‘taken from thebill without affecting others.
“The Bengzon case, though late (decided January 4, 1937), is now leading. Itis adecision 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 ofthe cases which had consideredthe issues then presented.
“It is contended that much that was said inthe 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. Itmay readily be conceded that the bill presented tothe 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, itwas the best judge.

”

. . . . “Even if itbe 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 ofthe Justices, 294 Mass. 616, 2N.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.’ Itsaid that ‘items’ or ‘parts of items’ referred to separate fiscal units and that no power was given to change the terms ofHon. 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 ofitems.““‘“(ll S.E.2d at 124- 126:)
The Court then said:
“We think it is plain that the veto power does not carry with itpower 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 ofmoney dedicated to a stated purpose. It is something different from aprovision 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, 25Aria. 146, 214 Pac. 319, 322 (1923). the Court approved the holding in Fulmore v. Lane, supra, and in regard tothe question here presented said:

“Now it is very true, as stated in State v. Holder, 76Miss. 158, 23South. 643, that the executive cannot veto acondition or proviso of an appropriation, while allowing the appropriation itself to stand. That would be affirmative legislation without even the concurrence ofthe 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 ofmatter which is incidental tothe appropriation and an inseparable part of

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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, 35A.L.R. 600; Annotation, 99 A.L.R. 1277; 42Am. Jur. 753-754, Public Funds, Sec. 51;Att’y Gen. Op. O-3685 (1941).

For an interesting discussion ofthe history ofthe veto power and ofthe cases dealing with the power ofthe executive to split an item of an appropriation bill, see 4Tex. Law Rev. 182 (1926).

From the above cases and authorities, the following conclusions may be drawn with respect to the authority ofthe 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 aspecific appropriation of money and does not include general provisions, conditions, limitations, and restrictions put into an appropriation bill inthe 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, aprovision containing a specific appropriation ofmoney. d. A veto by the Governor of any provipions of an appropriation bill which are incidental tothe 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 ofthe riders contained in House Bill 426 is constitutional or authorized by statute. you then ask as to each rider our advice for the guidance ofthe departments and agencies concerned. Due to the limited time we have had inwhich to study the questions presented by you, and due tothe fact that you must act onHouse Bill 426

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on or before June 28, 1951, it is impossible topass upon the constitutionality ofthe 235 riders contained in the bill or give our interpretation ofthe same. Since, in answer toyour first question, we have concluded that the Governor has no authority toveto nonappropriating riders in the general appropriation bill, itwould appear that answers toyour second and third questions are not necessary at ofthis time -- that is, within the time inwhich you must act onHouse Bill 426.

We trust that you will understand and appreciate the position inwhich we find ourselves with respect toyour se’cond and third questions. They actually constitute 470 separate questions, each ofwhich will require study and conclusions which could notpossibly be completed within the time allowed.
SUMMARY

,’‘~- The Governor has the power to veto only “items” of an appropriation bill. An “item” is aspecific appropriation ofmoney 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, aprovision containing a specific appropriation ofmoney. A veto by the Governor of any provisions of an appropriation bill which are incidental tothe 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
EJ/JPL/mf PRICE DANIEL Attorney General d-$L,:&&J E. Jacobson