# The Attorney General of Texas

MARK WHITE Attorney General
Supreme Court Building P. 0. Box 12546 Austin, TX. 76711. 2546 5121475~2501 Telex 9101674-1367 Teleccxier 512/475.0266

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An Equal Opportunity/ Affirmative Action Employer HonorableBob Bullock Comptrollerof PublicAccounts L.B.J. StateOffice Building Austin, Texas 78774 opinion No. w-498 I&: Effect of appropriations act rider limiting payment of plaintiff's attorney fees in suits against the Department of Corrections Dear Mr. Bullock:

You have requested our opinion regarding the effect of an appropriationsact rider limitingpayment of plaintiff'sattorney fees in suits against the Department of Corrections. House Bill No. 9, enacted in the second called sessionof the Sixty-seventhLegislature, Acts 1981, 67th Leg., 2d C.S., ch. 2, at 8, provides appropriations for various penal, adult correctional and criminal justice purposes. The statuteprovides, inpertinentpart: AN ACT relating to appropriations for the support of various departmentsof state government forpenal, adult correctional, and criminal justice purposes and for the conduct of elections and to appropriations for certain legal fees and court cost and expenses. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. In addition to sums previously appropriated, the following sums are appropriated from the general revenue fund to the Texas Department of Corrections for the period ending August 31, 1983: 1. a. Speedup of current projects, adapt

permanentbuildings for inmatehousing, and cunstruction of additional units/beds $39,710,000

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b. Three employeedorms 2.490.000 2. Security and staff excluding fringe benefits normallypaid from other funds 12.407.445 3. Transportationof inmates from jails677,146 4. Utilities, operating, and equipment costs for units on line prior to February, 1983 2,900,000 Total $5a,ia4,591 Less Current available funds 7,095,841 Item j -- appropriations -- Site acquisition, ArchitecturalDevelopment and Construction
TOTAL $51,088,750 It is the legislature'sintent thatnone of the funds appropriatedby Item 1 above shall be used to begin projects in such a way as would necessitate a request for an emergency appropriation from the 68th Legislature for the purpose of completing saidprojects.

. . . . SECTION 5. No state funds shallbe expended in excess of $10,000 for plaintiff's attorney's or attorneys' fees, court costs, or otherplaintiff's expenses in any one suitbrought against the Texas Department of Corrections or any employee thereof unless the expenditure of said funds is specifically authorized by an appropriations act of the legislaturewhich specifically identifies theplaintiff'sattorneyor attorneysand the suit or suitsbrought against the State of Texas or any board or agency thereof. You first ask whether section 5 of House Bill No. 9 constitutes an invalid attempt to amend general law by an appropriations act rider.

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Article III, section 35 of the Texas Constitutionhas long been construed to prohibit the enactment of general legislationwithin an appropriationsact. See Moore V. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Attorney General Opinion NW-389 (1981). A rider to an appropriations bill is valid, however, if its only effect is to "detail, limit or restrict the use of the funds thereinappropriated." Attorney General Opinions V-1253; V-1254 (1951). See also, Attorney General Opinions MW-51 (1979);M-1199 (1972). In our opinion, it is clear that section 5 merely imposesa limitationon the expenditureof appropriatedfunds. In Attorney General Opinion V-1253 (1951). the Attorney General held that a riderproviding that "nomotor-propelledpassengervehicle may be purchasedwith any of the funds appropriated in this article" was "a mere limitation and restriction upon the use of the money appropriated by House Bill No. 426." Likewise, section 5 of House Bill 9 merely places a limit of $10,000 on certain kinds of expenditures. So long as that is its only effect, it is not violative of article III, section 35. You also askwhether section 5 applies only to the appropriations made in House BillNo. 9 orwhether it also imposes its restrictionon the general appropriationsact previouslyenactedby the Sixty-seventh Legislature, House Bill No. 656, Acts 1981, 67th Leg. ch. 875, at 3333. The opinionswhich have construedarticle III, section 35 have reneatedlv sanctioned riders which detail. limit or restrict funds "therein appropriated." (Emphasisadded). Attorney General Opinions V-1253; V-1254 (1951). See Conley v. Daughters of the Republic, 156 S.W. 197 (Tex. 1913). House Bill No. 9 was enacted in a called session of the legislature. It does not purport to amend the general appropriationsbill enacted in the regular session, nor does it make any reference thereto, except to state, "in addition to sums previously appropriated." It constitutes legislation entirely separateand apart from the earlier enactment. Since, in our opinion, a ridermay restrict the expenditureof only those funds appropriated by the legislationcontaining the rider,we conclude that section 5 is not applicable to House Bill No. 656, enacted in the regular session of the Sixty-seventhLegislature. You have not inquired about, and we need not address any potential conflictbetween section 5 and federal legislation. But see 42 U.S.C. §1988. SUMMARY

Section 5 of House Bill No. 9, Acts 1981, Sixty-seventhLegislature, 2d C.S., chapter 2, at 8, is not an invalid attempt to amend general law

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by an appropriations act rider. It applies only to those appropriationsmade inHouse Bill No. 9.

Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorney General APPROVED: OPINION COMMITTRE SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa RichardMeyer JimMoellinger BruceYoungblood

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