.

P Mr. Kenneth H.Ashworth

Commissioner Texas Higher Education Coordinating Board P. 0. Box 12788 Austin, Texas 78711

Dear Mr. Ashworth: March 27, 1990

Opinion No. JM-1151

Re: Eligibility for the Optional Retirement System, and related questions (RQ-1858)

Onbehalf of the Texas Higher Education Coordinating Board, you ask several questions relating to the construction and effect ofa rider to the General Appropriations Bill enacted during the regular session of the 71st Legislature. The rider, found inarticle III of theAppropriations Act, provides the following:

Sec. 31. TAMD SERVICES RETIREMENT AND BENEFITS. It isthe intent of the Legislature that professional administrative, research and extension employees in higher education be eligible forthe same retirement andbenefit options as faculty of higher education.

Acts 1989, 71st Leg., ch. 1263, at 5677.

Your concern centers around the eligibility of the employees described in the rider to participate in the optional retirement system offered by state-supported institutions ofhigher education. Section 830.101 of the Government Code, formerly section 36.101 of title llOB, V.T.C.S., establishes eligibility criteria forparticipation inthe optional retirement system:

(a) The governing board of each institution of higher education shall provide an opportunity to participate in the optional retirement program toall faculty members in the component institutions governed by the board.
(b) Eligibility to participate in the optional retirement program is subject to

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rules adopted by the Texas Higher Education Coordinating Board.
(c) A person who before September 1, 1987, had chosen to participate in the optional retirement program andwho was participating in the program on September 1, 1987, isentitled to continue to participate inthe program until theperson terminates participation as provided by Section 830.105(a).

For thepurposes ofthis section, a faculty member isaperson employed by an institution of higher education on a full-time basis as

(A) amember of the faculty whose duties include teaching or research:

W an administrator responsible for teaching and research faculty;
(C) amember of the administrative staff of the Texas Higher Education Coordinating Board: or
(D) aprofessional librarian, a president, a chancellor, a vice-president, a vice-chancellor, or other professional staff whose national mobility requirements are similar to those of faculty members and who fills aposition that isthe subject of nationwide searches inthe academic community.

Gov't Code 5821.001(8).

Pursuant to section 830.101(b), the Coordinating Board has adopted arule further defining the subgroups enumerated in section 821.001(8):

In accordance with [Gov't Code 5821.001(8)], governing boards shall use any of the following definitions ofa full-time faculty member for determining eligibility forparticipation inthe Optional Retirement Program.

(1) A member of the faculty whose duties include teaching or research shall
mean all persons whose specific assignments are made for the purpose of

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conducting instruction or research as a principal activity (or activities), and who hold titles of professor, associate professor, assistant professor, instructor, instructor [sic], lecturer, or equivalent faculty title.
(2) An administrator responsible for teaching and research faculty shall mean deans, directors, associate deans, assistant deans, chairpersons, or heads of academic departments if their principal activity isplanning, organizing, and directing the activities of faculty as defined inparagraph (1)of this section.
(3) A member of the administrative staff of the Texas Higher Education Coordinating Board shallmean amember of the Texas Higher Education Board staff whose assignment would require college graduation and prior experience in higher education or experience of such kind and amounts to provide a comparable background, whose national mobility requirements are similar to those of faculty and who fills aposition that isthe subject ofa nationwide search in the academic community.
(4) Aprofessional librarian, apresident, a chancellor, a vice-president, a vice-chancellor shall mean a librarian with adegree in library science, presidents, chancellors, vice-presidents, vice-chancellors, deputy chancellors, associate and assistant vice-presidents, associate and assistant vice-chancellors,
or the equivalent.
(5) Other professional staff person shall mean administrative andprofessional positions that are generally and customarily recruited byadvertising innational publications such as the Chronicle of Higher Education or in newsletters of national professional associations or at meetings of such associations. In addition, each administrative or professional position must be ata salary rate for faculty forthe institution.

Pm

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(A) Administrative positions shall normally report to the office of a chancellor, president, vice-chancellor, vice-president, ordean. Incumbents of suchpositions serve as director or other administrative head of a major department or budget entity. Incumbents of such positions must be:

(i) appointed by the governing board orthe chief administrative officer of the institution, or his/her delegate: and
(ii) responsible for the preparation and administration of the budget, policies, and programs, of thedepartment or entity.
(B) Professional positions shall include positions innationally recognized fields which require advanced degrees and/or specialized professional
orartistic training, experience, and achievement. These would include titles such as physicians, athletic coaches, engineers, and lawyers.

19T.A.C. § 1.6.

The rider in question appears to expand the class of employees eligible toparticipate inthe optional retirement program beyond that authorized by section 830.101. It is this apparent conflict inexpressions of legislative intent that prompts your questions.

You ask the following questions:

1. Does [article III] section 31of the appropriations bill or [section 830.101 of the Government Code] govern eligibility for the Optional Retirement Program: ordo they both apply?

2. Ifonly [section 830.101] applies, is section 31considered moot?

3. Ifonly section 31applies, is [section 830.101] considered moot, anddoes each institution have authority to interpret the language of section 31?Mr. Kenneth H.Ashworth -Page 5 (JM-1151)

P 4. If both section 31 and [section 830.101] apply, how isOptional Retirement Program eligibility tobe determined when there aredifferences inthe interpretation of the twoprovisions?

5. Finally, since the caption for section 31reads 'TAMUSERVICES AND BENEFITS,' does this section apply only to Texas A &MUniversity, orto all institutions, including universities, medical schools, technical institutes and junior/community colleges?

A rider toan appropriations bill isscrutinized in light ofarticle III, section 35,of the Texas Constitution, which provides the following inpertinent part:

(a) Nobill, (exceptgeneral appropriations bills, which may embrace the various subjects and accounts, forand,on account of which moneys are appropriated) shall contain
more than one subject.

The appropriation of funds from the state treasury is considered a single subject for the purposes of this provision, despite the apparent exception for general appropriations bills. Jessen Assoc.. Inc.v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975) (andcases cited therein).

Avalid rider may detail, limit, or restrict the use ofappropriated funds. Attorney General Opinion V-1254 (1951). A rider that qualifies ordirects the use of appropriated funds orthat is merely incidental to an appropriation isvalid. Jessen Assoc., Inc., suora, at 599. So, too, isarider thatmerely implements or isdeclarative of existing general law. SeeAttorney General Opinions JM-786 (1987):JM-343 (1985).

A rider may not, however, embody matters of general legislation. Moore v. Sheooard, 192 S.W.2d 559 (Tex. 1946);
see alsoAttorney General Opinions MW-585 (1982); MW-51 (1979). A rider that attempts toalter existing substantive law is amatter of general legislation thatmay not be included inageneral appropriations act. Strake v. Court Of **ADDealS,** 704 S.W.2d 746 (Tex. 1986). Thus, arider that amends, modifies, repeals, or conflicts with existing general law or that attempts to nullify a constitutional provision other than article III, section 35, is invalid. See id.; Linden v. Finley, 49S.W. 578 (Tex. 1899); see

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&qg Attorney General Opinions JM-885 (1988); H-1158 (1978); M-1199 (1972);V-1254 (1951).

With respect to thepowers of state agencies, a rider toan appropriations bill may not confer apower on an agency that itdoes notpossess under general law. See Attorney General Opinion C-447 (1965). A rider may notmake mandatory that which general law makes discretionary. Attorney General Opinions JM-167 (1984); MW-104 (1979); C-119 (1963). As to the eligibility of state employees for certain benefits, this office has concluded that arider may set forth eligibility criteria inthe absence of statutory criteria, but it may not establish criteria that conflict with general law. See Attorney General Opinion JM-407 (1985).

Section 830.101 of the Government Code provides only that "faculty members," asthat term isdefined in section 821.001, are eligible to participate in the optional retirement program, subject to rules adopted by the Texas Higher Education Coordinating Board. Rider 31, meanwhile, would permit "professional administrative, research, and extension employees inhigher education" toparticipate in the optional retirement plan, as well asallow them to receive the samebenefit options as faculty members. It gives noprecise definition of the class of employees it covers, andmay thus be susceptible to the kind of contradictory and open-ended interpretations you ask about inyour third and fourth questions. Rider 31 may therefore be viewed as an attempt to amend section 830.101 of the Government Code. Itmay also beperceived as anattempt to dislodge thediscretion conferred by section 830.101 upon the Texas Higher Education Coordinating Board to further refine the eligibility criteria. For these reasons, we conclude that rider 31 of article III of the General Appropriations Act for the 1989-1991 biennium embraces matters of general legislation and is therefore invalid under article III, section 35,of the Texas Constitution. Strake, sunra; Jessen Assoc., Inc.,w; Moore, suora.

Inanswer toyour first question, we conclude that section 830.101 of the Government Code governs eligibility toparticipate inthe optional retirement program establishedby chapter 830 of the code. Rider 31of article III of the General Appropriations Act forthe 1989-1991 biennium is invalid to the extent it attempts to expand the class of employees eligible toparticipate inthe optional retirement program beyond that authorized by section 830.101 and rules adopted pursuant to that section. Our response to your first question makes itunnecessary to address your remainingquestions.

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SUMMARY
Section 830.101 of the Government Code governs eligibility to participate in the optional retirement program established by chapter 830of the Government Code. Rider 31 ofarticle IIIof the General Appropriations Act for the 1989-1991 biennium, Acts 1989, 71st Leg., ch. 1263, at 5677, to the extent itattempts to expand the class of employees eligible to participate in the optional retirement program, violates article III, section 35, ofthe Texas Constitution and is therefore invalid.

JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Steve Aragon Assistant Attorney General

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