. 

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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) 

On behalf of the Texas Higher Education Coordinating 

Board, you ask several questions relating to the construction and effect of a rider to the General Appropriations 

Bill enacted during the regular session of the 71st Legislature. The rider, found in article III of the Appropriations 

Act, provides the following: 

Sec. 31. TAMD SERVICES RETIREMENT AND 

BENEFITS. It is the intent of the Legislature that professional administrative, 

research and extension employees in higher 

education be eligible for the same retirement 

and benefit 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 of higher education. Section 830.101 of the 

Government Code, formerly section 36.101 of title llOB, 

V.T.C.S., establishes eligibility criteria for participation 

in the optional retirement system: 

(a) The governing board of each institution of higher education shall provide an 

opportunity to participate in the optional 

retirement program to all 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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Mr. Kenneth H. Ashworth - Page 2 (JM-1151) 

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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 and who was participating in the program on September 1, 

1987, is entitled to continue to participate 

in the program until the person terminates 

participation as provided by Section 

830.105(a). 

For the purposes of this section, a faculty member is a person employed by an institution of higher education on a 

full-time basis as 

(A) a member of the faculty whose duties 

include teaching or research: 

W an administrator responsible for 

teaching and research faculty; 

(C) a member of the administrative staff 

of the Texas Higher Education Coordinating 

Board: or 

(D) a professional 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 a position that is the subject of nationwide searches in the academic community. 

Gov't Code 5 821.001(8). 

Pursuant to section 830.101(b), the Coordinating Board 

has adopted a rule further defining the subgroups enumerated 

in section 821.001(8): 

In accordance with [Gov't Code 

5 821.001(8)], governing boards shall use any 

of the following definitions of a full-time 

faculty member for determining eligibility 

for participation in the 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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Mr. Kenneth H. Ashworth - Page 3 (JM-1151) 

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 is planning, organizing, and directing the activities of faculty as 

defined in paragraph (1) of this section. 

(3) A member of the administrative 

staff of the Texas Higher Education Coordinating Board shall mean a member 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 a position that is the subject 

of a nationwide search in the academic 

community. 

(4) A professional librarian, a president, a chancellor, a vice-president, a 

vice-chancellor shall mean a librarian 

with a degree 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 and professional 

positions that are generally and customarily recruited by advertising in national 

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 at a salary rate for 

faculty for the institution. 

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Mr. Kenneth H. Ashworth - Page 4 (JM-1151) 

(A) Administrative positions shall 

normally report to the office of a 

chancellor, president, vice-chancellor, 

vice-president, or dean. Incumbents of 

such positions 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 or the 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 the department or entity. 

(B) Professional positions shall 

include positions in nationally recognized fields which require advanced 

degrees and/or specialized professional 

or artistic training, experience, and 

achievement. These would include 

titles such as physicians, athletic 

coaches, engineers, and lawyers. 

19 T.A.C. § 1.6. 

The rider in question appears to expand the class of 

employees eligible to participate in the optional retirement 

program beyond that authorized by section 830.101. It is 

this apparent conflict in expressions of legislative intent 

that prompts your questions. 

You ask the following questions: 

1. Does [article III] section 31 of the 

appropriations bill or [section 830.101 

of the Government Code] govern eligibility for the Optional Retirement 

Program: or do they both apply? 

2. If only [section 830.101] applies, is 

section 31 considered moot? 

3. If only section 31 applies, is [section 

830.101] considered moot, and does each 

institution have authority to interpret 

the language of section 31? 
Mr. Kenneth H. Ashworth - Page 5 (JM-1151) 

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4. If both section 31 and [section 

830.101] apply, how is Optional Retirement Program eligibility to be determined when there are differences in the 

interpretation of the two provisions? 

5. Finally, since the caption for section 

31 reads 'TAMU SERVICES AND BENEFITS,' 

does this section apply only to Texas 

A & M University, or to all institutions, including universities, medical 

schools, technical institutes and junior/community colleges? 

A rider to an appropriations bill is scrutinized in 

light of article III, section 35, of the Texas Constitution, 

which provides the following in pertinent part: 

(a) No bill, (except general appropriations bills, which may embrace the various 

subjects and accounts, for and,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) (and cases cited therein). 

A valid rider may detail, limit, or restrict the use 

of appropriated funds. Attorney General Opinion V-1254 

(1951). A rider that qualifies or directs the use of appropriated funds or that is merely incidental to an appropriation is valid. Jessen Assoc., Inc., suora, at 599. So, 

too, is a rider that merely implements or is declarative of 

existing general law. See Attorney 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 also Attorney General Opinions MW-585 (1982); MW-51 

(1979). A rider that attempts to alter existing substantive 

law is a matter of general legislation that may not be 

included in a general appropriations act. Strake v. Court 

Of ADDealS, 704 S.W.2d 746 (Tex. 1986). Thus, a rider 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, 49 S.W. 578 (Tex. 1899); see 

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Mr. Kenneth H. Ashworth - Page 6 (JM-1151) 

&qg Attorney General Opinions JM-885 (1988); H-1158 (1978); 

M-1199 (1972); V-1254 (1951). 

With respect to the powers of state agencies, a rider 

to an appropriations bill may not confer a power on an 

agency that it does not possess under general law. See 

Attorney General Opinion C-447 (1965). A rider may not make 

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 a rider may 

set forth eligibility criteria in the 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," as that term is defined 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 in higher education" to participate in 

the optional retirement plan, as well as allow them to 

receive the same benefit options as faculty members. It 

gives no precise definition of the class of employees it 

covers, and may thus be susceptible to the kind of contradictory and open-ended interpretations you ask about in your 

third and fourth questions. Rider 31 may therefore be 

viewed as an attempt to amend section 830.101 of the 

Government Code. It may also be perceived as an attempt to 

dislodge the discretion 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. 

In answer to your first question, we conclude that 

section 830.101 of the Government Code governs eligibility 

to participate in the optional retirement program established by chapter 830 of the code. Rider 31 of article III of 

the General Appropriations Act for the 1989-1991 biennium is 

invalid to the extent it attempts to expand the class of 

employees eligible to participate in the optional retirement 

program beyond that authorized by section 830.101 and rules 

adopted pursuant to that section. Our response to your 

first question makes it unnecessary to address your remaining questions. 

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Mr. Kenneth H. Ashworth - Page 7 (~~-1151) 

SUMMARY 

Section 830.101 of the Government Code 

governs eligibility to participate in the 

optional retirement program established by 

chapter 830 of the Government Code. Rider 31 

of article III of the General Appropriations 

Act for the 1989-1991 biennium, Acts 1989, 

71st Leg., ch. 1263, at 5677, to the extent 

it attempts to expand the class of employees 

eligible to participate in the optional 

retirement program, violates article III, 

section 35, of the Texas Constitution and is 

therefore invalid. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant 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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