f-. 

April 6, 1988 

Nr. John Hille Opinion No. JR-885 

Acting Executive Director 

Texas National Guard Re: Construction of certain 

Armory Board riders to the current approP. 0. Box 5218 priation for the National 

Austin, Texas 78763 Guard Armory Board (RQ-1210) 

Dear Mr. Hille: 

You have requested an opinion construing a rider in 

the current appropriations act which provides that certain 

.expenditures from appropriations to the National Guard 

Armory Board say be made only through interagency 

contracts with the Adjutant General's Department. The 

relevant items of appropriation, found in the combined 

appropriation to the Adjutant General*s Department and 

National Guard Armory Board, are as follows: 

ADJUTANT GENERAL'S DEPARTMENT/NATIONAL GUARD 

ARMORY BOARD 

For the Years Ending 

August 31, August 31, 

19881989 

National Guard Armory Board: 

a. Administration and 

Support Services $ 2,820,441 $ 2,905,817 

b. Acquisition and 

Construction 4.670.710 

Total, Facilities 

Acquisition S 2.820.441 s 7.576.527 

Facilities Maintenance: 

a. National Guard 

Armory Board $ 2,594,467 $ 2,638,584 

b. Adjutant Generalas 

Department 2,020,513 2,020,513 

C. Utilities, National 

Guard Armory Board 2.366.709 2.366.709 

Total, Facilities 

Maintenance S 6.981.689 S 7.025.806 

p. 4323 
Mr. John Hille - Page 2 (JM-885) 

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., 

ch. 78, art. I, at 525. The rider you inquire about is 

rider 17, which provides as follows: 

17. Expenditures from Item 4.b. Acquisition and Construction, and Item 5-a. Facilities Maintenance, National Guard m-Y 

Board, be made [sic] only through interagency contracts with the Adjutant General's 

Department. In addition, from Item 4.a. 

Administration and Support Services, expenditures of $146,826 in fiscal year 1988 and 

$233,802 in fiscal year 1989 shall be made 

only through interagency contracts with the 

Adjutant General's Department. 

L at 525. you suggest that the Adjutant General's 

Department lacks authority to engage in construction 

and that it may not enter into a contract under the 

Interagency Cooperation Act to provide construction 

services to the National Guard Armory Board. V.T.C.S. 

art. 4413(32), 53. 

The validity of an appropriations act rider is determined by reference to article III, section 35, of the 

Texas Constitution, which provides in part: 

Sec. 35. (a) No bill, (scent aenera 

a&mm=-Uon bills. mav anbrace ths 

various subjects uunts. for ud on 

aunt of which monevs aremriated) 

shall contain more than one subject . 

(Emphasis added.) 

Tex. Const. art. III, 535. The Texas Supreme Court has 

explained the underlined language as follows: 

Despite the apparent exception for general 

appropriations bills, it has been held 

that they too must be limited to a single 

subject, which is the appropriation of funds 

to be paid from the State Treasury. a 

, 144 Tey. 537, 192 S.W.2d 5;; 

, 92 Tex. 451, 

Se?- Texas Attorney 

General Opinion No. V-1254 (1951). 

Jessen Associates. Inc. v. Bullock 531 S.W.2d 

An "item of approprjation" 

593, 600 

(Tex. 1975). sets aside or 

dedicates funds for a specified purpose, while a valid 

rider qualifies or directs the use of appropriated funds 

p. 4324 
, 

Mr. John Hille - Page 3 (Jh-885) 

- 

or is merely incidental to an appropriation. Jessen 

Associates. Inc. v. Bullock SDQI~ at 599. 

rider must be germane to th; appropriation 

To be valid, a 

of funds. Id. 

at 601. A rider attached to a general appropriation bill 

cannot adopt, repeal, modify, or amend an existing general 

law. Strake v. Court of Anneals, 704 S.W.2d 746 (Tex. 

1986); Moore V. hem rd 192 S.W.2d 559 (Tex. 

Lind n . Fin1 y 49 aS tr 

1946); 

GenezalVOpinioneVL1254 (195;). 

578 (Tex. 1899); Attorney 

you suggest that rider 17 is invalid on the ground 

that the Adjutant General's Department lacks authority to 

enter into an interagency contract to construct buildings 

for the Armory Board. you argue, in effect, that rider 17 

is invalid because it is inconsistent with provisions of 

general law governing the Adjut,ant General's Department, 

and it thus attempts to amend general law. 

The following provisions of the Interagency 

Cooperation Act are relevant to your argument: 

Sec. 3. Any state agency may enter into 

and perform a written agreement or contract 

with other agencies of the state for furnishing necessary and authorized special or 

technical services, including the services 

of employees, the services of materials, or 

the services of equipment. . . . Provided, 

however, nothing herein shall authorize any 

agency to construct any highway, street, 

road, or other building or structure for any 

other agency, except as otherwise specifically authorized by existing law. . . . 

. . . . 

Sec. 5. No agreement or contract may be 

entered into or performed which will require 

or permit an agency of the State to exceed 

its constitutional or statutory duties and 

responsibilities, or the limitations of its 

appropriated funds. 

V.T.C.S. art. 4413(32), §§3, 5. 

You point out that the Adjutant General's Department 

has no express authority to construct any building. The 

National Guard Armory Board, in contrast, was established 

to acquire sites and build armories to house the Texas 

National Guard and its equipment, and to provide a means 

of financing the construction of armories. Texas National 

p. 4325 
Mr. John Hille - Page 4 @M-885) 

Guard AzHQrv Board v. McGraw, 126 S.W.Zd 627 (Tex. 1939); 

S&Z Texas Public Buildina Authoritv v. Mattox, 686 S.W.2d 

924 (Tex. 1985). The Armory Board 

is a public authority and a body politic and 

corporate and has all powers necessary for 

the acquisition, construction, rental, 

control, maintenance, and operation of Texas 

National Guard or Texas State Guard armories, 

including all property and equipment necessary or useful in connection with the 

armories. 

Gov't Code 5435.013. It may issue bonds to acquire 

building sites or to construct, remodel, 

buildings and may 

equip, 

lease buildings to 

or repair 

the Adjutant 

General's Department. Gov't Code §§431.030, 435.023, 

435.041(a).. 

This brief summary of important provisions governing 

the Armory Board shows, its close connection with the 

Adjutant General's Department. In addition, the Armory 

Board is composed of three senior officers of the Texas 

National Guard and three members of the general public who 

are appointed by the governor with the advice and consent 

of the Senate. Gov't Code S435.004. 

Although the Armory Board ha& 

construct buildings for 

express power to 

the National Guard, it does not 

necessarily have exclusive power over construction. The 

adjutant general has broad powers which, in our opinion, 

include implied authority to build, maintain, and repair 

buildings necessary to carry out his responsibilities. 

He controls the military department of the state, which 

includes the Texas National Guard and the the Texas 

State Guard. Gov't Code 55431.022, 431.001(3)(4). The 

adjutant general is subordinate only to the governor, who 

is commander-in-chief of the state military forces. Gov't 

Code 0431.002. He is directed by statute to 

perform for the state as near as practicable 

the duties that pertain to the chiefs of 

staff of the amy and air force and the 

secretaries of the military services, under 

regulations and customs of the United States 

armed forces. . . . 

Gov't Code 5431.029(2). Federal law provides that the 

Secretary of the Army 

p. 4326 
Mr. John Hille - Page 5 (JM-885) 

is responsible for, and has the authority 

necessary to conduct, all affairs of the 

Department of the Amy, including the 

following functions: 

I:; 

(7) 

(8) (9) 

I::; 

(12) 

Recruiting. 

Organizing. 

Supplying. 

Equipping (including research and 

development). 

Training. 

Servicing. 

Mobilizing. 

Demobilizing. 

Administering (including the 

morale and welfare of personnel). 

Maintaining. 

The construction, outfitting, and 

repair of military equipment. 

The construction. maintenance. and . . renair of buildinas. structures, 

and utjJ,j&&g and the acquisition 

of real property and interests in 

real property necessary to carry 

out the responsibilities specified 

in this section. (Emphasis added.) 

10 U.S.C. 53013. Section 431.029 of the Government Code, 

read together with section 3013 of title 10, United States 

Code, gives the Adjutant General some authority to build, 

maintain and repair buildings as necessary to carry out 

his duties. Moreover, the Adjutant General has authority 

to "employ clerks, employees, and Jaborerg as necessary to 

carry on the operations of the department." (Emphasis 

added. ) Gov't Code 8431.028. The ReDOrt to the Sunset 

AdvisoN Commission by the Adjutant General's Department 

indicated that the department had responsibility to see 

that facilities to house and train the army and air guard 

units were constructed and maintained in SeNicable 

condition. Adjutant General's Department, ReDOrt to the 

Sunset AdvisoN Commission at 2. The department's annual 

report for 1987 described the responsibilities of its 

Directorate of Facilities Engineering as the development, 

acquisition, construction, maintenance and operation of 

facilities for the Texas Army National Guard. Ad jutant 

General's Department of Texas, Annual ReDOrts, at 22-23. 

Construction projects included a warehouse, a troop 

medical clinic, and an armory. Id. at 42. Texas National 

Guard engineering units performed some of the construction 

and maintenance work. Id. at 23. 

p. 4327 
Mr. John Hille - Page 6 (JW-885) 

The Adjutant General#s Department has 

authority to construct 

implied 

and maintain buildings when 

necessary to carry out its 

Rider 17 does 

statutory responsibilities. 

not confer general law powers on the 

Adjutant General's Department, but instead recognizes that 

it has authority to provide construction services. Nor 

does this rider attempt to confer upon the Adjutant 

General's Department the Armory Board's discretion to 

decide what construction and repair projects to undertake. 

The rider contemplates that the Armory Board will contract 

with the Adjutant General's Department, instead of a 

private construction company, for the supervision of 

construction services necessary to implement its decision. 

Rider 17 also requires expenditures for maintenance 

of facilities to be made only through interagency contracts with the Adjutant General's Office. 

pointed out, 

As already 

the Adjutant General's Office has implied 

authority to maintain buildings, and the Armory Board's 

decisions about building maintenance may be implemented by 

a contract with the Adjutant General's Office. Rider 17 

requires some of the Armory Board's expenditures for 

administration and support services 

interagency contract. 

to be made through 

Attorney General Opinion RW-352 

(1981) decided that the National Guard Armory Board could 

contract with the adjutant general under the Interagency 

Cooperation Act for the services of employees. 

We finally point out that rider 17 differs from the 

rider which was said to 

Opinion RW-585 (1982). 

be invalid in Attorney General 

stated in part: 

The rider at issue in that opinion 

It is the intent of the Legislature #at 

an interagency contract shall be executed 

between the State Board of Barber Examiners 

and the Texas Cosmetology Commission to 

reduce duplication of activities in 

tions, 

inspecenforcement and examination. 

General Appropriations Act, Acts 1981, 67th Leg., ch. 875, 

art. I, at 3376. This rider was invalid because it did 

not appropriate funds, nor did it detail, limit or 

restrict the use of funds appropriated elsewhere. Instead, 

it directed the State Board of Barber Examiners and the 

Texas Cosmetology Commission to take 

action. 

specific affirmative 

Attorney General Opinion WW-585 (1982). 

Rider 17 is also distinguishable from the rider held 

invalid in Attorney General Opinion JW-167 (1984). That 

p. 4328 
Mr. John Hille - Page 7 (JR-885) 

rider to the appropriation for the State Commission for 

the Blind provided in part:. 

9. It is the intent of the Legislature 

that out of funds appropriated above in item 

5.~. Older Blind Contract Training an amount 

not to exceed $272,146 each fiscal year 

shall be expended for entering into a contract with the Texas Lions League or a 

similar organization to provide rehabilitative services to blind adults. . . . 

Acts 1983, 68th Leg., ch. 1095, art. II, 59, at 5954. The 

opinion pointed out that the State Commission for the 

Blind had permissive authority to cooperate with public 

and private agencies in providing facilities and services 

for vocational rehabilitation of blind individuals. Human 

Resources Code 891.052(b)(l). The rider attempted to make 

mandatory a contract which general law made permissive. 

It therefore was invalid general legislation contained in 

an appropriations act in violation of article III, section 

35, of the Texas Constitution. Attorney General Opinion 

JM-167 (1984). 

Rider 17 does not attempt to impose a mandatory duty 

on the Armory Board to contract with a private entity, or 

to enter into any contract at all. Instead, it conditions 

the boardrs receipt of appropriated funds for construction and maintenance on the board's contracting with the 

Adjutant General's Department to perform the work. See 

ae rallv Attorney General Opinion V-1254 at 10 

(dyzcussinq 

(1951) 

appropriations subject to a condition). 

General law establishes a close relationship between the 

functions of the Armory Board and those of the Adjutant 

General's Office, and the appropriations act recognizes 

this connection by giving the two entities a combined 

appropriation. In view of these circumstances, we believe 

the legislature may allocate funding to a cooperative 

endeavor between the two entities as it has done in rider 

17. See aenerally Attorney General Opinion JR-256 (1984) 

(power to allocate public funds between state agencies is 

a legislative power). Rider 17 does not attempt to enact, 

amend, or repeal a general law in violation of article 

III, section 35(a), of the Texas Constitution. 

SUMMARY 

The Adjutant General's Department, 

governed by chapter 431 of the Government 

Code, has implied authority to build 

and maintain facilities. Rider 17 to the 

p. 4329 
Mr. John Hille - Page 8 (JM-885) 

combined 'appropriation to the Adjutant 

General's Department and the National Guard 

Armory Board in the current appropriation 

act, which provides that an appropriation to 

the Armory Board for construction and 

maintenance may be spent only throuqh 

interagency cokracts bith the- Adjutant 

General's Office, does not violate article 

III, section 35, of the Texas Constitution. 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

Lou MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 4330