### f-. April6,1988

Nr.John Hille Opinion No. JR-885 Acting Executive Director TexasNational 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:

Youhave requested an opinion construing a rider in the current appropriations actwhich 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 ofappropriation, found inthe 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.4323Mr. John Hille -Page 2 (JM-885)

General Appropriations Act, Acts 1987, 70th Leg., 2dC.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. **Acquisi** tion and Construction, and Item 5-a. Facilities Maintenance, National Guard m-Y Board, be made [sic]only through interagency contracts with theAdjutant 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 intoa contract **under** the Interagency Cooperation **Act** to provide construction services to theNational Guard Armory Board. V.T.C.S. **art. 4413(32),**  **53.**

Thevalidity of an appropriations act rider isdetermined by reference to article III, section **35,** of the Texas Constitution, which provides inpart:

Sec. **35.** (a) No bill, (scent aenera a&mm=-Uon bills. mav anbrace ths various subjects uunts. forud 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 theunderlined 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 isthe appropriation of funds tobe 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 ofapproprjation" 593, **600** (Tex.1975). sets aside or dedicates funds fora specified purpose, while a valid rider qualifies ordirects 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. ridermust be germane to th; appropriation Tobevalid, 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 . Fin1y 49aStr 1946);
GenezalVOpinioneVL1254 (195;).578 (Tex. 1899); Attorney

you suggest that rider 17 is invalid on the ground that theAdjutant General's Department lacks authority to enter intoan interagency contract to construct buildings fortheArmory Board. you argue, ineffect, that rider 17 is invalid because it is inconsistent with provisions of general lawgoverning theAdjut,antGeneral's Department, and itthus attempts to amend general law.

The following provisions of the Interagency Cooperation Act are relevant toyour argument:

Sec. 3. Any state agency may enter into andperform awritten 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 ofmaterials, or the services ofequipment.
. . . Provided, however, nothing herein shall authorize any agency to construct any highway, street, road, or other building or structure **for** any other agency, except asotherwise specifically authorized by existing law. . . .

. . . .
Sec. 5. No agreement or contract may be entered intoorperformed which will require
orpermit an agency of the State to exceed itsconstitutional or statutory duties and responsibilities, or the limitations of its appropriated funds.

V.T.C.S. art. 4413(32), §§3, 5.

Youpoint out that theAdjutant General's Department has no express authority to construct any building. The National Guard Armory Board, incontrast, was established to acquire sites andbuild armories to house the Texas National Guard and its equipment, and toprovide ameans of financing the construction of armories. Texas National

p.4325Mr. 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). TheArmory Board

isapublic authority and abody politic and corporate and has all powers necessary for the acquisition, construction, rental, control, maintenance, and operation of Texas National Guard orTexas State Guard armories, including allproperty 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 theArmory Board shows, its close connection with the Adjutant General's Department. In addition, the Armory Board iscomposed of three senior officers of the Texas National Guard and threemembers 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 theNational Guard, itdoes not necessarily have exclusive power over construction. The adjutant general has broad powers which, in our opinion, include implied authority tobuild, maintain, and repair buildings necessary to carry out his responsibilities. He controls themilitary 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 issubordinate only to the governor, who iscommander-in-chief of the statemilitary forces. Gov't Code 0431.002. He isdirected by statute to

perform for the state asnear 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 theUnited States armed forces. . . .
Gov't Code 5431.029(2). Federal law provides that the Secretary of theArmy

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

isresponsible 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 andwelfare ofpersonnel). Maintaining. The construction, outfitting, and repair ofmilitary equipment. The construction. maintenance. and

. . renair ofbuildinas. structures, andutjJ,j&&g and the acquisition of real property and interests in realproperty necessary to carry out the responsibilities specified inthis section. (Emphasis added.)

10U.S.C. 53013. Section 431.029 of the Government Code, read together with section 3013 of title 10,United States Code, gives theAdjutant General some authority tobuild, maintain and repair buildings as necessary to carry out his duties. Moreover, theAdjutant General has authority to "employ clerks, employees, andJaborerg asnecessary to carry on the operations of thedepartment." (Emphasis added.) Gov't Code 8431.028. The ReDOrt to the Sunset AdvisoN Commission by theAdjutant General's Department indicated that the department had responsibility to see that facilities tohouse 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. Adjutant 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 andmaintenance work. Id. at 23.

p.4327Mr. 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 ithas authority toprovide 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 toundertake. The rider contemplates that theArmory Boardwill contract with the Adjutant General's Department, instead of a private construction company, for the supervision of construction services necessary to implement itsdecision.

Rider 17also requires expenditures for maintenance of facilities tobe made only through interagency contracts with theAdjutant General's Office. pointed out, As already

theAdjutant General's Office has implied authority tomaintain buildings, and theArmory 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. tobe made through Attorney General Opinion RW-352 (1981)decided that theNational Guard Armory Board could contract with the adjutant general under the Interagency Cooperation Act forthe services of employees.

We finally point out that rider 17differs from the riderwhich was said to Opinion RW-585 (1982). be invalid inAttorney General

stated inpart: The rider at issue inthat opinion

It isthe 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 ofactivities in tions, inspecenforcement and examination.

General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art. I,at 3376. This rider was invalid because itdid not appropriate funds, nor did it detail, limit or restrict theuse of funds appropriated elsewhere. Instead, itdirected the State Board of Barber Examiners and the Texas Cosmetology Commission to take action. specific affirmative

Attorney General **Opinion** WW-585 (1982).
Rider 17 isalso distinguishable from the rider held invalid inAttorney 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 inpart:.

9. It isthe 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 contractwith the Texas Lions League or a similar organization toprovide rehabilitative services toblind 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 andprivate agencies inproviding facilities and services forvocational rehabilitation ofblind individuals. Human Resources Code 891.052(b)(l). The rider attempted tomake mandatory acontract which general lawmade permissive. Ittherefore was invalid general legislation contained in
an appropriations act inviolation of article III, section 35, of the Texas Constitution. Attorney General Opinion JM-167 (1984).

Rider 17does not attempt to impose amandatory duty
on theArmory Board to contract with a private entity, or to enter into any contract atall. Instead, itconditions the boardrs receipt of appropriated funds for construction andmaintenance on the board's contracting with the Adjutant General's Department toperform thework. See
ae rallv Attorney General Opinion V-1254 at 10 (dyzcussinq (1951)

appropriations subject to a condition). General lawestablishes aclose 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. Inview ofthese circumstances, we believe the legislature may allocate funding to a cooperative endeavor between the two entities as ithas done inrider 17. See aenerally Attorney General Opinion JR-256 (1984) (powerto allocate public fundsbetween state agencies is
a legislative power). Rider 17does not attempt to enact, amend, or repeal ageneral 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 andmaintain facilities. Rider 17 to the

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

combined 'appropriation to the Adjutant General's Department and theNational Guard Armory Board inthe 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 notviolate article III, section 35, of the Texas Constitution.

Attorney General ofTexas

MARYKELLER First Assistant Attorney General

LouMCCREARY 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