July 19, 1974 

The Honorable James D. Cole 

House Administrator 

House of Representatives 

Austin, Texas 

Opinion No. H- 351 

Re: Validity of rider to 

Appropriations Act (H. B. 

139, 63rd Leg.) regarding 

equal employment opportunity. 

Dear Representative CoTe: 

Your letter on behalf of the House of Representatives Committee 

on House Administration raises one of the most frequent questions of 

statutory interpretation to come before the Attorney General and one 

of the most troublesome. 

You have asked our opinion of the constitutionality of a provision 

of the Appropriations Act for fiscal 1974 and 1975 (Laws 1973, 63rd Leg., 

ch. 659, p. 1986) found as a rider to the appropriation to the office of . 

the Governor at pages 1967-68: 

As a limitation on the expenditure of funds 

appropriated in this Act and to insure that funds 

appropriated for salaries of classified positions 

are spent in accordance with Legislative intent 

and the laws of the State, each agency and department of the State of Texas shall prepare and maintain a written plan to assure implementation of 

a program of equal employment opportunity whereby 

all personnel transactions are made without regard 

to race, religion, national origin, or sex .(except 

where sex constitutes a bona fide occupational 

qualification). The plans shall contain a comprehensive analysis of all employees by race, sex, 

p. 1633 
’ 

The Honorable James D. Cole page 2 (H-351) 

and class of position and shall include plans for 

recruitment, Eelection, appointment, training, 

promotion, and other personnel practices. The 

plans shall also include objectives and goals, 

timetables for the accomplishment and assignments 

of responsibility for their completion. 

The plans shall be filed with the Office of the 

Governor within ninety days after the enactment 

of this Bill covering the period September 1, 1973, 

through August 31, 1974, and shall be updated 

on an annual basis. Progress reports shall 

be submitted within thirty days of September 1 

and March 1 of each year.. The Office of the 

Governor shall cooperate with agencies to provide technical assistance to agencies and 

departments in the preparation of these plans. 

Article 3, Section 35 of the Texas Constitution provides: 

. . . No bill, (except general appropriation 

bills, whtch may embrace the various subjects 

and accounta, for and on account of which 

moneys are appropriated) shall contain more 

than one subject, which shall be expressed in 

its title. But if any subject shall be embraced 

in an act, which shall not be expressed in the 

title, such act shall be void only as to so much 

thereof, as shall not be so expressed. 

The courts in a few instances and Attorneys General in many have 

construed this section as it applies to riders to Appropriation Acts. 

Perhaps the most definitive analysis is that contained in Attorney General 

Opinion V-1254 (1951) by then Attorney General Price Daniel, as follows: 

. 

p. 1634 
‘_ 

i : 

The Honorable James D. Cole page 3 (H-351) 

With special regard to what incidental 

provisions may be included within a general 

appropriation bill, our Texas courts have not 

stated a general rule. However, from statements as to what may not be included and from 

numerous opinions of the Attorney General, we 

believe the rule may be stated generally as 

follows: In addition to appropriating money 

and stipulating the amount, manner, and purpose 

of the various item,* of expenditure. a general 

appropriation bill may contain any provisions 

or riders which detail, limit, or restrict the 

use of the funds or otherwise insure that the 

money is spent for the required activity 

for which it is therein appropriated, if the 

provisions or riders are necessarily connected with an incidental to the appropriation and use of the funds, and provided they 

do not conflict with general legislation. 

(Opinion V-1254. rupra, p. 8). 

As long as a general appropriation bill 

includes only subjects of appropriating money 

and limiting the use thereof in harmony with 

general legislation, it may relate to any number 

of different ‘subjects and accounts. ’ In such 

instances all of the subjects are under the one 

general object and purpose of appropriating funds 

from the treasury. The obvious purpose of 

this limited exception was to make certain that 

appropriations torrmre than one department in 

the same bill would not be prohibited. In all 

other respects general appropriation bills are 

subject to the same prohibition as all other bills 

against containing more than one subject. The 

result is that general legislation cannot be 

. 

p. 1635 
The Honorable James D. Cole page 4 (H-3511 

embodied within a general appropriation bill. 

Moore v. Sheppard, supra. [192 S. W. 2d 559 

(Tex. 194611. 

A general appropriation bill may be defined 

as a single bill which appropriates funds for two 

or more departments, subjects, accounts, or 

purposes. It has the one general purpose or 

subject matter of appropriating money. 

General legislation does more than appropriate money and limit its expenditure. As 

said by a former Attorney General in Opinion 

No. 2965 (19351, 

1 

, . . if the Bill does more than 

set aside a sum of money, provide 

the means of its distribution, and 

to whom it shall be distributed, 

then it is a general law . . . ’ 

Thus, the distinction between general 

appropriation bills and general legislation 

has been recognized in this State in the simple 

fact that the former merely sets apart sums 

of money for specific objects and uses while 

the latter does more than merely appropriate 

and limit the use of funds. General legislation 

constitutes a separate subject and cannot be 

included within a general appropriation bill. 

Moore v. Sheppard, supra; Attorney General 

Opinion No. 2965, supra.(Opinion V-1254, supra, 

pp. 6-7). 

The difficulty lies in applying these rules to a particular enactment 

or rider. Opimon V-1254. supra, was a general discussion of riders. It 

did not involve a particular rider. Attorney General Opinion V-1253 (1951), 

p. 1636 
The Honorable James D. Cole page 5 (H-351) 

issued the day before Opinion V-1254, involved riders (1) prohibiting the 

purchase of any passenger motor vehicle with appropriated funds and (2) 

ordering that all statehowned passenger motor vehicles be sold not later 

than October 1, 1951. The first provision was held to be valid as a “mere” 

limitation and restriction on the use of the money. The second was held 

invalid as general legislation. For other examples, we would call to your 

attention Attorney General Opinion M-1199 (1972), a detailed study of riders 

in the 1971 Appropriations Act as well as those cited in Opinion V-1254, 

supra. 

With these rules in mind, it is apparent to us that the rider in 

question while, of course, laudable in its purpose does more than merely 

limit or restrict the expenditure of appropriated funds. In our opinion, 

it is general legislation affirmatively decreeing that all agencies and 

departments of the state are to take certain action. And, as laudable 

as the required action may be, we are legally bound to hold that forced 

compliance will require further legislative action. 

As in Opinion V-1253, supra, our reasoning, perhaps, may be 

made clearer by contrasting the rider with another. The same Appropriation Act, in its General Provisions, Article V, at page 2217, contains 

Sec. 55 as follows: 

Sec. 55. DISCRIMINATORY PRACTICES. None 

of the funds appropriated in this Act shall be expended 

by agencies which practice discrimination based on 

race, creed, sex or national origin. The State Attorney 

General shall be specifically responsible for the enforcement thereof upon the request of the Governor. 

Sec. 55 is 

- 

“merely” a limitation or restriction on the expenditure 

of appropriated funds and is a valid rider. The rider requiring an affirmative 

plan containing an analysis of employees by race, sex and class of position 

and containing a plan for recruitment and other matters, is general legislation, and therefore invalid. 

p. 1637 
The Honorable James D. Cole page 6 (H-351) 

This opinion in no way affects or lessens the effect of Subsection 55 

supra. Nor does it lessen the requirement that states and their political 

subdivisions abide by the federal laws prohibiting discrimination in employment, e.g. 42 U.S. C. §2000e-2, 29 C.F.R. Sec. 160 et seq., or that 

they ta!-eaffi rmative action required under the federal law. 42 U. S. C. 

§ 20OOe-5(g). 

SUMMARY 

While Sec. 55 of Article V of the Appropriation Act for 1974 and 1975 mandates that no appropiated 

funds be expended by agencies that practice discrimination based on race, creed, sex or national origin, the 

rider to the Act requiring affirmative action plans to 

provide equal employment opportunity is invalid as 

general legislation. Requirements of the Federal 

laws prohibiting discrimination in employment or 

requiring affirmative action are unaffected by this 

opinion. 

+,.&RRk F. /YORK, F/irst kBai-&ant 

&J&H 

DAVID M. KENDALL, Chairman 

, 

Opinion Committee 

llz 

p. 1638