# The Attorney General ofTexas
April 25, 1978 JOHNL.HILL AttorneyGeneral

Honorable James M.Windham Chairman Board ofCorrections Livingston, Texas 77351
Dear Mr. Windham: Opinion No. Ii- 1158
Re: Acquisition of land for a prison farm.

You have asked three questions relating to the acquisition of land on which to construct a new prison unit. The questions involve a rider to the General Appropriations Act for then1978-79fiscal years. That rider provides:

The Department of Corrections is authorized to squire from the proceeds of the sale or exchange of the Blue Ridge Farm, and from the appropriation for prison construction, sufficient acreage in West Texas, not to exceed a valuation of $8,000,000 upon which to construct a prison unit. Appropriated funds provided herein shall be expended only when authorized by the approval board, as provided under Sanate Bill No. 449, Fifty-fourth Legislature, Regular Session, consisting of the Governor, the Commissioner of the General Land Office and the Chairman ofthe Board of Corrections. Acts 1977,85th Leg., ch. 872, at 2870. Yourquestions are: (1) Can the acreage referred to in the rider be purchased by the Texas Department of Corrections solely from appropriated money, without the inclusion ofany money from the sale of the Blue Ridge Farm? (2) Is the language in the rider indicating’that the acreage in question is to be located in “West Texas” directory or mandatory?

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(3) If, and only if such language is determined to be mandatory, does WestTexas include Iiidalgo County? The first question is ofprimary importance since a 1955statute limits use of funds from the &le ofthe Blue Ridge Farm. That statute provides inpart:

Sec. 3. The proceeds from the sale of [the Blue Ridge Farm1 shall beplaced inaspecial fund inthe State Treasury for use by the Texas Prison Board in purchasing other lands for the Texas Prison System within a radius of seventy five (75)miles ofHuntsville, Texas.

. .. Acts 1955,54th Leg., ch. 457, at l178. An appropriation act rider cannot amend a statute. Attorney General Opinion V-1254(1951). Thus, unless the property can be purchased with funds other than the proceeds of the sale of Blue Ridge Farm, the new acreage must be within seventy-five miles of Huntsville. The rider authorizes the Department ‘*toacquire [acreage in West Texas] from the proceeds of,the sale or exchan appropriation for prison construction” ‘f e of the Blue Ridge Farm, and from the emphasis added). Your fZZ question requires us to decide whether the “and” can be construed in the disjunctive rather than the more usual conjunctive form. The Texas Supreme Court has said:

Ordinarily the words ‘and’ and ‘or,’ are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant, the ,former being strictly of a conjunctive, the latter, of a disjunctive, nature. Nevertheless, in order to effectuate the intention of the parties to an instrument, a testator, or a legislature, as the case may be, the word ‘and’is sometimes construed to mean ‘or.’ This construction, however, isnever resorted to except for strong reasons and the words should never be so construed unless the context favors the conversion; as where it must be done in order to effectuate the manifest intention of the user; and where not to do so would render the meaning ambiguous, or result in an absurdity; or would be tantamount to a refusal to~correct a mistake. Board of Insurance Commissioners of Texas v. Guardian Life Ins. Co. of Texas, 180 S.W.2d908, 908(Tex. 1944)(quoting 3C.J.S., And, 1088).
Here we cannot say that the context and language of the rider requires the conversion. In fact, we believe the statutory language suggests that the conjunctive use is required. General statutes and appropriations act riders on the

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Jessen Associates, statute specifically same subject are & pari materia and must be read together. Inc., v. Bullock, 531S.W.2d 593, 800 (Tex. 1975). The 1955 provides that the proceeds from the sale of Blue,Ridge Farm will be used for the purchase of new land. The rider to the Appropriation Act aecifically refers to this statute and makes the purchase of the new farm conditional on the concurrence of the Approval Board which is established in the 1955statute. The Approval Board’s sole functions are set out inthe 1955legislation and are to approve the sale of the Blue Ridge Farm and to approve the purchase of new acreage with the proceeds. Whenthe rider and the 1955statute are construed together, as they are required to be, the utilization of the Blue Ridge proceeds is mandated. Additionally, the budget request submitted by the Texas Department of Corrections to the Legislature does not indicate that any general revenue appropriation wasrequested for purchase of land. Compare pages 358 and 358 with pages 2 through 5, Texas Department of Corrections Budget Estimates, fiscal years 1978and 1979(October, 1978)

. Weare thus compelled to conclude that the language of the rider requires that the acreage for a new prison farm be purchasedwith the~proceeds ,from the sale of the Blue Ridge Farm and with sufficient general revenue funds to qua1 the difference between the cost of the new acreage end the receipts from the Blue Ridge property. Although the rider refers to purchase of land in West Texas while the statute limits the purchase to a seventy-five mile radius of Huntsville, this anomalous result does not indicate that the Legislature intended that the purchase was to be made solely from general revenue funds. The rider apparently was drafted in the anticipation that H.B. 1387would pass the 85th Legislature. That bill would have amended the 1955 legislation ‘relating to the Blue Ridge, Farm to remove the seventy-five mile limitation and to alter other provisions relating to the sale of Blue Ridge Farm and the purchase of a new farm. That bill waspassed by the House on May 23, and waspassed by the Senate onsecond reading onMay 30,1977; however, it was never considered by the Senate on third ‘and final reading. The Appropriation Bill, on the other hand, waspassed byboth housesonMay26, 1977. Thus, it is our conclusions that the language of the appropriation riders requires that the acreage for anew prison ferm be purchased at least in part with proceeds from the sale ofthe Blue Ridge Farm. Since them use ofproceeds from the sale ofBlue Ridge Farm is limited bystatute to the purchase of other lands within the seventy-five mile radius of Huntsville, it isunnecessary to address your second and third questions. SUMMARY

A rider to the Texas Department of Corrections eppropriation inthe Appropriations Act for fiscal years 1978and 1979 provides the purchaseofacreage for anewprison farm isto be made primarily with funds from the sale of the Blue

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Attcmey Generalof 

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