July 19, 1974
The Honorable James D. Cole House Administrator House ofRepresentatives 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 onbehalf ofthe House ofRepresentatives Committee onHouse Administration raises one ofthe most frequent questions of statutory interpretation to come before theAttorney General and one ofthe most troublesome. You have asked our opinion ofthe constitutionality ofaprovision oftheAppropriations 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 alimitation onthe expenditure offunds appropriated inthis Act and toinsure that funds appropriated for salaries ofclassified positions are spent in accordance with Legislative intent and the laws ofthe State, each agency and department ofthe State of Texas shall prepare and maintain awritten plan toassure 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 ofall employees by race, sex,

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

and class ofposition 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 befiled with the Office ofthe Governor within ninety days after the enactment ofthis Bill covering the period September 1, 1973, through August 31, 1974, and shall be updated onan annual basis. Progress reports shall be submitted within thirty days ofSeptember 1 and March 1of each year.. The Office ofthe Governor shall cooperate with agencies to provide technical assistance to agencies and departments in the preparation ofthese plans. Article 3, Section 35 ofthe Texas Constitution provides:

. . . No bill, (except general appropriation bills, whtch may embrace the various subjects and accounta, for and onaccount ofwhich moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But ifany subject shall be embraced in anact, 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 inafew instances andAttorneys General in many have construed this section as itapplies to riders toAppropriation Acts. Perhaps the most definitive analysis is that contained inAttorney General Opinion V-1254 (1951)by then Attorney General Price Daniel, as follows: .

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

With special regard towhat incidental provisions may be included within ageneral appropriation bill, our Texas courts have not stated ageneral rule. However, from statements as towhat may not beincluded and from numerous opinions oftheAttorney General, we believe the rule may be stated generally as follows: Inaddition toappropriating money and stipulating the amount, manner, and purpose ofthe various item,* ofexpenditure. **a** general appropriation bill may contain any provisions or riders which detail, limit, or restrict the use ofthe funds or otherwise insure that the money is spent for the required activity for which itis therein appropriated, ifthe provisions or riders are necessarily connected with anincidental tothe appropriation and **use** ofthe funds, and provided they donot conflict with general legislation. (Opinion V-1254. rupra, p.8). As long as ageneral appropriation bill includes only subjects ofappropriating money and limiting the use thereof inharmony with general legislation, it may relate to any number ofdifferent ‘subjects and accounts. ’ Insuch instances all of the subjects are under the one general object and purpose ofappropriating funds from the treasury. The obvious purpose of this limited exception was tomake certain that appropriations torrmre than one department in the same bill would not be prohibited. Inall 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. 1635The 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. Ithas the one general purpose or subject matter ofappropriating money. General legislation does more than appropriate money and limit its expenditure. As said by aformer Attorney General in Opinion No. 2965 (19351, 1
, . . ifthe Bill does more than set aside a sum ofmoney, provide the means ofits distribution, and towhom it shall be distributed, then itis a general law
. . .’ Thus, the distinction between general appropriation bills and general legislation has been recognized inthis State in the simple fact that theformer merely sets apart sums ofmoney for specific objects and uses while the latter does more than merely appropriate and limit the use offunds. 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 inapplying these rules to aparticular enactment or rider. Opimon V-1254. supra, was a general discussion of riders. It did not involve aparticular rider. Attorney General Opinion V-1253 (1951),

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

issued the day before Opinion V-1254, involved riders (1)prohibiting the purchase ofany 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 tobe valid as a “mere” limitation and restriction onthe **use** ofthe 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 1971Appropriations 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 inits purpose does more than merely limit or restrict the expenditure ofappropriated funds. In **our** opinion, it is general legislation affirmatively decreeing that all agencies and departments ofthe state are to take certain action. And, **as** laudable as the required action may be, we are legally bound tohold 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, inits General Provisions, Article V, at page 2217, contains Sec. 55 **as** follows: Sec. 55. DISCRIMINATORY PRACTICES. None

ofthe funds appropriated in this Act shall be expended byagencies 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 ofthe Governor. Sec. 55 is

- “merely” alimitation or restriction onthe expenditure ofappropriated funds and is avalid rider. The rider requiring an affirmative plan containing ananalysis ofemployees by race, sex and class ofposition and containing aplan for recruitment and other matters, is general legislation, and therefore invalid.

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

This opinion inno way affects or lessens the effect ofSubsection 55 supra. Nor does it lessen the requirement that states and their political subdivisions abide bythe 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 thefederal law. 42 U.S.C. §20OOe-5(g). SUMMARY While Sec. 55 ofArticle V oftheAppropriation Act for 1974 and 1975 mandates that no appropiated funds be expended byagencies that practice discrimination based onrace, creed, sex or national origin, the rider to theAct requiring affirmative action plans to provide equal employment opportunity is invalid as general legislation. Requirements ofthe 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

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