Mr. Marlin W. Johnston 

Commissioner 

Texas Department of 

Human Resources 

P. 0. Box 2960 

Austin, Texas 78769 

Opinion No. JR- 860 

Re: Whether Rider 47 of the 

current appropriation for 

the Texas Department of 

Human Services conflicts 

with section 22.014 of the 

Human Resources Code 

(RQ-1242) 

Dear Wr. Johnston: 

You ask whether Rider 47 to the current appropriation 

for the Department of Human Services conflicts with 

section 22.014 of the Human Resources Code. 

Section 22.014 of the Human Resources Code provides: 

(a) The department [of Human Services], 

the Texas Department of Health, and the 

Texas Department of Mental Health and Mental 

Retardation shall adopt a memorandum of 

understanding that: 

(1) clearly defines the responsibilities 

of each agency in providing, regulating, and 

funding hospital or long-term care services; 

and 

(2) defines the procedures and standards 

that each agency will use to provide, 

regulate, and fund hospital or long-term 

care services. 

(b) The memorandum must provide that no 

new rules or regulations that would increase 

the costs-of providing the required services 

or would increase the number of personnel in 

hospital or long-term care facilities may be 

promulgated by either the department, the 

Department of Health, or the Department of 

p. 4171 
Mr. Marlin W. Johnston - Page 2 UM-860) 

Mental Health and Mental Retardation unless 

the commissioner of health certifies that 

the new rules or regulations are urgent as 

well as necessary to protect the health or 

safety of recipients of hospital or 

long-term care services. 

(a Theor ndt.m must Drovide that any 

rules or reculat~ons DrODOSed bv the deDartRent. the DeDarbIent of Health. or the 

of Drovidina the r curred services or which 

ad increase thz number of Dersonnel bn 

hosDita1 or lona-term care facilities must 

be accomDanied bv a fiscal note DreDared by 

the aaencv vr vosina 

mtted to thz 

said rules and 

deDartme n. t The fiscal 

note should set forth the exDected imDact 

which the vrovosed rule or reoulation will 

have on the cost of vrovidina the recuired 

@z-vice and the mivated imDact of the 

gl;oDosed rule or recn&&ion on the number of 

personnel In hosvital or bna-term care 

facilities. The memorandum must DrOVide 

that in order for a rule to be finahhy 

adoDted the devartment must Drovide Written 

verification that funds are available to 

adeouatelv Hurse hOSDlta1 or lono-te?ZIn 

care service Drovlders for anv increased 

costs resulting from the rule or reculation. 

The deDa3kment is not recuired to DrOVide 

written verification if the commissioner of 

. . 

h certlfle s that a new rule 

recfulation is uraent as well as necessarv E 

. . 

protect the health or safetv of reclDlents 

of hosvital or lona-term care services. 

(d) The memorandum must provide that upon 

final adoption of any rule increasing the 

cost of providing the required services, the 

department must establish reimbursement 

rates sufficient to cover the increased 

costs related to the rule. The department 

is not required to establish reimbursement 

rates sufficient to cover the increased cost 

related to a rule or regulation if the 

commissioner of health certifies that the 

rule or regulation is urgent as well as 

necessary to protect the health or safety of 

p. 4172 
Wr. Marlin W. Johnston - Page 3 W-860) 

recipients of hospital or long-term care 

services. 

(e) The memorandum must provide that 

Subsections (b) through (d) of this section 

do not apply if the rules are required by 

state or federal law or federal regulations. 

(f) These agencies in the formulation of 

this memorandum of understanding shall 

consult with and solicit input from advocacy 

and consumer groups. 

(g) .Not later than the last month of each 

state fiscal year, the department and the 

other agencies shall review and update the 

memorandum. 

(h) Each agency by rule shall adopt the 

memorandum of understanding and all 

revisions to the memorandum. (Emphasis 

added.) 

your question is in regard to the requirement in section 

22.014 that the Department of Human Services verify that 

funds are available to pay costs that would be incurred 

because of new rules or regulations affecting hospitals 

and long-term care facilities. 

Such verification is 

Hum. Res. Code 522.014(c). 

not required when the new rule or 

regulation is required by federal law or when the 

commissioner of health certifies that the new rule or 

regulation is urgent as well as necessary to protect the 

health or safety 

care services. 

of recipients of hospital or long-term 

Hum. Res. Code 522.014(c) and (e). 

Rider 47 to the appropriation for the Department of 

Human Services provides: 

None of the funds appropriated in this 

Act may be used as a source of funding for a 

written verification that funds are 

available to adequately reimburse hospital 

or long-term service providers for 

implementation of rules or regulations 

promulgated by either the Department of 

Health or Department of Human Services which 

increase the cost of providing such 

services, unless the rule or regulation is 

required by federal statute, rule or 

regulation. 

p. 4173 
Mr. Marlin W. Johnston - Page 4 (JM-860) 

General Appropriations Act for 1988-89 biennium, Acts 

1987, 70th Leg., 2d C.S., ch. 78, art. II, 51, at 844 

(11-43). Rider 47 prohibits the use of appropriated funds 

as the basis for verifying, as required by section 

22.014(c) of the Human Resources Code, that funds are 

available to pay the costs of a propos,ed rule or 

regulation. You ask the following question: 

Is DHS precluded by Rider (47) from making a 

written verification that appropriated funds 

are available to reimburse providers for 

increased costs resulting from new Health 

Department rules if they are not federally 

required even when it is the Department's 

determination that such funds are actually 

available? 

A rider to an appropriations bill is invalid if it 

conflicts with general law. &9 Jes en ssociates. Inc. 

V. llock 

Sheanard i92 

531 S.W.2d 593, 600 (Tzx. ?975)* Moore v. 

S.W.2d 559 (Tex. 1946). 

rider ma; do no 

To b; valid, 

more than detail, limit, or otherwisz 

restrict the use of appropriated funds. Moore VA 

Shenvard, m; Attorney General Opinion V-1254 (1951). 

A rider may, however, prohibit a state agency from. using 

appropriated funds for activities that the agency is 

otherwise authorized to conduct. See. e-a-# Attorney 

General Opinion M-499 (1969). 

The rider set out above merely limits the use of 

appropriated funds by prohibiting the use of such funds 

for paying co&s attributable to new rules and regulations 

that increase the cost of hospital and long-term care 

services. The fact that general law outlines a procedure 

for the promulgation of rules that would increase the cost 

of hospital and long-term care does not mean that the 

legislature must appropriate funds to pay the costs of any 

or all such rules. Because the rider in question merely 

limits the use of appropriated funds, we conclude that it 

is a valid rider.1 Therefore, the department may not 

1. We note that no verification of available funds 

is necessary when federal law requires the new rule or 

regulation or when the commissioner of health certifies 

that the new rule or regulation is urgent as well as 

necessary to protect the health or safety of recipients of 

(Footnote Continued) 

p. 4174 
,rr 

,- 

Mr. Marlin W. Johnston - Page 5 (JM-860) 

verify that appropriated funds are available to reimburse 

providers for increased costs related to new rules 

governing hospital and long-term care services. 

SUMMARY 

Rider number 47 to the appropriation for 

the Department of Human Services does not 

conflict with section 22.014(c) of the Human 

Resources Code. Therefore, the department 

may not verify that appropriated funds are 

available to reimburse providers for 

increased costs related to new rules governing hospital and long-term services. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LDUMCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STRANLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

(Footnote Continued) 

hospital or long-term care services. Hum. Res. Code 

.$22.014(c) and (e). Rider 47 is therefore inapplicable to 

rules or regulations required by federal law and to cases 

in which the commissioner of health has certified that the 

new rule or regulation is urgent as well as necessary to 

protect the health or safety of recipients of hospital or 

long-term care services. 

p. 4175