OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

December 27,200l 

The Honorable Clyde Alexander 

Chair, Committee on Transportation 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-29 10 

Opinion No. JC-0448 

Re: Validity of a rider to the general 

appropriations act requiring the Texas Department 

of Transportation to sign an agreement with the 

City of El Paso in order to expend funds to build 

a border inspection station (RQ-04 19-JC) 

Dear Representative Alexander: 

You inquire about the validity of a rider in the 2001 General Appropriations Act. Rider 63, 

attached to the appropriation to the Texas Department of Transportation, attempts to amend a general 

law in violation of article III, section 35 of the Texas Constitution, and it is therefore invalid. 

The rider you inquire about relates to certain border inspection stations to be established by 

the Texas Department of Transportation (the “Department”).’ See General Appropriations Act, 77th 

Leg., R.S., S.B. 1, art. VII-36, available at Legislative Reference Library, and at 

http://www.lbb.state.tx.us. The rider provides that “[i]t is the intent of the Legislature that before 

funds are expended” for building such a facility, the Department and the governing board of the 

municipality in which the facility is to be located must agree on the location, plans, and 

implementation strategy for the facility. Id. 

You state that this rider is relevant to a controversy concerning the opening of a temporary 

inspection station for commercial vehicles in El Paso. The Department is required to establish and 

maintain border inspection stations, see TEX. TRANSP. CODE ANN. 9 201.6 13 (Vernon Supp. 2002), 

while the Department of Public Safety is responsible for the inspection program for commercial 

motor vehicles, id. 5.548.201. It has been suggested that these agencies have not complied with the 

rider. Request Letter, supra note 1. Accordingly, you ask whether the rider is valid. 

The legislature may not include a general law in a general appropriations act, because such 

action would violate article III, section 35 of the Texas Constitution. See Strake v. Court ofAppeals, 

‘Letter from Honorable Clyde Alexander, Chair, House Committee on Transportation, to Honorable John 

Comyn, Texas Attorney General (Aug. 15, 2001) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Clyde Alexander - Page 2 (Jc-0448) 

704 S.W.2d 746,748 (Tex. 1986). Article III, section 35 states in part that “[n]o bill, (except general 

appropriation bills, which may embrace the various subjects and accounts, for and on account of 

which moneys are appropriated) shall contain more than one subject.” TEX. CONST. art. III, 5 35(a). 

This provision has been construed to mean that the appropriation of funds from the state treasury is 

a single subject and that any rider to an appropriations bill must relate to the appropriation of funds. 

Strake, 704 S.W.2d at 748; see Jessen Assoc., Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975); 

Moore v. Sheppard, 192 S.W.2d 559,561 (Tex. 1946) (general appropriation bill is limited to the 

subject of appropriations). A rider that attempts to alter existing substantive law is a general law 

that may not be included in an appropriations act. Strake, 704 S. W.2d at 748. Thus, a general law 

may not be adopted by a rider, Moore, 192 S.W.2d at 561, and a rider may not repeal, modify, or 

amend an existing general law. See id.; Linden v. Finley, 49 S.W. 578 (Tex. 1899); Tex. Att’y Gen. 

Op. Nos. MW-585 (1982), MW-51 (1979), V-1254 (1951). 

A rider may detail, limit, or restrict the use of appropriated funds. Tex. Att’y Gen. Op. Nos. 

JC-0178 (2000) at 3, JM-1151 (1990) at 5, V-1254 (1951) at 8, V-1253 (1951) at 4. A rider that 

merely directs the use of appropriated funds or is incidental to an appropriation is valid, because it 

relates to the appropriation of funds. SeeStrake, 704 S.W.2d at 748; Jessen Assoc., Inc., 53 1 S.W.2d 

at 599-600. Merely phrasing a rider as a restriction on the use of appropriated funds does not 

necessarily make it a valid rider. Tex. Att’y Gen. LO-96-079, at 3. A rider stating that “[nlone of 

the funds appropriated to” an entity may be expended unless some condition is fulfilled still may be 

an invalid attempt to amend general law. See Tex. Att’y Gen. Op. Nos. DM-8 1 (1992), M-l 199 

(1972) (holding invalid various riders phrased as restrictions on use of appropriated funds). More 

important than the formulation of the rider is the breadth or narrowness of its effect, and whether or 

not it conflicts with general law. See Strake, 704 S.W.2d at 748-49; Tex. Att’y Gen. LO-96-079, at 

2-3. 

Numerous opinions of this office have addressed riders that attempt to amend general laws 

and have determined that such riders are invalid under article III, section 35 of the Texas 

Constitution. Attorney General Opinion JC-0178 considered the validity of a rider adding a 

requirement to the statutory formula for distributing funds for emergency medical services. We 

determined that the rider attempted to amend general law and therefore contravened article III, 

section 35 of the Texas Constitution. Tex. Att’y Gen. Op. No. JC-0178 (2000) at 3. In Attorney 

General Opinion DM-116, a rider directing the Texas Department of Aging to use the “service 

standards, systems, billing and audit procedures, and provider bases used by the Department of 

Human Services” was determined to constitute general law and was therefore violative of Texas 

Constitution, article III, section 35. Tex. Att’y Gen. Op. No. DM-116 (1992) at 2. A rider that 

attempted to transfer the operations and responsibilities of the State Rural Medical Education Board 

to the Coordinating Board, Texas College and University System was found unconstitutional in 

Attorney General Opinion JM-1018. The rider was “a general directive in derogation of the 

constitutional and statutory directive concerning the affairs of the Rural Medical Education Board.” 

Thus, it constituted unconstitutional general legislation limiting the powers of the Rural Medical 

Education Board. Tex. Att’y Gen. Op. No. JM-1018 (1989) at 2. A rider expressing the legislature’s 

intent that “an interagency contract . . . be executed between the State Board of Barber Examiners 
The Honorable Clyde Alexander - Page 3 (Jc-0448) 

and the Texas Cosmetology Commission to reduce duplication of activities,” General Appropriations 

Act, 67th Leg., ch. 875, art. I, 1981 Tex. Gen. Laws 3376, attempted to enact general legislation 

within an appropriations act and therefore violated article III, section 35 of the Texas Constitution. 

See Tex. Att’y Gen. Op. No. MW-585 (1982). 

We will evaluate Rider 63 according to the standards set out in case law and applied in the 

opinions of this office. This rider provides as follows: 

Border Inspection Facilities. It is the intent of the 

Legislature that before funds are expended for the purpose ofbuilding 

a co-located facility which would serve as a commercial motor 

vehicle inspection facility, border inspection station, or a centralized 

border inspection station that the department sign an agreement with 

the governing board of the municipality in which the facility is to be 

located which states that the location, plans, and implementation 

strategy for the proposed facility are acceptable to all parties 

involved. 

General Appropriations Act, 77th Leg., R.S., S.B. 1, art. VII-36, available at Legislative Reference 

Library, and at http:Nwww.lbb.state.tx.us. “Collocate” means “[t]o place side by side, or in some 

relation to each other.” III OXFORD ENGLISH DICTIONARY 487 (2d ed. 1989). Depending on context, 

it may mean “to locate in the same building or part of a building.” See TEX. GOV’T CODE ANN. 8 

2 165.106 1 (Vernon 2000) (collocation of state agency administrative office space). 

The border inspection facilities that are the subject of Rider 63 are also addressed by section 

201.6 13 of the Transportation Code, which requires the Department to establish and maintain border 

inspection facilities in three cities. This provision was adopted in 1999 as Senate Bill 913. See Act 

of May 30, 1999, 76th Leg., R.S., ch. 1527, 8 1, 1999 Tex. Gen. Laws 5254. Its purpose was 

to help expedite the flow of traffic through the Texas-Mexico border, which had increased greatly 

after the North American Free Trade Agreement was adopted. See SENATE COMM. ON BORDER 

AFFAIRS, BILL ANALYSIS, Tex. S.B. 913, 76th Leg., R.S. (1999). Senate Bill 913 required the 

Department “to establish and maintain an inspection station in Brownsville, in Laredo, and in El 

Paso along a major highway at or near a border crossing from Mexico so that all federal, state, and 

municipal agencies that regulate the passage of commercial motor vehicles could be located in one 

place.” FISCALNOTE, Tex. S.B. 913’76th Leg., R.S. (1999). Section 201.613 of the Transportation 

Code provides as follows: 

(a) The department shall choose a location for an inspection 

station along a major highway at or near a border crossing from 

Mexico in Brownsville, in Laredo, and in El Paso so that all federal, 

state, and municipal agencies that regulate the passage of persons or 

vehicles across the border at that border crossing may be located in 

one place. 
The Honorable Clyde Alexander - Page 4 (~~-0448) 

(b) The department shall establish and maintain an inspection 

station at the locations chosen in Subsection (a) only if the federal 

agencies involved in the regulation of the passage of persons or 

vehicles at that border crossing agree to the design of the facility at 

each location and agree to use the facility at each location if built. 

(c) The department may enter into agreements with federal, 

state, and municipal agencies to accomplish the purpose of this 

section. An agreement may involve the lease of office space at the 

inspection station by the department to the agency. 

TEX. TRANSP. CODE ANN. 9 201.613 (Vernon Supp. 2002). We understand that an inspection station 

for commercial vehicles has been opened in El Paso,* where the Texas Department of Public Safety 

is inspecting trucks on the Department of Transportation’s right-of-way, but that no building has yet 

been constructed at that site.3 

Section 201.613 of the Transportation Code authorizes the Department to choose the 

locations for the inspection stations. Rider 63, however, would make the construction of a facility 

at the location chosen by the Department contingent upon its securing the municipality’s written 

agreement that “the location, plans, and implementation strategy for the proposed facility are 

acceptable to all parties involved.” See General Appropriations Act, 77th Leg., R.S., S.B. 1, art. 

VII-36, available at Legislative Reference Library, and at http:llwww.lbb.state.tx.us. The rider thus 

attempts to curtail the Department’s authority under section 201.613 of the Transportation Code to 

choose the location for an inspection station or stations in each of the three cities. Section 201.613 

provides that the Department “shall establish and maintain an inspection station at the locations 

chosen in Subsection (a)” only if certain federal agencies agree to the design of the facility at each 

location and agree to use it if built, but nothing in that statute requires the Department to secure the 

municipality’s agreement to “the location, plans, and implementation strategy for the proposed 

facility.” Id. Accordingly, Rider 63 attempts to amend substantive law in violation of article III, 

section 35 of the Texas Constitution. 

A brief submitted to us argues, however, that Rider 63 is not an impermissible modification 

of section 201.613(a) of the Transportation Code.4 It asserts that “nothing in [section] 201.6 13 states 

or implies that TXDOT’S [the Department’s] decisions cannot be encumbered” and cites Coates v. 

Windham, 6 13 S. W.2d 572, 575 (Tex. Civ. App.-Austin 1981, no writ), as authority for this 

‘See Request Letter, supra note 1. 

3See Letter from Honorable Joseph C. Pickett, Texas State Representative, to Major Coy Clanton, Texas 

Department of Public Safety (July 3 1, 2001), attached to Brief from Representative Pickett to, Susan Gusky, Chair, 

Opinion Committee (Aug. 29,200l) (on file with Opinion Committee). 

4Brief from Mr. Paul N. Wageman, Winstead, Se&rest & Minick, on behalf of Fasken Oil and Ranch, Ltd., 

to Susan Gusky, Chair, Opinion Committee at 2 (Oct. 8,200l) (on file with Opinion Committee). 
The Honorable Clyde Alexander - Page 5 (JC-0448) 

statement? In our opinion, the rider addressed in Coates v. Windham may be distinguished from 

Rider 63. In Coates v. Windham, the court addressed the validity of the following rider to an 

appropriation to the Department of Corrections: 

The Department of Corrections is authorized to acquire from 

the proceeds of the sale of properties, and/or the exchange of 

properties, and/or from the appropriation for prison construction, 

acreage for a prison site upon which to construct a prison unit. 27ze 

acreage for a prison site shall be acquired only when authorized by 

the Approval Board consisting of the Governor, the Commissioner of 

the General Land Off Ice, and the Chairman of the Board of 

Corrections. 

General Appropriations Act, 66th Leg., R.S., ch. 843, art. III, 1979 Tex. Gen. Laws 2445, 2625 

(emphasis added). 

The italicized language in the rider was challenged as violative of article III, section 35 of 

the Texas Constitution. The court stated that the rider was an attempt by the legislature to regulate 

the expenditure of the appropriated sum “in a limited and negative way” and it “did not, therefore, 

constitute an excessive degree of delegation so as to run afoul of the prohibition against two subjects 

being embraced by one bill, nor did it attempt to confer a veto power on the Approval Board.” 

Coates, 613 S.W.2d at 575. Although the Texas Board of Corrections had “exclusive management 

and control” of matters pertaining to the management and operation of the Department of 

Corrections, the legislature had never granted the board an “exclusive and plenary power” in matters 

pertaining to real property. Id. at 575-76. The court determined that the rider did not impermissibly 

attempt to amend or replace an existing general law, but it also stated as follows: “Had the rider in 

question conferred any affirmative powers or duties on the Board, or had the Legislature previously 

conferred upon the Texas Board of Corrections the exclusive power of acquiring prison lands by 

purchase, we believe that we would be faced with an entirely different question.” Id. ; see also Tex. 

Att’y Gen. LO-96-079, at 2-3. 

Rider 63 presents “an entirely different question” because, unlike the general law at issue in 

Coates v. Windham, section 201.613 of the Transportation Code confers upon the Department the 

power to choose the location of an inspection station, without seeking the agreement of the city in 

which the inspection station is to be located. Accordingly, Rider 63 attempts to amend general law 

and is therefore invalid and of no effect. 

‘Id. at 3. 
The Honorable Clyde Alexander - Page 6 (JC-0448) 

SUMMARY 

Rider 63 to the appropriation to the Texas Department of 

Transportation in the 2001 General Appropriations Act is invalid 

because it attempts to amend a statute in violation of article III, 

section 35 of the Texas Constitution. Section 201.613 of the 

Transportation Code provides that the Department of Transportation 

shall choose a location for an inspection station in three named cities 

and does not require the city to agree to the choice of location. Rider 

63 provides that appropriated funds may not be spent on the 

inspection station unless the Department secures the city’s written 

agreement that the location, plans, and implementation strategy for 

the proposed facility are acceptable to all parties involved. Because 

the rider attempts to amend section 201.613 of the Transportation 

Code, it is invalid. 

Yo rs ve truly, dLcik 

JOHN CORNYN 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN D. GUSKY 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee