# The Attorney General of Texas
August 31, 1979
MARK WHITE AttomeyGemeal

**FIonomble Wi@am**  **P.** Clemen& Jr. Gova’nuroftheState(dTexas state captto1 AustSn,Texas 78711
HonorableBill Rearal Chai?U&Wl Committee m &woprhtiom House of Representativea hutin, Texas 76769 OpInionNo. 24w-51
Rer Authority of the Governor to veto certain mlons of the General ApprcphtIcns Act

lionomble Homer A. Foerster RxecuHveMreota ~StdeBoarddCUltWl LBJState Offioe Butlding hwtin,Texsa 767U
Gentlemar:

~anybillpresaateLttotheGov~~~~recraal

**itecarofap~ionhcmayobfcct-tooncormorc** of such items, and eppkve the other poetica of the bill. InsuchcaseherhalleippendtotkbiU,~ttbe time of signin& a statement of the itema to which he~f2ctq and no item so djected to shall teke

. . . Thus, the Goveax& authority to veto podons of the appropriations bill extend only to “items of approprlation.n In determining whether a

P. 156HonorableWilliam P. Clemks, Jr.

HonorableBill Presnal - PageTwo (Mw-51) HonorableHomer A. Foerster

portion of the eppropriatiaw bill constituted en item of appropriationend was thussubject
‘to Vetothe Supreme Court recently state&

It can be add then that the term Item of rpproprhticn’ cantempletes the setting aside or dedicating of funds for a specified purpose This ipto be distinguIshed from language which qualifies Q directs the tne of w&ted **funds**Q which h merely incidental to en mtiab. laqwge **of** the letter sort is cleerly not subject to **veta**

. . . . U the lmguege & intended to set e&e fuM3 **for** e rpecifkd 

### pur pape, it Lp sn Stem **of** 

### l pprcpdation’

end is **therefore** aubjeet to veto by the Governor. Otberwbe, the Governor must veto the entire bill ‘orlet the objectionablepart stand,
. . . Jesen Associates, Ik. v. Bullock, 531S.W.Zd 593,599 (Tex. 1975).

The ally edditfalel *uthoruy to lBappd@ 8 bill in whokisthet given to object to M item or Stem8where a,bill contains several items, of eppropriatia It follows ccncl@vely thet where * veto ~poweris attempted to be exercised to objeM to ,a paragnph or ~~of~btllothathanuritcmor,ittms,ortotanguagt qualllOtneM~t~adf~.ths,methodcdits~he exceeda * constltt@mel 

### l uthc+ity vested in him, and his abjection to such paregmph, **or** portion **,of** a bill, or language qualifyin& an approprfatiar, ar directing the methokof Its use, becomes noneffective.
Fulmore v. Len+ NO saw. 405,u2 clb. l9lll. see ekwAttic Generel opinsons16499 ?l972X Y-1196 UQSI). Representative Presnel questions seven specific vetoes. The first ,portionof thc.bill whichis the subject of a questiartd veto ~videsz

The Bowl of Regents of The University of Texas System is hereby authorized to wd such ‘amount of its PamaneM University Fundbondproceeds and/orother bondproceeds end such ernount,of its other available moneysus may be necessary to fund, in whole or in pert, alterations and additions to the Sun Bowl

p* 157HonorableWilliamP. Clements, Jr.

HonorableBill Presnal - Ps6eThree (JJW-51) HonorableHomerA. Foerster

Stadium which k located on tha campus of The Univ&ity of Texas at El Paso.
In all relevant respects the lan6uage of this rider k identical to the riderbefore the Supreme Court in Jensen. See P&c. Cede 9 6LO58. Accordingly, we believe it k beyond question that the-shad no legal authority to veto this rider, and thus the purportedveto MS noeffect
Governor Clements asks if the rider violates article VI& section 6 **of** the canstituUon which requires that epproprhtiats be specific. Since the Jemen court con&&d that thk langnsge did not constitute an independent appropriaek not necessary to measure it agahwt the requirements of article VIII,section 6. See also Jemen, supra,at 599-600, II. 8 for a description of types of funds which mightbe covered **under** the language of the rider. Discussion **of** specific appropriations are found in National Biscuit Co. v. State, 135SW.2d 687,693 &x. 1940)tit k not necemary that an eppropriaticn dasi9nste a certain sum or even a. maximum sum to be specific); AGcins v. State Wiiway Denartment, 201,S.W. ‘2260’~ Civ. **App.** - **Austin** 1918,no m .approptiation of all funds coming from a named source k specific); Attorney General OpinionV-l267;(l951)

(appropriationof en uncertain amount of money in a special 

### fund for a named purpceek specific); Attorney General OpinionV-887 (1949)(appropriation

### of all lkenae fees received undera particular act k specific).
The Governor also suggests that any improvement

### ‘of the ~eounty-ownad Sun Bowl with state **funck**~wouldviolate article iU, section 51.of the Texas ‘Cumtitution which **provi&** inter elia that the legklature ~hssno power to authorize a grant **of** public moneys toZiiiiZ& corporatim The details of any improvements are not before tu so we canno%

say that all cane&able pr6jects wauld he permissible; however, the University of~TexasatRlPasokthelong-termle&eeofthestadiumanditmayba~y anticipated that it will receive substantial benefits from alterations and edditkms to the facility. **Acts**1967,57th Leg., ch. ‘13; at 23. If the University receives adequate benefits, it k not prevented from making apenditures which mayincidentoRy benefit ths County. Attorney General GplnionH+3 0974).
The next provision in question is: (47) The Texas Department of Human Rewnmxs kh=eby authorized and directed to construct a state office building, in cooperatfcn with the State Board of Control, cons&kg of NTR 530,006 gross square feet (400,000 net square feet). No General Revenue, Children’s Assistance, 01‘ Medical Assiitance **funds** may be tned **for** this purpose. It k the intent of the Legislature that the building house the central administrative offices of both the Texas Department of

P- 158HonorableWilIiamP. Clements, Jr.

HonorableBill Presnal - PagePour (NW-51) HonorableHomer,

Ai Foerster

RumanResources and the Texas Youth CounciL Further, it k the intent of the Lcgttlature that the buIldin. be co&meted on State land currently owned by the Texas Department of Mental Health end Mentd Reterdatkn, The Board

### of Mentsl Wealth and Mental Retardatico k hereby authorized end directed to 

### traM!er to the State Boerd of Control record title to a certafn trhnguwhaped tract 

### of land 39 acres, mare or lem, in ths north part of the City of Austin, tam&d on the west by West GuadalupeStreet and,North Lamnr Boulevard, on the north by Slst Stree& on the eastby ~Guadalupe

Street and having the southern Up of the tract at the intersection of Guadalupe and West Guadalupe Streets, together with all records held.b it concerning this tract
These two paragraphsdo not constitute an “item” of wropriation under the test esteblished in Jemen. They da not set a&e or dedicate funds Instead, tMms directs and qtixthe tue of fumkappropriated elsewhere. See Jesren, 606 (Supreme Court found

### fact that fundswere appropriatedelsewhere was % ncant in determining that the provkion was not an item .ofappropriation and thus was not subject to veto). It prohibits the use of certain categories of funds 

### for &nmtruction of this buiiding, and it ef!ecUvely directs the tue of funds 

### spproprieted ittother portions of the **Act.** Accordingly, the Governorwas without euthority to veto thisprovision.
The Governor asks a series of questian? rsgardinS eemed federal **f&s,** which it .k entidpated will be the source of revenue **for** the construcUon~ofthe build@ listed in the rider. Bernedfederal fundsare generated by reportingstate apendftures for servSces to pemons eligible **for** certain federal prcgrems gnd by olaimirg federal matching **funds**

### for those servkes. The earned federal funds are .arbject to appropriationby the legkigture and have in fact been appropriated. Se 9 ert. n, rider (6) et R-52, art. v, ‘019. The po$kn **of** the eppropri&iousact 

### reflect the method of fh’mnchg the Department of HumanResources apprcpriation indicates that $60,650,000 has been appropriatedto the department for the next two year% from earned federal **funds** Thk gmount reflects only the portion of the department’sitemized eppropriatiOn coming ,fromearned federal **funds.** It does not include any funds for the construotion **of** the buildirgt however, ell earned federal fundsare appropriatedby the sixth rid&to the dspartmentk appropriation. Thus, ths amount 

### of earned 

### federalfunds the department may spend is not limited to the 660,650,OOO

shown in the method of financfrg descriptlen. the ‘$60,650,000appropriationmay be spent for the **Addit(onel** funds Snexcess of constrgtion of a buildii within the limits set out,in the rider whichthe Governorsought to veto.
The third provisionin question k
The State Board of Control shall establish a maximum and a minimum monthly charge for state employee parking of $16and $6 respectively for facilities within its jurkdictton. The Board k

p. 159HonorableWilliam **P.** Clements,Jr.

HonorableBill Presnal
. - PageFive (Mu-61) HonorableHome?A. herder

euthorized to charge varying rates within the above limitations baaed upon ths type and loeatiti of parking space made available +cepted bya date employ* 

### Thk provision

does not set 

### asIdeor dedicate funds for 

### anyputposerso it k not an item **of** appropriatiar andk not sub&at to veta
Tha Poard **of** Control has ,ashed if it **k** prohibited 

### fromestablkhing ‘a minimum par&in6 rate which k **bw,u** thm the six dollam per month set out In the ?ider. In essence theBoardkaMngUtheriderkvali&
lt k well established in T& that [iJn edditian to appropriating money end ttipulating the amount, manner, andpurposeof the various items of expenditure, a general eppropriatkn bhl may contain “p provision Q riders which detail, limit, or restrict the use **of** the umk or otherwke insure that the money is spent for the required nativity for which~ it k therein appropriated,

### ifthe provisions or ridersSn peeesar 

# provided they donot

# conflict

with general legkl8uan.
Attbrn+ Genersl Opinion V-l234 (Nil).
This ride neither eppropriates nor deteils, limits or testrjcts the use of f&s. It k instead 

### a generaldirective to the State 

### Boardof Controlto we certain affirmative 8cU0n,

### andit maynot

### validly beincluded in tha General~ropriations Act Accordi@y, **the Board** **of** Control las tha authority to set parking rateam@r the authority gmnted it hy sectian 30 **of** article 678t, V.T.C.S., and it k not limited to the minimum and **;r~itguxml)mtes et**  out in the eppropriations act. See also 37-e By 1673, 68th Leg.,

. . The next two provkions **of** the Act rdse identkel issues They ares Fundsepproprietedto The University of Texas et &II Antoniofor the fiscal yrxy ending **A-** 3l,l979 are hereby reappropriatedfor the bknnium ending **August**3Ll98L



### . . . . See. 15. Any unexpended balances as 

### of August Sl, 198.0,not otherwke restricted and ,remaining in the various item&z

### of appropriatiau to the Youth Council and tk institutions under its jurkdiction are apptiopriated for’ the fiscal year beginning

p. 160HonorableWilliamP. Clemenls, Jr.

Honorable

Bill Presnal - PageSIx (MW-51) HonorableHomer A. Foerster

September 1,1980, **for** construction projects and major repairs. The fundswill be restricted to ths followingr
YOUTH COUNCI& RUILDING ANDREPAIR

PROORAM
L Repair sewer lift Station at West Texas ChIldrenb Home NTR,$33,000. 2. Repair cr repkcement of institution&l streets, perhing ktS, curbs andgutters, tjTE6225,000.
These two provisions appropriate funds remainingunspent from the prior biennhrm’r appropriationto the two agencies. It hasbeen suggested that.the kngusge merely directs ths ‘we of **funds**appropriatedelsewhere, in this case in the prior epproprintions sect The 19784979 appropriations, however, expire on **Atqust** Sl, 1979. Acts 1977, 65th Leg., ch 872, et 2699;z Tex. Const. art. Vlll, S 6. Ths 1979-1980 epprupriationaart rot available until 8eptegbe.r l, 1979. The two provisionsset aside or dedicate funds for a specific use. AamdingIy, they are items of appropriationandare subject to veto by the Covernor.
The next provision you have questioned Is in the portion of the Act relating to the Departmenl of Highwaysand Public Transportatiot~ R providesr

in order to insure the maintensnee, preservation and cuutructkn of a system of highways roadways ed streets within the stete, there shall be $ progrem dfsigmd to eccomplish improvements in traffic flow tid design in cooperation with the polttical subdMskm of the state eind in .conmmce and furtherance of federal wway polky to repante cco@sted, hasimbw end dangerow gmde intemeeticns of highways and ‘railways with the ultimate .objective of eccompllshing a sepemUan of ‘the two gro4md transportation F ems ‘and there is. hereby ~appropckted Pive MUlion Dollars $5,000,000) per year from the General Revenue Fundto accomplish theqe objectives Providedfurther that general revenues **of** the state appropriated for the fmpkmentation of this ridershankmimbursedtathcStatcRraangrhould.f~ralf~ ,beeome evaikhle for these pue The Sate Dep&ment of Highways and Public Trensportation shall have’ such power and authority .to eccompIish said objective ss necemary and shah .,administer funds from the general revenue of the state as appropriated herein, together with funds provided from **.fe&ml** sources; furthr, the Department shall set up administrative rules, regulations, orders and stemlards to administer the outlay of such funds, and shall determine a priority for orderly implementntion of the separations to be undertaken. The legislature spproprhted a large lump sum for contract construction. See item 3(d), p 111-85. That sum includes SS million per year from non-general revenue rundsfor

P. -161Honorable

Wiliiam P. Ciements, Jr. Honcmble Sill Presnal - Page Seven (M+511 HoncmbleHomer A. Poerster

grade separations. The paragraphwhkh was vetoed and is reproducedabove provides an additional$5 million per yeer fcr this purposefmm the general revenue fm& It 

### Indicates that a specific amaunt is apprcpriatedfor 4 qxaifk purpom The language does not refer ta fundsappropriated aisewhere in the Act Accordingly, the sentence apprcpriating $5 milk0 per year from the general revenue fund was aubkct to veto. The approprktion from nongeneral revenue fundsis, of comae, not affacted by the veto.
The final veto in question involved college buildingfunds Tha language whkh the Governor

sought to veto providesr
sech CO&EQE EUILDMQ FUNDS. ’ There also are appropriated**far** use the allocations from the buildingfundscreated by Article VU,Sections l7 and 18, of the State Constitution, to the respective institutis and**for** the Ourposes specified therein.
All of the funds~

allocated by article VII,section 18are appropriatedelsewhere in the Act, see General AppropriationsAct, pp. III-28-El-29, and thus are not subject to veto.
Tim final qucstian,‘then, is whether the article VII,section 17 funds are subject to veto. Whilethe language of artkle lV, section s’of ‘the appropriaticns act wouldtypically be subject to veto, the **funds** may be appropriatedby the constitution itself. If so, any further appropriation would ba unnecemary and the **funds would**  be beyond the veto authsrity.
Artkle VU, ae@on 17 **of the**  **Texas** Constitution imposes an ad valorem tax and p~tides a serka **of** formulae by whkh the funds are to&be allocated’among several state m@po+ed colleges and universities. The governing ,bo&ds of :the instituticns are Urthorizedto pletQe funds allotted to each institutkn to secure bonds and notea. Article w,sectkn17goesaltoprovidez

The State Comptroller **of** Publia Accounk shall draw ail necc~andpcparwMantruponthcstatcTreasurpkordat0 carryoutthepurposcolthbAmcndmcnt,urdthtStateReMurer rhanpayrruranBn,igU6dOUfOrtharpcc.~fundhercbycrcated for aaid putpose. TtdsAmendment ahall be aelf-enactin& ,. . .. An earlier version of this amendment was considered by the Attorney General in Attorney General OpinionV-798 U949). The Attorney General said:

There is, neceaserily involved in your request; though not definitely pzsentss& the question of whether or not these funds are subject to legislative appropriatiar as a prerequisite to expenditure by the c+ge.s. We *em it appropriate to answer that question now. The answer k in the negative. This Constitutional

p. 162HonorableWilliamP. Gleme&, Jr.

HonorableBill Resnal - PageEight ~~-31) HonorableHomer A. Poerster

Amendment, by its exprem terms, is self-enacting in aii of its details. It specifically lcvic~ the tax, designates the use to nMah thefundcrecrtedbythetaxic*gshallbsapglicdbytheBoardof Regents, and dlmcts the Comptrolier to issue and the State Tmasumr ta pay warrants dnwn ~uponthis special **fund** thus created. An appropriaticnin a ccnstitutional sense may be by legishtive act cr constitutiaul declaration. This ir of the latter chss. The effect of thi apliait dimctions found in this Gonstituticnal Amendment, now a pert of ths organic law of this State, levying the tsx, creatiq a special fund from such levy, qmcifying the purposes

for wtich it may be spent, anddirectingthe manner of its dtsbumement, &early remove this special fundfrom the limitatiaw of Article WI, Section 6 **of** the Constitutionof tMs State, which providew940 money shall be drawn from the treasury but in pursuanceof specific appropriation made by larv;nor shall any appropriationof money be made for a longer term than two ytars’
. . . Since these **funds**are appropriated bythe constitution they ere not subject to veto. SUMMARY
The Govemor validly vetoad prcyisions of ‘the General **Approprhticns**Act reapproprhtiq unended ,balancesfrom the ghcedhg ‘biennium to the ,Tera+ Youth Council and ,to the University of Texas at San Antonio. He also had authority to veto an appywhticn to the Department. of Xighwqs and Public Tranqodticn ta pay **for** grade separations.
Four attempted vetoes were outside the scope **of** the Gova&(s authority andare void. These includaa veto of provisionsralating to the Sun Bowl stadium, parking fees charged by ,the Bosrd **of** Control, authaizatim, of aPanditures **far** a building to be -ted by the Department cf Human Bcsoums building **funds** andcollege

A rider directing the Board of control to impose certain parking fees ~ls invalid since it is an attempt to enact general legislation in the approprjations

act 

# >~pbfPUK~

!dARK WHITE Attorney General of Texas

P. i63Honorable William P.Clements,Jr. Honorable

Bill ptesnal - PageNine (MW-51) Honorable

Homa A. poerster

JOHNW. FAINTER, JR. First Assistant

**Attorney** General
TED L. HARTLEY ExecutiveAssiitant Attorney General PreparedbyC. Robert Heath Assistant

Attorney General
APPROVED: OPINIONCOMMITTEE
C. Robert Heath,Chairman DavidB. Brooks Susan Garrison PaulGavia Rick Gilptn Terry Goodman WiIIiamG Reid DavidH. Young BruceYoungblood

p. 164