DAN MORALES

ATTORNEY GENERAL 

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of tfp I?lttornepGeneral Bbtateoffhxae May 11.1992 Mr. Dan Roberts chairman Texas Board onAging P. 0. Box 12786 Austin Texas 78711 Opinion No.DM-116 Re: Validity of a rider to the current appropriation to the Texas Department on Aging which requires the department, under certain circumstances, to use the service standards, systems, billing, audit procedures, and provider bases used by the Department of Human Services (RQ- 288) Dear Mr. Roberts: You have requested our opinion regarding the validity of a rider to the current appropriation to the Texas Department on Aging (hereafter “TDoA”). That provision, numbered “Rider 9,”states asfollows:

Where servicesunder Title III [ofthe Older Americans Act] and Options for Independent Living are substantially equivalent to those provided by the Texas Department of Human Services Community Care programs, the [TDoA] shall use the service standards, systems, billing and audit procedures, and provider bases used by the Department of Human Services to eliminate unnecessary duplication. General Appropriations Act, Acts 1991,72d Leg, ch. 19, art. II, 0 1, at 686; see Hum. Res. Code $9 101.041- 101.049(Options forIndependent Living). You first ask whether TDoA’s compliance with this rider would violate the federal Older Americans Act and the regulations applicable thereto. See 42 USC. 0930013057n Determination of this matter is ultimately a federal question, and no pronouncement by this office would be conclusive. It is not, in any event, necessary to reach this issue, sinceweconclude that rider 9isunconstitutional under Texas law.

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Article III, section 35 of the Texas Constitution prohibits the enactment of general legislation in a general appropriations bii. See Moore v. Sheppard, 192 S.W.2d559,561 (Tex. 1946);Attorney General Opinions MW-51 (1979); V-1254, V-1253 (1951). A rider to a general appropriations bili may do no more than

“detail, limit, or restrict the use ofthe [appropriated] funds or otherwise insure that the money is spent for the required activity for which it is therein appropriated.” Attorney General Opinion V-1254 at 17 (citing summary). A rider is invalid if it attempts to “confer an affirmative duty” on a state agency. Attorney General Opinion JM-167 (1984). In Attorney General Opinion MW-585 (1982). this office considered a rider to the appropriation to the State Board ofBarber Examiners. That rider stated:

It is the intent of the @]egislature that an interagency contract shall be executed between the State Board of Barber Examiners and the Texas Cosmetology Commission to reduce duplication of activities in inspections, enforcement and **examinatioIl** Attorney General Opinion MW-585(citing General Appropriations Act, Acts 1981, 67thLeg.,ch. 875,art. I, at 3376). The opinion held that this rider wasinvalid, since it failed to “appropriate any funds nor does it detail, limit or restrict the use offunds appropriated elsewhere.” Id at 2. On the contrary, the opinion found that the rider was “a general directive to the State Board of Barber Examiners and the Texas Cosmetology Commission to take specific affirmative action.” Id. The opinion concluded that the rider “constitutes general legislation”; that it was therefore

“violative of article III, section 35 ofthe Texas Constitution”; and that as a result, it was“voidand ofno effect.” Id.at 2-3. In our opinion, the rider about whichyou inquire is similar in .allparticulars to that held invalid in Attorney General Opinion IvIW-585. It requires TDoA to take specific affirmative actions: “use the service standards, systems, billing and audit procedures, and provider bases used by the Department ofHuman Services.” Acts 1991,72d Leg., 1stC.S.,ch. 19,art. II, Q1,at 686. It does so for the identical reason specified in the rider considered in Attorney General Opinion h4W-585: to eliminate duplication. As laudable as this goal may be, its implementation is not a proper subject for an appropriations act rider. We are compelled to conclude that rider 9 constitutes general legislation; that, as such, it is violative of article III,

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section 35 of the Texas Constitution; and that, accordingly, it is void and of no effect. 

### SUMMARY

A rider to the appropriation to the Texas Department of Aging which~re-quires

that agency to zlse the service standards, systems, billing and audit procedures, and provider bases used by the Department of Human Se&es” constitu@s general legislation in contravention ofarticle ItI, section 35 ofthe Texas Constitutions It istherefore void and ofno effect.

DAN MORALES Attorney General ofTexas WILL FRYOR First Assistant Attorney General h4ARYKEUF.R Deputy Assistant Attorney General RENEAHIcKs Special Assistant Attorney General MADEIJ3NE B.JOHNSON c!hdr, opinion committee Prepared byRick Gilpin Assistant AttorneyGeneral

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