August 25, 1951

Hon. Allan Shivers Opinion No. V-l.254 Governor

of Texas Austin,

Texas Re: Validity of "riders"

in H.B. 426, Acts 52nd Legislature, 1951; the general

appropriation bill for the biennium Dear Governor

Shivers: endingAugust 31, 1953.

In your original.

requestfor an opinion you asked that we studythe legality and ccmstltutionality of the riders in HouseBill 426, Acts 52nd Leg., KS., 1951, snd adviseyou as to our concluslons as early as possible. In subsequentconferencesyou Xndlcatedthat'ymsrs primarily inters*ed in sscuringthe rulesoflawapplicabls ln&tendningthslegality
or constitutlomllty of riders In an approprlatlon bill. You s'kated~that

in vlew'ofthe h&ding In Fulmo& v. Lane, 104 Tex. 499, l&C SiW. 405 (19l.l) and Att&ney GenerBl's Opinion

No. V-1196 (1951)that the Governor has no authority

to veto a nonappropriating

ri$er In an appropriation bill, you are particularlyconcernsdajmutthe growlngtendencyt~rd "governmen by riders'

and desirea general *ateme& of the rules of law applicable

to rldsrsratherthan a specific ruling on each separate rider. With this in n&&we shallpresentthe general rules.and

refer to specific

riders only by'way of illusttition
as to howthg general rules are applied.
Gsne++y speaking, the constitution@.

provision limitdng

t&. scope of riders in gsneral appropriation

bills and the power of the Legislature with regardthereto is Section 35 of.Article

III of the Te%as Constitution: In addition, Section1 of ArticleII is sometimes applicable.

The historyof Section35 of Article III and discusslons,b$

cont.emp+ry jurists give an insight into the evils which ~rs intended to be corrsctefl

by its adoption. Sect&n 35 p~oviaes:~

."No bill, (except

generalappropriation bills, which may embrace

the various subj&ts ad accounts, for and on account

of which moneys are apprdprlated) shall contain

more thsn one subject, which shall

be expressed

in its title. But if any subjectshall be embracedin an act, which shallnot be expressed in

## 158 Hon. Allan Shiv-eSS, PW3e 2 (v-1254)

the title, such act shall be void only as to so much thereof,

as shsllnot be so expressed."

A similar

provision

originally

appearedin Section24 of Article

VII of the *eras Constitution of 1845 as follows:
"J?xerylawenectedbythe Legislatureshallembrace but one object,sndthat shallbe expressed in the title."

Thiswasthe first time inTexas historythatanattempt was made to control the title and inclusiveness of legislation. The Constitutions of 1861, 1866, and 1869 carriedforward the wording

without change.
.Indiscussingthe

be&groundoftheTexasprovision cplef Justice 0. M. 'Roberts, a memberof the 1866 Convention anda contempoFaryofthisperlod, said:

Yl!h%sprovl+xa

inthe Constitutionor~giaate~ in, andwas adoptedtopreventthe repetition ofamost flagwit cibue of legislative power inthe State of Georgiainthe la¢ury. Its historylsbriefiy sketchedinenopinion&eliveredinthe Supreme court of that State,a6 follows, to wit: *As to the objectionthat the act of l&is violative'ofthe 17th sec. lst art. of the Constituti&of Georgie,becausel~e tit~"la at variance with the body of the cd, I would obeervethatthetraditionaryhietorJrofthis clause ls,'thet

it was inserted

in the Constitution of 1798, atthe'iwta&e of'GeneralJauk?sJackson, andthat its necessity

was suggestedby the Yaeoo act. 'That meiwrable

measureof tti~li'th of Jsne, 1795; as ie&.lknown,wwe smugg&edthroughtheLegislature under the captian.of sn act, "for the kymsnt of & let& State troopa," and a declaration

in its title of the right of the State to the unappropriated territory thereof, "for the protection end support

of Its frontier settlements." (Mayorsnd Aldermanof Savannah
v. The State of Georgia, 4 Ga., 38.) This obnoxious act was repealed'the next year, and the large grant of land to private individuals embracedin it declared. null and void for fraud in its enactent. This z&t becams stillmore notoriously memorable

by its tibjedmatterbeing litigated, and its history

being developed in the report of the leadingcase of Fletcher v. Peck, decided

by the Supreme

Court of the United States in 1816. (6 Cranch, U.S., 87.)Hon. Allan Shivers, F'age 3 (V-1254)

"Hencethis provisionlimitingthelegislative power,hasbeen adoptedinmnyif not most of the Constitutions

of the different

States of ths Union. djlngs v. San Antonio,47 Tex. 548, 555, ;5i &3;;.-

In 1851 the Texas'Suprene court, in an opinion by Chief JusticeHemphill, held that Section24 of ArticleVII rasmlaatory,notmerelyairectory.

The evils to be avoided by this constltutionallimitationhave been discussed in iumerous

c&es. Typical of these discussions

is the following

from Stons v. Brown, 54 Tex. 330 (188lrat 342, in which the Supreme Court of Texas said:

"Ths principal

objectof this constitutionalprovieion la to advise the lsgislaturs tid the people of the naturs of each particular bill, so as to prevent the insertion

of obnoxious

clauses,

which other@e might be engrafted thereupon

and become the law; and aleo $0 preventconibinations, whsrsbyw+dbs concenttitedthe votes of the friendsof differsntmeasurk .f nohe of which couldpass singly; thus causing

each bill to stand on its own merits.3

In Cooleyts

Constitutional

Ll.mi~at,ions

(8thEd. 1927) 295, ths purposeof the constitutional provision

is -ised
as follows:

n

. . . It rcay.therefore b assumed

as settled that the purposeof thess provisions was: first,to :prevsnt

hedge-podge

or 'log-rolling'

.&egisl$$; second,

to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title,s,

.g .Georgia

was the first State to place this type of limitation in its constitution. There are now 41 Statesthat have provisions

of this general

nature. &ly connectic.ut, Maine,Massachusetts,

New Bampehire,

North Carolina,

Rhode Islandand Vermont are without it. ConstStutional Limitations

upon Statute Tltles.in

Louisiana,

6 La. LA 72, 78 (Comment 1944).

g Cannonv. Hemphill, 7 Tex. 184 (1851).
.1/ Similargtatements are found in the g&era1 treatises,of Freud, Standards

of American

Legislation,

155, 156; 1 Sutherland Statutory

construction

(3rdEd. 1943) 287, Sec. 1702; 1 Cool6yle Constitutional

Limitations

(8thEd. 1927) 294, 295, 296.Hon. Allsn Shivers, Page 4 (V-1254)

gave no Intimation, and whichmight therefore be overlookedand carelessly andunintentianally adoptea; and, third,to fairlyapprise the people,through such publication

of legislative

proceedings

as is usually made, of the subjects of legislation

that are being considered,

in or&r that they may have opportunity of being heard thereon, by petition

or otherwise,

if they shall so desire."

In 1 Sutherland,

Statutory

Construction

(3rdEd. 1943) 290, it is stated:

".

. . It prevents the surreptitious

passageof laws containing

provisions

incongrous

with the subject proclaimed

in the title. It militates against 'omnibus,'
or multi-subject

legislation,

the practise

of procuring dlves~ anduurelatedmatterstobe passedas one act through

the consolidated

vote of.

thcadvocates of each separate

maasure,whenuerhausuo sinale measurecould ha& been pasf&~oz.i its-own merits. It also prevents the attachmsut

of uudeeirable!riders~upon:billekektaln to 'be'

passedbeeause'of

their .~lic,~~ ity oFdesirability." (Emphasis added throughout:) "'

The last sentence

above quoted frOm Sutherland is. partlcula+y applicable to geueral

approp&tion bills.. It is c&tAinthattheyare desirable and.iufad necessarylegislii+,ion.

Asausu&thiug,thist~ ofbill comesup fo+&ui +?T8tion late III

the E~SS~OII

and mu& bepassed. Ev&;permissibli and appropriate ridersare often attachedin conference committee,

and the entire

bill is submitted

to the House slid

the Senate on a."takeor leave it" vote. Iu such instances, there is no opportunity

for-public

notice,full discussion,~amsndment, or elimination

of a particular

rider. Legislators are called upon to vote for the entire bill as drafted

by the conference committee

or vote against

the entirkbilli

In the samsmanner, the entire general

appropriation bill is submitted

to the Governor. Ik can veto appropriation items and riders,

but he doe6 not have the power to veto nonappropriating

riders. Attorney

C+eral's opinion

No..V-llg6 (1951). If an objectionable matter of generallegislation is contained

in a non-appropriating rider, the Governor must neverthelessaccept it or else veto the entire general appropriation act. :This

he can seldom

affordto do.

The constitutional imitation

now under consideration
was aimad at praventing such situations.T,his was stated

by theHon. Allan Shivers, Page 5 (V-129)

Supreme

Court of PennsylvanIa, a Statewhich has a similarconstitutional

provision,

in Commonwsalth

v. Barustt,1% Pa. 161, 48 Atl. 976 (lgol), as followsz

11

. . . by joining

a number of differ& subjects in
one bill the governor was put under compulsion to accept sons enactments that hs couldnot approve, or to defeatthe whole, including othersthat he thought desirable

or even necessary. Such bills,popularly called *omnibus

bills,'

became a cryingevil, not ouly from the confusion

and distraction

of the legislative mind by the jumbling together

of incongrous

subjects, but stillmore by the facility they afforded

to corrupt combinations

of minorities

with different

interests to force the passageof bills with provisions which couldmver succeedif they stood,onthsirseparate merits. So,~omon was this practice that it got a popular

name. universally

understood,

as ~logrolling.' A kill more objectionabls~practice grew up, of putting what is known as a 'rider'(that is, a new~and unrelated enactment

or provision)

on ths ~appropriationbill~, and' thus'kokrcingthe

executive

to approve'obnoxioilslegislation,or bring the wheels of.ths government to a stop for want of funds. Thesewere some ofthe evilswhich the later changes

in the constitution were intended

to nm?dy*

. .." Again with specific reference

to the reason for this type of constltutlonailimitation in the case of appropriation

. bills,tha Suprkts Court ofOregon +a:

The evident

purposeof this provision was to prevent

msttersforeign

to the general purpo* of appropriation

billsbeing attached to them as riders, therebytakingadvantage of the necessity

of the state for money to defray its current expenses

and to pay its officers

to pass measuras

that perhaps

would otherwise have been defeated." Evsnhoff v. State Industrial AccidantCommission, 154 .Pac.

106, 111 (1915).

Three changes

were made in the wordingof this Article IJA the c~stituth of 1876. The provision was moved from the General

Provisions

section

of the Constitution to the Iegislative Section

where it became Section35 of Article III, with the wording it has today, It is quoted in full on page 1 of'this opinion. The reasonsforthethree changes are readily

apparent. The exception

made for appropriation bills was to insurethat no court would hold the appropriation for each subject

or accountHon. Allan Shivers, Page 6 (V-3254)

a separate

generalsubject

and as a result i-squire a multiplicityofappropriationbills; audths savingclauss was addsdto preventthe striking downofths whole ofths Act. The other basic chauge,

from the use of ths word "object" to "subject," has been explained

as ping an attempt to m&e the whole provision less restrictive. The general purpose

and objectof the constitutional

provision

remainsdths ssms.

In dealing

with Section35 of ArticleIII, a ruls of liberalinterpretation has always

been applied. Ths tendency of the dscislons

is to construe

the constitutioual

provisions onthis subject

liberallyrathsrthanto embarrass legislation by a construction

whose strictness

is -cessary to the accompllshmsnt

of the beneficial

purposefor which it was adopted.5 But at the same tims the Courthas been carefulto point out, as was orlgiually

dons by Chief Justice Hemphlllin Cannonv. Hemphill;

7 Tax. 184, 208 (1851), that t&is provision canuot be ignored

and thus nullified.
,With reference

to general

appropriation

bills, ths SupremeCourt of Texas has held that "the appropriatingof funds to be paid from the StateTreasury is's ~mibject~~withiu he 2 mesuingof ArticleIII, Ssdion 35, of oul.constitution." It is clear frouths terms of the constitutional provision

that geueralappropriationbillsmay containmorethan ens subject of this sanbs

nature,i.e., appropriations for the variousdepartxfsnts

and accounts. The exceptlou of general

appxopriation bills from the constitutionalprohibitiou against

bills.contaiuing more than one subjectis a limited and restricted

exception. The exact wording Is

"

. . . except general appropriation

bills,which may embracethe various subjects and accounts,

for and
on accountof.which moneysaFe to bs appropriated II

. . .
As long as a gene-1 appropriation bill includes

only subjects

of appropriating

money and likiting

the use thereof in harmony

with general

legislation,

it may relateto any numberof

UJ 'Stone

.v. Brown,~ 54 Tex. ,330,

341~(1881),

and Travelers Protective

Association

of Americav. Ziegler, 250 SiW. lll5, I..u~, .(.Tex. Civ. App. 1923, error ref.).
I/ Giddings

v. San Antonio,47 Tex. 548 (1877); Dellinger
v. State,28 S,Wi2d 537 (Tex. Grim.App. 1933).

q Moore v. Sheppard, 144 Tex. 537, 192 S.W.2d 559 (1946).Hon. Allan Shivers, Page 7 (V-1254)

different

"subjects

and accounts." In suchimtancesallof the subjects

a.r$ under the one general pbjectand purpose of appmprfatingfhde fromthetreasury. !i!he obviou?

purpose

of this l.kited.~xceptionwastolPahe certaintb&.appropriations to more than one department in the same bill would not be prohibited. In all other respects general

appropriation

bills
are subject

to the 88013

prohibition

as all otherbills against contalnlng

more than one subject. The result is that general legislationcsmotbe embodiedulthina generalappropriation bill. Moorev. Sheppard, supra.

A generalappropriationbillmaybe deflnedas a single bill which appropriates funds for two or more departments,subjects, accounts,

or purposes. Ithasthe one general purpose

or mbject matterof appropria&g money.7

Oenerallegislationdaagmorethanappmpriate money andl+titsexpsImtllre.

a opipron

No. 2965 0935)p AssaidbyafonssrAtto~yGeneral

*

. . . iithcBilldoeemonthansetael~a~of monsy, providethe means of its.'di&ributlon, and tO vhom it shall

be distributed,

then it is .a

general lav...;"
Thus,the distindionbetvpen~ralappropriatian bU and e=nersl

lagi+Wion has been r+tgni+ iri thie state Inthe ~h@lefactthatthe formrmerely@ts apa$suq of' molrapf~gaAfic obJ+ganduseswhilethe lattardqepmore than+Myappropriateandlimittheuse~f~iunds. C&neral legislationConstituteea seuarate

m&S&t andcannotbe lnclkdwlthlna generalappr~priakmbiil. Moo&v. Sheppard, supra; Att'y Gen..Op.

2965, mpra.
This does not mean 4hat ge!qal legislation may not containanappropriatlanwhichismere~ incidentaltoaudnecessexy to carry out the subject and purpose of.thegeneraljaw.

u The Arizonfr

S&ems Court has said:- The generalappro-. priationbillieno~ inthetrue sense of the Wxqlegislation; it is, as the lauguage Implies,

merely a setting

apart of the fundsnecessary

for the use andmaintenanceof the v&riousdepartmznts of the &ate government already inexistence andtiction~ ins." Sellers

v. Fn&miller, 24 P.2d 666, 669 (Aris.Sup:l933). TheNevadaSup- Courthas said: 'The?+approp~iationbille~
as indicated

by the titles,are p+sed fv cpp+ ef the s+&egovernment,

and are pot legislative acts changing

tk, +zbstantive orgenerallaws.

. . ." slip: 1913). Statev..Eggem, 136 Pac. 100, 101 (Nev. . ..Hon. Allan Shiv'qs,

Page 8 (v-129)

Attorney

Censral*s

Opinion

No. 2965, supra. Neitherdoss it meanthata generalappropriationbFUm~~ynotcontain~ral provisionsaad.~taFlslimitingandr‘estrictingt~ use of the fundstherein

appropriated,

if.such

provisions

are necessarily connected

with and incidentaltoths aooropriation and use of ths funds and if they do not conflict iith-or.

amountto general legislation.

Conley v. Daughters

of the Republic,

106 Tex. 80, 156 S.W. 197 (qu).

Th? generalrulewith reference to all billswas stated by the Supreme

Court of Texas in Phillips v. Daniel,94 S.W.2d 1193, llfl'(Tex.

Civ. App. 1936, error ref.),as follows:

"The law is settledthatunderthe Constitutional provision

referred

to @tlcle III, Section3fl auy number of provisions

may be contained

in the samsbill or act,houeverdivsrsatheymaybs; the only requirement beingthatthsyare conslstentuithths generalobJect
or subJect,andhava amutualralationsndconnsdion, dQedlyor indirectly,withths generalsubject or object of the act or bill."

With special

regardtowhat incidental provisions

may bs included

within a general

appropr~iation

bill, our Texas courts have not stated

a general.rule. .I@ever, from statements as to what may not bs included and from numsrous

opinions

of the AttornqGeneral,ve~belie~the ru&sniqbe state!generally as follows:- Inadditiontd appropriatingmoneyandstipulatingthe amount,

namer, and purposeof the varlous~items of expsnditure,
a general

appropriation

bill may contain

any provisionsorelders which detail,

limit,or restrict

the use of the funds or othsrwise inkrethatthemoneyis spantforthe requiredactivity for which It is therein appropriated,

if.the provisions

or riders
are necessarily

connected

with and incidental to the appropriation and use of the funds,and provided they do not conflict with general legislation.8
g Attorney

General's

Opinion

No. 2965 (1935) says that we' should be governed

by the ordinarily

accepted

sksaning

of "Appropriation

Bill" and quotesas accepted definitionsthe

following: "*A setting

apart from the public rsvenue of a certain-aim

of money for a specific object in such a msnnerthat the executive officers

of the government
ars authorized

to use thatmoney.andno more for that object and for no other.' C.J. -iol.,~4, pa@ 1460. "Webster

defines

an appropriation

bill as follows: "'A measure

before a legislative body authorieing the expenditure

of.public

moneys and stipulating the amount,

manner,

and purpose of the various items of expenditures.'"Hon. Allan Shivers, Page 9 (V-1254)

In support

of this generalstatement of the rule we call your attention to the cass of Lindenv. Finley,92 Tex. 451, 49 S.W. 578 (l&p), in which the Suprenw Court of Texas said: "There is nothing in the Constitution which prohibits

the Legislature from limiting sny appropriation

by any apt words exprsssive of their intent." Also, in Conlsy v. Daughters

of the Republic,106 Tex. 8C, 156 S.W. 197 (1913), the Court uphelda provision in &general appropriation bill which required that funds appropriated

thereinfor improvement of the Alamo property were to be expsndsd

upon approval

of the Governor. The Court said:

"It cannotbethata separate and independent

law wouldbe necessary to directand control the expenditure of every item of appropriation."

Courts of several

other States

with similar

constitutlonalprovisions

have appliedthis general rule. A riders

that limited

expensesfor transportation, lodging

and subsistence

to
a $5 per day maxlnnna was held valid in New Mexico. The Suprsms Court ofthat'.State said, "!l!hs

details

of spendingthe

money so a~~~~d,~irhichslp necessarily connsctedwithand.

. .

. . . don0tviolatethe Ccmstitutionii incorporated in such general

appropriation

bill." Whittier

v. Safford,

214 Pac. 759 (N. Msx. Sup. 1923). The Mississippi Siiprems

Court has said: :Ths legislaturs can provids in bills makingappropriations for the expenditure of the monsy, andths conditions on whicli.it

maybe drawn+e~thetreasory, add for the administration of the fund so long'as the machinery

createdis'limitedto ths appropriation

so made." Trotterv. Gates & Co.; &I So; 843, 846 (Miss.Sup. 1932). TheSuprsmeCourtofi4ontana,inholding that a rider inanappropriationbill changingthsmethodof paymsntout of a designated fund is valid, said, ".

. . so long
as incidental

provisions

of an appropriation bill are germane to ths purposeof the appropriation it does not conflict with any Constitutional

provision.

. . . What valid objection can bs interposed

to such a course,so long as the Legislature confines the incidental

provls.ions

to the main fakt of the appropriation, and does not attemptto incorporate in such act generallegislation, not necessarily or directly

connected

with the appropriationlegally made, under the restrictions of the section

in @Lest F" Davi.dson.v..Ford, l!~Lp..2h-~3~..3~.(Mont. Sup. 1943).

e/ ~Cnly

the State of Florida, where the Constitutionprovides that the appropriation bill shall coutain

nothing

but appropriations,

holds that any rider which in fact doss not appropriate money is'invalid. Lee v. Dowda, 19 So.2d 570 (Fla. Sup. 1944).

## 166 . Hall. AlLanShiPe~%Pal+'l.o (V-1254)

This lnterpretatianoftherule applicabletorlders ina generalapproprlationbillunder Section35 of ArticleIII has been followed

by the Texas Legislatum for msuy ysars. It has continuouslyprovidedforaccolmtingproceduresinconzbxtlon with the funds appropriated, limited~the

use of coutiagent expense

appropriations,

set the rates fortravslexpeusstobe paid from the fundsto State employees, spscifiedths

time of 'payment

**of** salaries

appropriated,

and.prohibitsd

use of appropriatedfmds forpaymntof salaries to "snyemployee.who uses alcoholic

bew?raSes

while on active duty" or who engagesin certain political

activities. Riders ofthis nature inths general appropriationbillareconstitutional,becausethsynrnlydstail,limit,orrsstrlctthe use of the fundsappropriatedor otherwIse

insursthatthe-ywillbeussdforthe purposes i&en&d. liven

the ridersprohibiting payment

of salaries

to thosewho consums

alcoholicbeverageswhilsondutyorwhoengage in political

activities

are legitimate

swans of inmuing that the purpose

oft&s appropriationwillnotbs defeatedand thsnoneywastedonenployeaswho carryonunauthorlsedactivities daring

the time for which thay 85e bain~ p$dto'attendto t&s stats'sbus~ss. IntheTexasLegislative'Manual.(1~), page 263, this typi of provisionIs referred to as "a condition attached

to au appropriation, upon failure

to comply

with which the appropriatldnwill cease to be effective." See also pags 224. .Approprfationbill riders which violate

Ssctlon

35 of ArticleIIXhave beenmore fr&ua&lydiscusssdbythe dourts: snd the Attorney

Gsneral'thanthos,a

which are propsrlywithinthe scopeof‘sucli

bills. The majority of l&s rider.6 whichhave been strichurarethosewhichattempttomodiiyoramanda~ral statute. It is well settledin this State that a rider attached to a aeneralaimronriation bill cannotrewal. nodifyor amend
an existing

g&r& law. State v..Steele; r(-Tex.

203 (18&Z); Llnden v. Finley,92 Tex. 451, 4.9 'S.W. 578 (l&J); Attorney GeneaX's Opinions

No. 1745 (19171,

2787 (19291,

2965 (19351, 2970 (1935);

0-445 (1g39j1.

o,-1837~i1940),~0-2573 (wo);-0.~5329 (1g43), v-412 (1947),

and v-894 (1949).

In Statev. Steele, supra,LindenY. Finlsy,supra, am Attornsy

General's

Oginions1745, 2787, 2965, mpra, it was held that gnsral statutes firinS salaries

or fees could

not be amen& by a general

appropriation

bill. Riders providing for uss or transfer

of special

funds contrary

to generalstatutes which provided for a different depositor use were hsldunconstitutional by Attorney

General's

Opinions

2970 (1935),

O-5329 (19431,

and **V-412** (1947). A rider requiring three years residence inTexas before being adatitted

to the State Tuberculosis Sanatorium

whenHon. Allan Shivers, Page 11 (V-1254)

the generalstatute required

only citizenship

in Texas was held invalid

in Attornsy

General ’ s OpinionO-2573 (194'3).

Generallegislation attempted

in a'general

appropriation bill, even thoughnot desigued to modify or amend au existing statute,

was condemned

by the Supreme

Court of Texas in Moore
v. Sheppard,

supra. In that case the Legislaturs had provi&Z-- by rider iu the appropriation bill that the Clerks of the Courts of CivilAppeals shoulddeposit all unofficial

fees collected ,bythsm in the StateTreasuryand that they should not be paid their salaries

until and unless they filed au affidavit shoving compliancetharewith. Moors refused

to complyand brought suit to require

paymentof his salary. The Couxtrenderedjudgmsnt in his favor upon the grounds that the rider attempted to fir fees of officeand that this was a subject of geuerallegislation separate

audapart fromappropriatingmoneyandtherefors unconstitutional.

The Court said:

"Phatthe fixingof official fees is a matter of generallegislation, and is a *subJect'

of generallegislation within the IssaIling of ArticleIII, Section 35, above, cannotbs questioned.

. . .

n

. . . that portionof the Appropriation Bill setting out for ths firsttime mattersnot germans thereto, and dealing

with gsnexallegislation on the different sndwhollymrelated ‘subject of fees chargedbypstltiohers for unofficial copies,

andprsscribingths disposition

of such fees, is in conflict with the mandate of Article III, Section 35, and is unconstitutional.

. . ."

A similar

rulingwasmads bythe AttorneyGeneral of Texas in Opinion

O-445 (1939)

written

by former.As6ociat.e Justice James P. Hart concerning a rider which prohibited State employees from accepting

or using passes Issued by transportation

agencies. In this opinionit was said:

'The anti-pass

provisions

of the appropriation bill do not constitute a regulation

of the manner in which the sums appropriated therein shallbs expended. If construed

as an implied

amendment

of the general statutes

prohibiting

the issuance

of free passesby transportation

agencies,

said provisions

would be invalid since a generallaw'may not be amended

by provisions of a general

appropriation

bill. See Statev. Steels,57 Tex. 200; Lindenv. Finley,92 TeX. 451."10
9 This riderwas also held unconstitutional because it
was not covered

by the captionof the act.Hon..Allan Shivem, Page l2 (V-1254)

Examplesof valid and invalid riders in HouseBill 426, the general

appropriation

bill for the bieunium ending August 31, 1953,may be found in Subdivision (15) of Section

2, ArticleIII, relating

to State-owned

automobiles.

The valid riderprovides:
,I

. . . No motor-propelled passenger-carrying

vehicle may be purchased with any of the fundsappropriated in this Article,

. . ."
Thisisa constitutionalriderbecause it dossnoxorethanlimit and restrict

use of the.fonds

appropriated

by HouseBill 426.

The invalid

rider readsas follows:

."All State-owned

motor-propelled

passengercarqing vehicles

under the control

of any department, conmission,

board, or other Stateagencyars hereby declarsdtobe nolongerneeded. Suchmotor-propelled passenger-carrying vehicles shallbe sold in compli-

- with and as provided for in Article666, Revised Civil Statutes

of Texas,as amended, or otherwise

as provided

by law, not laterthan October 1, 1951.

. . . provided,

however,

that theseprovisions of this Ssction in regardto the sale and purchase of motorpropelled

passenger-carrying

vehicles

shall not apply to the Executive

Department,

StateHighway

Department, Department

of Pulbic Safety,

Cuss, Fish and Oyster Ccmds*ion, and the Railroad ~ssion, provided that th+RailroadConmlssion shallonlykeepandhavs in its possession

not to.exceed

twenty (20)motor-propelled passenger-camyfng

vehicles

and the Texas PrisonSystem shall only keep and have in Its possession thosevehicles equipped

with two-way

radios. Notices shall be given in +M.ng to persons now using said vehicles of the time and place they are goingto be sold &order that such persons may have an opportunity to bid on said motor-propelled

passenger-carrying

vehicles."

Ths forsgoing

rider is not incidentalto the appropriation of money or 'alimitation or restriction

of the use of money appropriated

by House Bill 426. It relates to an entirely

different subject

and is general

legislation

prohibited

by Section 35 of.Article

III of the Constitution. Att,orney

Gsneral's

Opinion No.. V-1253 (1951). This rider illustrates the reasonfor the constitutional~prohibition against

general

legislation

in an appropriation bill. As pointedout in the above opinion, if this type of legislation

were valid, it wouldbe possible for the Legislature to provide for the sale of the State's office buildings

or the public

## 169

Eon. AlUmShivers, Page 13 (V-1254)

schoollands ina general appropriationbill. Clearly, the sala of State-owsed automobiles

and other .propsrty, in the words of the Suprems

Court inMoore v. Sheppard, supra, is ona "differentand whollyurirelated subject"

froiv approppiating

funds. This rider is also unconstitutional because the caption of the bill gives no notice whatever

of its presencein the bill. AttorneyGeneral'8

opinion

v-l.253 (1951).

As previously

pointedout, riders in an appropriation bill may sosetisk?s

conflict

with Section 1 of Article II of ths Texas Constitution, which provides:

DThepowersof the Coverument of the Stats of Tees shall

be dividedinto three distinct departments, each of which shallbe confided to a separate

body of maglst.racy,

to wit: Those which are Isgislative to one; thosewhich are Executive to anotheriaudthosewhich ire Judicial

to another;

and no parson or collection of perffons,

being of one of these departments, shallexerciss auy powerpropsrly attached

to either of the others, except in the instsnces herein expressly

permitted.?

The Legislative

BudgetBoard, composedofthe Speaker and four Ho&z membersappointed by him (including

Chairman

of tlw Appropriations

Comittee and Chairmen of Revenueand TsxationCommittee)

audthe Lieutenagt

Governorand four Senateemkrsappointed~hhim(inclubingCbsirmanofFinancc Committee and Chairmsn

of StateAffairsCommittee) was created

by Senate sill 387,.Acts 51t3t Leg., R.S., l$+g,'ch. k@, 'p.

,906(Art. 5kZgc,

V.C.S.) to serve in an iuvestlgatoryaudadvisokycapacity with respect

to proposed

appropriations.

The Board'sfunctions Eve supplementary to those of the Board of Control and the Covernog

as already

prescribed

in Articles 68ga:lthrough 6&a-7, V.C.S. Article6&a ime amsndsd by Senate Bill 413, Acts 52n8 m., R.S., 1951, ch. 332, p. 572.

There is no constitutioual questioninvolved

in creation

of such au advisory legislative

budget conmittee.

1'
But the same Legislature, in a rider to its generalappropriation bill for the Beard for Texas State Hospitals end Special Schools,

went furtherin subjecting the expenditure

of transferred funds and unexpended balances

by the Texas StateBoard for Hospitals

and'Spedal Schools to the approval

of the

il.J~Ter+llv. King, 118 Tex. 237, 14 S.W.2d786 (1929).Eon. Allan Shivers, Page 14 .(v-1254)

I2 Legislative

BudgetBoard.

In like vein, the Fifty-second Iegislature

has appended severalsimilar

ridersto its general appropriation

bill, as follows:

The Legislative BudgetCommittee

bid is hereby authorized

to requirequarterly budget approval

prior to the expenditure

of enyofthe fuuds appropriatedto the departments

end agencies

of the State of Texas in this Ad. Suchreq~~ntwhenFxercisedshallbe made by filing

writtennoticewith the State Comptroller and written

dirediim with the department or agency. After tich notice,

no moneyshereinappropriated shall be expendeduntil such budget approvalshallhave been securea. " Article III, Section2, cbd. (34),LB. 426, Acts 52nd Leg., 19.51.
nBuD(;gTAPPROVALJ6ENREQUISED. The Ie@+.etive BudgetBoard is hereby authorized to require

the submimion of a budget for Ws approval prior to the expepdltun of any of the funds appropriated to the St&e institutions

of highereducation and to thepther educational

agencies

of the St&e of Texes nan~d in his &kg article. Suchrequirement,whenexercised, shall be made by filingwrittennoticewith the State.Comptroller a&written dir&&ion with the institution or ageky. After the effective date providedin ech notice, no maneys hereinappropriated shell be expended

until such budget approvalshallbeen Bid beefi secured. The authority&ranted

by this peragraph

shall be exercised only in emergncies. The Legislative BudgetBoard dalYdetermine when such an emergency~exists."Article V, Sectiw’16, LB. ,426, Acts 52nd L&g., 1951. / "Quarterly

Budgets. The tigislative BudgetR&d shall requirequarterly budget approval.prior to the obligation~or

expknditti of any of the'funds appropriated to the Board institutions and the Centrd Office ti this Article& No moneysherein appropriated shall be expended until such budget kpprovalshallhave been secured.!' Ar- ~ticie II, Section 14, 'E.B.~ 426, Acts 52nd Leg., 1951.

'a Section18(b)'and (c), House Bill 321, Acti 5lst Leg.9 R.S.,~1949;ch.842, pt 1084.Non.Al.Lsn Shivers,

Page 15 (V-1254)

Since the State departments, institutions

of higher education,

and other State institutions are not a part of the legislative

branchof the State government, these rider6, in requiring

furtheritemization of appropriations

or approval of the expenditure

of appropriated

fundsby the Legislative BudgetBoard,violate the constitutional

provision

prescrib- ..ing the separation

of powers.

The phrase "any power properly attack&to either of the others"

prompts inquiry

as to what powers

belong to each branch. "Legislative" mans %zking, or havingthe power to make, a law or laws." Webster'6 New lnternationel

Dictionary (2dEd. 1938). This includes makIng and itemizingappropriations. :YChf.power to itemize

appropriation8

is a legislaU-power which it may exerciseif it sees fit as long as'the is in its hanas. The legislation is complete

when the appropriation-is

&&.+ Peoplev. Tremaiue,I.68 N.E. 817 (N.Y. Ct. App. 19s). The money once appropriated, the Le&slature Is no longerauthorized to concern itself

with the fin-ther

segregation

and disbursement

of the funds,the constitutionalinhibition

being not only againstactualusurpztion of the function,but also againstone departztent's setting

Itself up in
a supervisory

capacity

over the actionsof another.l3 Parenthetically,

it maybe notedherethat if the approvalofproposdexpenditures'beconsi&redalegislatlve function, still. such function

couldno be delee;ated by the body as a whole to a'few of its zembers.lfi

The legislative

function

being to make laws, the executive iunction

is to carry them out. Webster's New International Dictionzry

(2dEd. 1938), in Its definition of "executive,"

uses the phrases "or carrying into effect"

. . . "or zecures their due performance."

More specifically, the fizcaladministration of the affairsof the governueti has been held to be an executive duty.15 The above ridersthus attempt to vest au executive power in a joint cozmittee of the legislative

branch.
Although

Texas cases upholding the separation

of powers are too nmrterous

to requirecitation, one exampleof an unwarranted legislative

interference

with the executive

department

is the striking

down of Article 803a,V.P.C.., which prescribed

the

u Cooley's

Constitutional

Li$tations (8thEd. 1927) 227.

w Ex parteYoungblood, 251 S,W. 509 (Tex.Grim.App. 1923).

w In re Opinionof the Justices,68 AtL.873 (N.H. Sup. 1907).HCJL Al&an Shivers, Page 16 (V-U*)

to be worn by peace officers mskingarrests

Other ju.rlsdictions likewise

abound in case authority. The United StatesSupremeCourt struck down an act of the Philippine Legislature,

creating

a gove-nt-ownedbsnkandcoalcompany end vestingthe votingpower thereof in a codttee includinp the President

of the Senateand the Speaker of the House of Representatives,

as au attemptto engraft executive

duties upon a legisla vs rection.

if officeand thus usurp the executive powerby indiSimilarly,

an act creating

a legislative

committee onStatewaterrightswasheld invalidwherethe court foundthat the b@3lhuX! hadnot only&d? a &~Wbutn!a e a joint committee its executive

agent to carry out the law. 18

A New York decision exactly in point, conc+rning an appropriation

fettered

by a provision

that the money appropriated k spent ouly with.approval of two legislative

officers,

held unconstitutional

the provision

of StateFinanceLaw, # 139, requirlngsuch approval, the Court of Appeals saying:

'The Legislature

has not only mads a law--i.e.,
an appropriation--but has made two of its members ex officioits executive agentsto carry out the law; i.e., to act on the segregation of the appropriation. This is a clear and ccmspicuous instance

of au attempt bythe Legislaturs to conferadmluistrative powerupon Go Of ItS owu members." Peoplev. Tremaine; 168 N:E. 817, 822 (N.Y. Ct. App. 1929).
Attorney

General's

Opinion

No. O-4609 (1942)is also in point. That opinionconst~eB a rural aid appropriation bill (H.B. 284, Acts 47th Leg.,R.S., 1941, ch. $9, p. 880). In that statute

a joint legislative advisory

comnittee,

composed of five Senate

membersand five House members, was givenpower to approve

numerous

transactions,

including

the receipt

of tuition payment

and @anspotiation aid by schooldistricts. The Attorney

Generalruled that only so much'ofthe act as created
a joint 1egisLative advisoFycommittee

to study schoollaws as an aid to their recodification was constitutional, whereasthe provisions

imposing

upon said committee of the Legislature

the authority

to administer

the law were unconstitutional. ,_

l6J Scoggin

v. State, 38 S.W.2d 592 (Tex. Grim.App. 1931).

II/ Springer

v. Philippine

Islands,

277 U.S. 169, 202 (1927)

W StOCkman

V- L-=aaY,

55 Colo. 24, I29 Pac. 220 (1912).

## 173

Hon. Allan Shivers, Page 17 (V-1254)

Therefore,

in so far as the powersend duties of the Lzgislative

BudgetBoard are extended in HouseBill 4.26

beyond the duties

prescribed

for that Board in the statute by which it
was created,

the Legislature

has attempted

to placeupon the Board duties

which are in violation of Section

1 of Article II of the Terns Constitution.

HouseBill 426 contains a total of 235 riders. Their validity

or invalidity

can be determiued

in most instances

by applying

to each specific

rider the general

ruleshereln stated. In some instances,

however,

the question

&ay be closeenoughto require additional

opinions.

At this time several opinion

requests

are pendingin this office

relating

to the validity

of specific

riders which hzve not been discussed in this opinion. We shall be pleased to furnish

you a copy of each additional op$nion

as it is cornpletd.

In so far as Section 35 of ArticleIII of the Texas Constitution

is concerned,

in aaditionto appropriating

money and stipulating the amount,

msnuer, and purpose

of the variousitems of expenditure to various

departments

and accounts,

a general

approprlation bill may contain eny provisions.or

iders which deteil,

limit,or restrict

the use of the fun&3 or otherwise

insure that the money is spent for the required activity

for which it is therein appropriated, if the provisions

or ridersare necessarily connected with and incidental to the appropriation and provided they do not conflict with generallegislation.

Riders providing

for accounting

procedures

in connection

with the funds appropriated, lImitlug

the
use of contingent

expense

appropriations;

setting

the rates for travelexpense to be paid from the.funds to Stateemployeea,

specifying

the time of payment of ,~~lzries

appropriated

and prohibiting

the use of appropriated

funds for the paymentof salaries to "any employee

who uses alcoholic

beverages

while on active duty" or.who

engages in certain

political

activities
are valid in a general appropriation

bill because they merelydetail,limit,or restrict the use of the fwds appropriated

or otherwise

insurethat the money will be used for the purposes intended. They do not

# 174 Non. AllaIl suverI3,

Pe@ 18 (v-12541

constitute

additional

subjects

of gepesal

legislation inviolationofSection35 ofArticle III offheTexas constitutiorL.

Riders attempting

to fix salaries

end fees or transfer

funds contraryto generalstatutesareunconstitutlcmal,because agenmalappropriationbill cannot amend,modify,

or repeal a general law.
Arider~prcdding for the sale of Stateproperty is notrelatedor incidentaltothe appropriationof funaz. It la general legislation

on a subject

other thanappropriations andtherefore camotbe constitutionally

enacted in a general appropriation

bill. Sec. 35, Art. III, Con&. of Texas; Att'y Gen. Op. r253 ( 1951) -
The **riders** inthe,generalappropristionbillwhich seekto conferupona joiutbOBldcomposedofnmnbers of the Legielature (Lsgielative

BudgetBoard)authorityto repuircfurtherltemisation of appropx%ated

fwi ora~~oft~e*pendituret~reofviolatt Section 1 of Article II of the Constitution of Texas,which pro hibitst&e exercise by the legielatlve

branch of~powers properlyattacbedtothe executive brmch.

Attorney

General

E. Wayne Mode Assistante