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: ending August 31, 1953. 

In your original. request for an opinion you asked 

that we study the legality and ccmstltutionality of the riders 

in House Bill 426, Acts 52nd Leg., KS., 1951, snd advise you 

as to our concluslons as early as possible. In subsequent conferencesyou Xndlcatedthat'ymsrs primarily inters*ed in sscuringthe rulesoflawapplicabls ln&tendningthslegality 

or constitutlomllty of riders In an approprlatlon bill. You 

s'kated~that in vlew'of the 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 desire a general *ateme& of the rules of law applicable to rldsrs rather than a specific ruling on each separate rider. With this in n&&we shall present the 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 regard thereto is Section 35 of.Article III of the Te%as Constitution: In addition, 

Section 1 of Article II is sometimes applicable. 

The history of Section 35 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 general appropriation 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 subject shall be 

embraced in an act, which shall not 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 shsll not be so expressed." 

A similar provision originally appeared in Section 24 

of Article VII of the *eras Constitution of 1845 as follows: 

"J?xerylawenectedbythe Legislature shallembrace 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 carried forward the wording without change. 

.Indiscussingthe be&groundoftheTexasprovision 

cplef Justice 0. M. 'Roberts, amember of 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 

Georgia inthe 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 measure of tti~li'th of Jsne, 1795; as 

ie&.lknown,wwe smugg&edthroughthe Legislature 

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." (Mayor snd Alderman of 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 embraced in it declared. 

null and void for fraud in its enactent. This z&t 

becams still more notoriously memorable by its tibjedmatter being litigated, and its history being developed in the report of the leading case 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) 

"Hence this provisionlimitingthe legislative 

power, hasbeen adopted inmnyif 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 Justice Hemphill, held that Section 24 of Article VII 

rasmlaatory,notmerelyairectory. 

The evils to be avoided by this constltutionallimitation have been discussed in iumerous c&es. Typical of these 

discussions is the following from Stons v. Brown, 54 Tex. 330 

(188lr at 342, in which the Supreme Court of Texas said: 

"Ths principal object of this constitutional provieion 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 prevent conibinations, whsrsbyw+dbs concenttitedthe votes of the friends of differsntmeasurk .f 

nohe of which could pass singly; thus causing each 

bill to stand on its own merits.3 

In Cooleyts Constitutional Ll.mi~at,ions (8thEd. 1927) 

295, ths purpose of the constitutional provision is -ised 

as follows: 

n . . . It rcay.therefore bassumed as settled 

that the purpose of 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 States that have 

provisions of this general nature. &ly connectic.ut, Maine, Massachusetts, New Bampehire, North Carolina, Rhode Island and Vermont are without it. ConstStutional Limitations upon Statute 

Tltles.in Louisiana, 6 La. LA 72, 78 (Comment 1944). 

g Cannon v. Hemphill, 7 Tex. 184 (1851). 

.1/ Similar gtatements 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 (8th Ed. 1927) 294, 295, 296. 
Hon. Allsn Shivers, Page 4 (V-1254) 

gave no Intimation, and which might therefore be overlooked and carelessly andunintentianally adoptea; 

and, third, to fairly apprise 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 passage of 

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 measure could 

ha& been pasf&~oz.i its-own merits. It also prevents 

the attachmsut of uudeeirable !riders~upon:bille kektaln to 'be' passed beeause'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 riders are often attached in conference 

committee, and the entire bill is submitted to the House slid the 

Senate on a."take or 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 entirk billi 

In the sams manner, 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 general legislation is 

contained in a non-appropriating rider, the Governor must nevertheless accept it or else veto the entire general appropriation 

act. :This he can seldom afford to do. 

The constitutionalimitation now under consideration 

was aimad at praventing such situations. T,his was stated by the 
Hon. Allan Shivers, Page 5 (V-129) 

Supreme Court of PennsylvanIa, aState which has a similar constitutional 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 could not approve, or to 

defeat the whole, including others that he thought 

desirable or even necessary. Such bills, popularly 

called *omnibus bills,' became a crying evil, not ouly 

from the confusion and distraction of the legislative 

mind by the jumbling together of incongrous subjects, 

but still more by the facility they afforded to corrupt combinations of minorities with different interests to force the passage of bills with provisions 

which could mver succeed if they stood,onthsir separate 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'obnoxioils legislation, 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 purpose of this provision was to 

prevent mstters foreign to the general purpo* of appropriation bills being attached to them as riders, 

thereby taking advantage 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 

Accidant Commission, 154 .Pac. 106, 111 (1915). 

Three changes were made in the wording of 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 Section 35 of Article III, with the 

wording it has today, It is quoted in full on page 1 of'this 

opinion. The reasons forthethree changes are readily apparent. 

The exception made for appropriation bills was to insure that no 

court would hold the appropriation for each subject or account 
Hon. Allan Shivers, Page 6 (V-3254) 

a separate general subject and as a result i-squire amultiplicityofappropriationbills; audths saving clauss was addsdto 

prevent the 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 object of the 

constitutional provision remainsdths ssms. 

In dealing with Section 35 of Article III, a ruls of 

liberal interpretation 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 purpose for which it was adopted.5 

But at the same tims the Court has been carefulto point out, 

as was orlgiually dons by Chief Justice Hemphlll in Cannon v. 

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

ignored and thus nullified. 

,With reference to general appropriation bills, ths 

Supreme Court of Texas has held that "the appropriatingof funds 

to be paid from the State Treasury is's ~mibject~~withiu he 

mesuing of Article III, Ssdion 35, of oul.constitution." 2 It 

is clear frouths terms of the constitutional provision that 

geueralappropriationbillsmay containmorethan ens subject 

of this sanbs nature, i.e., appropriations for the various departxfsnts and accounts. The exceptlou of general appxopriation 

bills from the constitutionalprohibitiou against bills.contaiuing more than one subject is a limited and restricted exception. 

The exact wording Is 

" . . . except general appropriation bills, which may 

embrace the various subjects and accounts, for and 

on account of.which moneys aFe 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 relate to any number of 

UJ 'Stone .v. Brown,~ 54 Tex. ,330, 341~(1881), and Travelers 

Protective Association of America v. 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 pbject and 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 other bills against 

contalnlng more than one subject. The result is that general 

legislationcsmotbe embodiedulthina generalappropriation 

bill. Moore v. 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 matter of appropria&g money.7 

Oenerallegislationdaagmorethanappmpriate money 

andl+titsexpsImtllre. 

a opipron No. 2965 0935)p 

AssaidbyafonssrAtto~yGeneral 

* . . . iithcBilldoeemonthansetael~a~of 

monsy, provide the 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.the general jaw. 

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 

funds necessary for the use andmaintenance of the v&rious departmznts of the &ate government already inexistence andtiction~ 

ins." Sellers v. F n&miller, 24 P.2d 666, 669 (Aris. Sup:l933). 

TheNevadaSup- Court has 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). 

State v..Eggem, 136 Pac. 100, 101 (Nev. 

. . 
.Hon. Allan Shiv'qs, Page 8 (v-129) 

Attorney Censral*s Opinion No. 2965, supra. Neither doss it 

meanthata generalappropriationbFUm~~ynotcontain~ral 

provisionsaad.~taFlslimitingandr‘estrictingt~ use of the 

funds therein appropriated, if.such provisions are necessarily 

connected with and incidentalto ths aooropriation and use of 

ths funds and if they do not conflict iith-or. amount to general 

legislation. Conley v. Daughters of the Republic, 106 Tex. 80, 

156 S.W. 197 (qu). 

Th? generalrule with reference to all bills was 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, Section 3fl auy number of provisions may be contained in the sams bill or 

act,houeverdivsrsatheymaybs; the only requirement 

beingthatthsyare conslstentuithths generalobJect 

or subJect,andhava amutualralationsndconnsdion, 

dQedlyor indirectly,withths general subject 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 purpose of the varlous~items of expsnditure, 

a general appropriation bill may contain any provisionsor elders 

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 quotes as accepted definitionsthe following: 

"*A setting apart from the public rsvenue of a 

certain-aim of money for a specific object in such a 

msnner that the executive officers of the government 

ars authorized to use thatmoney.and no 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 general statement of the rule we 

call your attention to the cass of Linden v. 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 upheld a provision in &general appropriation bill which required that funds 

appropriated therein for 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 direct and control the expenditure of every item of appropriation." 

Courts of several other States with similar constitutlonal provisions have applied this general rule. A riders that 

limited expenses for 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 making appropriations 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 created is'limitedto 

ths appropriation so made." Trotter v. Gates & Co.; &I So; 843, 

846 (Miss. Sup. 1932). TheSuprsmeCourtofi4ontana,inholding 

that a rider inanappropriationbill changingths methodof 

paymsnt out of a designated fund is valid, said, ". . . so long 

as incidental provisions of an appropriation bill are germane 

to ths purpose of 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 attempt to 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 Constitution provides 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 lnterpretatianofthe rule applicabletorlders 

ina generalapproprlationbillunder Section 35 of Article III 

has been followed by the Texas Legislatum for msuy ysars. It 

has continuouslyprovidedforaccolmtingprocedures inconzbxtlon with the funds appropriated, limited~the use of coutiagent 

expense appropriations, set the rates fortravslexpeusstobe 

paid from the funds to 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 engages in certain political activities. Riders ofthis nature inths general 

appropriationbillare constitutional,becausethsynrnlydstail,limit,orrsstrlctthe use of the fundsappropriatedor 

otherwIse insursthatthe-ywillbeussdforthe purposes 

i&en&d. liven the riders prohibiting payment of salaries to 

those who consums alcoholicbeverageswhils ondutyorwhoengage 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 provision Is 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 

Article IIXhave beenmore fr&ua&lydiscusssdbythe dourts: 

snd the Attorney Gsneral'thanthos,a which are propsrlywithinthe 

scope of‘sucli bills. The majority of l&s rider.6 which have been 

strichurarethosewhichattempttomodiiyoramanda~ral 

statute. It is well settled in this State that a rider attached 

to a aeneralaimronriation bill cannot rewal. nodify or 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 State v. Steele, supra, Linden Y. Finlsy, supra, am 

Attornsy General's Oginions 1745, 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 general statutes which provided for a different deposit or 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 when 
Hon. Allan Shivers, Page 11 (V-1254) 

the general statute required only citizenship in Texas was held 

invalid in Attornsy General’s Opinion O-2573 (194'3). 

General legislation attempted in a'general appropriation bill, even though not 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 Civil Appeals should deposit all unofficial fees collected 

,bythsm in the State Treasury and that they should not be paid 

their salaries until and unless they filed au affidavit shoving 

compliancetharewith. Moors refused to comply and brought suit 

to require payment of his salary. The Couxtrenderedjudgmsnt 

in his favor upon the grounds that the rider attempted to fir 

fees of office and that this was a subject of geuerallegislation separate audapart fromappropriatingmoneyandtherefors 

unconstitutional. The Court said: 

"Phat the fixing of official fees is a matter of 

general legislation, and is a *subJect' of general legislation within the IssaIling ofArticle III, Section 35, 

above, cannotbs questioned. . . . 

n . . . that portion of the Appropriation Bill setting 

out for ths first time matters not germans thereto, 

and dealing with gsnexal legislation 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 Attorney General 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 opinion it was said: 

'The anti-pass provisions of the appropriation 

bill do not constitute a regulation of the manner in 

which the sums appropriated therein shall bs expended. 

If construed as an implied amendment of the general 

statutes prohibiting the issuance of free passes by 

transportation agencies, said provisions would be invalid since a generallaw'may not be amended by provisions of a general appropriation bill. See State v. 

Steels, 57 Tex. 200; Linden v. Finley, 92 TeX. 451."10 

9 This rider was also held unconstitutional because it 

was not covered by the caption of the act. 
Hon..Allan Shivem, Page l2 (V-1254) 

Examples of valid and invalid riders in House Bill 426, 

the general appropriation bill for the bieunium ending August 31, 

1953, may be found in Subdivision (15) of Section 2, Article III, 

relating to State-owned automobiles. The valid rider provides: 

,I . . . No motor-propelled passenger-carrying vehicle may be purchased with any of the funds appropriated 

in this Article, . . ." 

Thisisa constitutionalriderbecause it dossnoxorethanlimit 

and restrict use of the.fonds appropriated by House Bill 426. 

The invalid rider reads as follows: 

."All State-owned motor-propelled passengercarqing vehicles under the control of any department, 

conmission, board, or other State agency ars hereby 

declarsdtobe nolongerneeded. Suchmotor-propelled 

passenger-carrying vehicles shallbe sold in compli- 

- with and as provided for in Article 666, Revised 

Civil Statutes of Texas, as amended, or otherwise as 

provided by law, not later than October 1, 1951. . . . 

provided, however, that these provisions of this Ssction in regard to the sale and purchase of motorpropelled passenger-carrying vehicles shall not apply 

to the Executive Department, State Highway 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 Prison System 

shall only keep and have in Its possession those vehicles 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 going to 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 'a limitation 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 reason for the constitutional~prohibition against general legislation in an appropriation bill. As pointed out in the above opinion, if this type of 

legislation were valid, it would be 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) 

school lands 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 "different and wholly urirelated subject" froiv approppiating funds. 

This rider is also unconstitutional because the caption of the 

bill gives no notice whatever of its presence in the bill. Attorney General'8 opinion v-l.253 (1951). 

As previously pointed out, riders in an appropriation 

bill may sosetisk?s conflict with Section 1 of Article II of ths 

Texas Constitution, which provides: 

DThe powers of the Coverument of the Stats of 

Tees shall be divided into three distinct departments, 

each of which shall be confided to a separate body of 

maglst.racy, to wit: Those which are Isgislative to one; 

those which are Executive to anotheri audthosewhich 

ire Judicial to another; and no parson or collection of 

perffons, being of one of these departments, shall exerciss auy power propsrly attached to either of the others, 

except in the instsnces herein expressly permitted.? 

The Legislative Budget Board, composedofthe Speaker 

and four Ho&z members appointed by him (including Chairman of 

tlw Appropriations Comittee and Chairmen of Revenue and TsxationCommittee) audthe Lieutenagt Governor and four Senate emkrsappointed~hhim(inclubingCbsirmanofFinancc Committee 

and Chairmsn of State Affairs Committee) 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 iuvestlgatoryaudadvisoky capacity with respect to proposed appropriations. The Board's functions 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. Article 6&a ime amsndsd by Senate Bill 413, Acts 52n8 

m., R.S., 1951, ch. 332, p. 572. 

There is no constitutioual question involved in 

creation of such au advisory legislative budget conmittee. 1' 

But the same Legislature, in a rider to its general appropriation bill for the Beard for Texas State Hospitals end Special 

Schools, went further in subjecting the expenditure of transferred funds and unexpended balances by the Texas State Board 

for Hospitals and'Spedal Schools to the approval of the 

il.J ~Ter+ll v. King, 118 Tex. 237, 14 S.W.2d 786 (1929). 
Eon. Allan Shivers, Page 14 .(v-1254) 

I2 Legislative Budget Board. 

In like vein, the Fifty-second Iegislature has appended 

several similar riders to its general appropriation bill, as follows: 

The Legislative Budget Committee bid is hereby authorized to require quarterly 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 written notice with the State Comptroller and 

written dirediim with the department or agency. After 

tich notice, no moneys herein appropriated shall be expended until such budget approval shall have been securea. " Article III, Section 2, cbd. (34), LB. 426, 

Acts 52nd Leg., 19.51. 

nBuD(;gTAPPROVALJ6ENREQUISED. The Ie@+.etive 

Budget Board 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 filing written notice with the State.Comptroller a&written dir&&ion with the institution or ageky. 

After the effective date provided in ech notice, no maneys herein appropriated shell be expended until such 

budget approval shall been Bid beefi secured. The authority &ranted by this peragraph shall be exercised 

only in emergncies. The Legislative Budget Board 

dalYdetermine when such an emergency~exists." Article V, Sectiw’16, LB. ,426, Acts 52nd L&g., 1951. 

/ 

"Quarterly Budgets. The tigislative Budget R&d 

shall require quarterly 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 moneys herein appropriated shall be expended 

until such budget kpproval shall have been secured.!' Ar- 

~ticie II, Section 14, 'E.B.~ 426, Acts 52nd Leg., 1951. 

'a Section 18(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 branch of the State government, these rider6, in 

requiring further itemization of appropriations or approval 

of the expenditure of appropriated funds by the Legislative 

Budget Board, 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 having the power 

to make, a law or laws." Webster'6 New lnternationel Dictionary (2dEd. 1938). This includes makIng and itemizing appropriations. :YChf.power to itemize appropriation8 is a legislaU-power which it may exercise if it sees fit as long as'the 

is in its hanas. The legislation is complete when the 

appropriation-is &&.+ People v. Tremaiue, I.68 N.E. 817 (N.Y. 

Ct. App. 19s). The money once appropriated, the Le&slature 

Is no longer authorized to concern itself with the fin-ther segregation and disbursement of the funds, the constitutional inhibition being not only against actualusurpztion of the function, but also against one departztent's setting Itself up in 

a supervisory capacity over the actions of another.l3 Parenthetically, it maybe notedherethat if the approvalofproposdexpenditures'be consi&redalegislatlve function, still. 

such function could no 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 fizcal administration 

of the affairs of the governueti has been held to be an executive duty.15 The above riders thus 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 require citation, one example of 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 (8th Ed. 1927) 227. 

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

w In re Opinion of the Justices, 68 AtL.873 (N.H. Sup. 

1907). 
HCJL Al&an Shivers, Page 16 (V-U*) 

to be worn by peace officers msking arrests 

Other ju.rlsdictions likewise abound in case authority. 

The United States Supreme Court struck down an act of the Philippine Legislature, creating a gove-nt-ownedbsnkandcoalcompany end vesting the voting power thereof in a codttee includinp the President of the Senate and the Speaker of the House of 

Representatives, as au attempt to engraft executive duties upon 

a legisla vs 

rection. if 

office and thus usurp the executive power by 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 State Finance Law, # 139, requirlng such 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 

officio its executive agents to 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 confer admluistrative power upon 

Go Of ItS owu members." People v. Tremaine; 168 N:E. 

817, 822 (N.Y. Ct. App. 1929). 

Attorney General's Opinion No. O-4609 (1942) is also 

in point. That opinion const~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 members and five House members, was given power 

to approve numerous transactions, including the receipt of tuition payment and @anspotiation aid by school districts. The 

Attorney General ruled that only so much'of the act as created 

a joint 1egisLative advisoFy committee to study school laws as 

an aid to their recodification was constitutional, whereas the 

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 powers end duties of the 

Lzgislative Budget Board are extended in House Bill 4.26 beyond 

the duties prescribed for that Board in the statute by which it 

was created, the Legislature has attempted to place upon the 

Board duties which are in violation of Section 1 of Article II 

of the Terns Constitution. 

House Bill 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 rules hereln stated. 

In some instances, however, the question &ay be close enough to 

require additional opinions. 

At this time several opinion requests are pending in 

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 Article III of the 

Texas Constitution is concerned, in aaditionto appropriating money and stipulating the amount, msnuer, 

and purpose of the various items of expenditure to 

various departments and accounts, a general approprlation bill may contain eny provisions.oriders 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 riders are necessarily connected 

with and incidental to the appropriation and provided 

they do not conflict with general legislation. 

Riders providing for accounting procedures in 

connection with the funds appropriated, lImitlug the 

use of contingent expense appropriations; setting the 

rates for travel expense to be paid from the.funds to 

State employeea, specifying the time of payment of 

,~~lzries appropriated and prohibiting the use of appropriated funds for the payment of 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 merely detail, limit, or restrict the use of the 

fwds appropriated or otherwise insure that 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 general statutesare unconstitutlcmal,because agenmalappropriationbill cannot amend, modify, or repeal a general law. 

Arider~prcdding for the sale of State property 

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 Budget Board) authorityto repuirc further ltemisation of appropx%ated fwi 

ora~~oft~e*pendituret~reofviolatt Section 

1 of Article II of the Constitution of Texas, which pro 

hibits t&e exercise by the legielatlve branch of~powers 

properlyattacbedtothe executive brmch. 

Attorney General 

E. Wayne Mode 

Assistante