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DAN MORALES
 ATTORNEY
      GENERAL                                      December 22,199s



   Mr. Willard L. Jackson, Jr.                               Opinion No. DM-497
   Chair, Board of Regents
   Texas Southern University                                 Re: Validity ofrider to appropriations act requiring
   3 100 Clebume Avenue                                      certain state agencies to expend appropriated funds
   Houston, Texas 77004                                      for training provided by the Texas Commission on
                                                             Human Rights (RQ-1029)
   Dear Mr. Jackson:

             You ask whether a state agency or institution of higher education with three or more
   complaints of employment discrimination in a year must allow the Texas Commission on Human
   Rights (“TCHR” or “commission”) to conduct a seminar for its employees at the agency’s or
   institution’s expense. You state that Texas Southern University (“TSV’) has previously had the
   Equal Employment Opportunity Commission conduct such seminars for it. We understand that TSU
   wishes to provide such training for its employees, but it believes that it may choose the provider.

            The TCHR states that this training is required by a rider’ to the 1997 General Appropriations
   Act. The rider, found at article IX, section 120.5 of the General Appropriations Act, provides as
   follows:

                 All state agencies, including public institutions ofhigher education, that have
                 three or more complaints of employment             discrimination,  other than
                 complaints determined to be without merit, during each year of the biennium
                 shall expend funds appropriated by this Act to receive Comprehensive Equal
                 Employment Opportunity training to be provided by the Texas Commission
                 on Human Rights or other entities or persons approved by the Commission
                 for supervisory and managerial personnel.         The Commission shall train
                 supervisory and managerial personnel who are respondents named in the
                 complaints against such agencies. Each agency shall pay for all training costs
                 or reimburse the Commission for its costs associated with this training
                 through interagency contracts.       The cost of training provided by the




            ‘Theterm “rider” is used to describea provision of text included   in a general appropriationsact. Letter Opinion
   No. 96-079 (1996) (and authorities cited).
Mr. Willard L. Jackson         - Page 2                          @M-497)




               Commission shall be determined           and approved by the Commission            and the
               General Services Commission.*

         TSU questions whether it must comply with the above rider, thereby raising an issue of the
rider’s validity. A rider must comply with article III, section 35(a) of the Texas Constitution, which
provides in part: ‘No bill (except general appropriation bills, which may embrace the various
subjects and accounts, for and on account of which moneys are appropriated) shall contain more
than one subject.” (Emphasis added.)

           In Letter Opinion No. 96-079: we discussed the effect of this constitutional                 provision:

                    Section 35 of article III limits appropriations bills to a single subject, the
               appropriation of funds from the State Treasury.4 The exception italicized
               above permits a general appropriations act to include multiple “items of
               appropriation,” each one setting aside or dedicating a sum of money for a
               stated purpose.5 Because general appropriations acts are limited to the single
               subject of appropriating funds, a general law may not be enacted, amended,
               or repealed in such acts.6 A rider to the general appropriations act may not
               impose affirmative requirements on state officers or entities.’ However, a
               rider that is merely declarative of existing law is not invalid.8

                    A general appropriations bill may constitutionally include language that
               qualities or directs the use of funds appropriated by the bill or that is merely
               incidental to an appropriation. Such provisions, or “riders,” may do no more




           *Act ofMay   29, 1997,75tb   Leg., R.S., ch. 1452, art. IX 4 120.5, 1997 Tex. Gen. Laws 5535,6414.

           ‘Letter Opinion No. 96-079 (1996) at 1-2 (footnotes    renumbered).

         ‘Jessen Assoc., Inc. v. Bullock, 531 S.W.Zd 593,600 (Tex. 1975); Moore Y. Sheppard, 192 S.W.Zd 559,561
(Tex. 1946); Linden v. Finley, 49 SW. 578 (Tex. 1899); Attomiy GeneralOpinions   H-321 (1974) at 2; V-1254 (1951)
at 7.

           5Jessen, 531 S.W.Zd at 599; see generally Tex. Const. art. IV, $ 14 (if bill contains        several    items of
appropriation, governor may veto one or more of such items and approve rest of bill).

          6Moore, 192 S.W.Zd at 561-62; Linden, 49 S.W. at 579; Attorney General Opinion V-1254 (1951) at 7; see
also Attorney General Opinions DM-93 (1992), DM-81(1992),      m-1151 (1990).

           ‘See Coates v. Windham, 613 S.W.Zd 572,575-76      (Tex. Civ. App.--Austin   1981, no writ); Attorney   General
Opinions   DM-81 (1992), MW-51 (1979) at 4.

           8Attomey General Opinion JM-343 (1985) at 3 (modified in part by Attorney General Opinion DM-8 l(l992)
at 2).



                                                                 p.   2837
h4r. WillardL.         Jackson   - Page 3                      (DM-497     )




               than “detail, limit, or restrict the use of the funds or otherwise insure that the
               money is spent for the required activity for which it is therein appropriated.“’

          The rider facially restricts the use of appropriated funds by directing an expenditure of
appropriated funds for a specific purpose, but it does more than that. It imposes on state agencies
and institutions of higher education affirmative requirements that are not authorized by general law,
and, in our opinion, the rider is invalid for that reason. We find no statute requiring agencies and
institutions of higher education with three complaints of employment discrimination in one year to
receive comprehensive       equal employment opportunity training from TCHR or another agency
approvedby TCHR. Thecommissioncitessubsections21,003(a)(5),           21,003(a)(8), and21,003(a)(9)
of the Labor Code,‘O but we have determined from our examination of these provisions that the rider
does more than merely restate these subsections and instead attempts to amend them by imposing
on state agencies and institutions affirmative duties not required by section 21.003.

        Chapter 21 of the Labor Code” prohibits employment discrimination, providing “for the
execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent
amendments.“‘* Section 21.003 of the Labor Code sets out the following general powers and duties
of the commission:

                         (a) The commission      may:




                            (2) receive, investigate, seek to conciliate,              and pass on
                         complaints alleging violations of this chapter;

                             (3) file civil actions to effectuate the purposes of this chapter;

                             (4) request and, if necessary, compel by subpoena;

                                (A) the attendance         of necessary        witnesses   for examination
                         under oath; and




           ‘Attorney    General Opinion   V-1254 (1951) at 17 (summary)~

           ‘“LetterfromWilliamM.Hale,Exec.Dir.,Tex.      Comm’nonHumanRights,              toSusan Williams, OfficeofTexas
Attorney   General (Mar. 10, 1998) (in file on RQ-1029).

          “The Texas Human Rights Commission is established by chapter 461 of the Government Code, but its duties
 and authority with respect to preventing employment discrimination are found in chapter 21 of the Labor Code.

           ‘2Labor Code 5 21.001.



                                                                p.   2838
Mr. Willard L. Jackson   - Page 4                    (DM-497)




                          (B) the production, for inspection and copying, of records,
                   documents, and other evidence relevant to the investigation ofalleged
                   violations of this chapter;

                      (5) furnish technical assistance requested by a person subject to this
                 chapter to further compliance with this chapter or with a rule or order
                 issued under this chapter;




                     (8) provide educational and outreach activities to individuals who
                 have historically been victims of employment discrimination; and

                     (9) require state agencies and public institutions ofhigher education
                 to develop and implement personnel policies that comply with this
                 chapter.

None ofthese provisions require any state agency or institution ofhigher education to take seminars
from TCHR or an entity approved by TCHR or to pay the cost of such seminars, nor do they
authorize TCHR to impose such requirements on anyone.

         Subsection 21.003(a)(4) provides that TCHR may “request and, if necessary, compel by
subpoena” the attendance of witnesses and the production of evidence. In this subsection, the
legislature has made it clear that the commission may compel compliance and has given it the
necessary power to do so. In contrast, subsection 21.003(a)(5), which authorizes the commission
to “furnish technical assistance requested by aperson subject to this chapter,” allows the commission
to provide assistance in response to a request, not to require attendance at its seminars. Labor Code
5 21.003(a)(5) (emphasis added). Other statutes requiring state agencies to provide technical
assistance to third parties show that the agency is responsible only for making information available
to parties that seek it out. Section 53 1.013(a) of the Government Code requires health and human
services agencies to “coordinate and enhance their existing Internet sites to provide technical
assistance for human services providers.” The technical assistance consists of information on
various subjects useful to human service providers, such as case management and contract
management.      Section 419.904 of the Government Code states that the Texas Commission on Fire
Protection “may on request provide technical assistance to rural fire prevention districts, including
advice on the efficient and effective provision of fire protection within a district.”

         Subsection 21.003(a)(8) of the Labor Code authorizes the commission to “provide
educational and outreach activities to individuals who have historically been victims of employment
discrimination,” but this language does not authorize it to require any state agency or institution of
higher education to receive education or outreach activities. Finally, subsection 21,003(a)(9)
authorizes the commission to “require state agencies and public institutions of higher education to
develop and implement personnel policies that comply with this chapter.” This subsection does



                                                     p. 2839
Mr. Willard L. Jackson    - Page 5                    (DM-497)




allow the commission to impose a duty on a state agency or public institution ofhigher education,
but the duty is to develop and implement personnel policies that comply with chapter 2 1 ofthe Labor
Code, not a duty to attend and pay for a seminar given by the commission. An agency or institution
ofhigher education may wish to gather information in connection with developing and implementing
its personnel policies, but it is not required to receive information from a particular source. It may
choose to request the commission to “furnish technical assistance” to it pursuant to subsection
21.003(a)(5), Labor Code, or it may gather information from other sources.

        The commission’s 1987 self-evaluation to the Texas Sunset Advisory Commission describes
the technical assistance and training services given by the commission in a way that is consistent
with our reading of its statutory authority. It states as follows:

                 The primary focus of the Commission’s technical assistance and training
            services is to enhance compliance by employers with laws prohibiting
            employment discrimination.     These services are provided in a number of
            different ways.

                Individual employer representatives or their attorneys regularly contact
            the Commission by telephone, correspondence         or in person to secure
            technical information about a wide range of issues related to equal
            employment opportunity laws. . .

                The Commission conducts annual conferences on equal employment law
            for employers and union representatives     or their attorneys.   These
            conferences are designed to inform attendees about the most current
            developments    in equal employment  opportunity law, as well as basic
            technical information on compliance.

                The Commission also conducts comprehensive        eight hour training
            seminars for supervisory and managerial personnel. These seminars provide
            basic technical information that enhances a supervisor’s or manager’s
            knowledge      of and compliance    with laws prohibiting    employment
            discrimination.”

Nothing is said here about mandatory seminars for supervisory and managerial personnel named as
respondents in complaints against state agencies and institutions of higher education.

         We conclude that the rider to the current appropriations act found at article IX, section 120.5,
attempts to amend general law in violation of article III, section 35 of the Texas Constitution and
is therefore invalid. Accordingly, Texas Southern University need not comply with its terms in




                                                      p. 2840
Mr. Willard L. Jackson   - Page 6                   (DM-497)




choosing an outside agency to provide training sessions and equal employment     opportunity seminars
for its employees.

                                       SUMMARY

               The rider to the 1997 appropriations act found at article IX, section 120.5,
           attempts to amend general law in violation of article III, section 35 of the
           Texas Constitution and is therefore invalid. Texas Southern University need
           not comply with its terms in choosing an outside agency to provide training
           sessions and equal employment opportunity seminars for its employees.




                                               DAN     MORALES
                                               Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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