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       Honorable Preston Smith             Opinion No. C-443
       Lieutenant Governor
       Capitol Station                     Re:   Validity of a "rider" ap-
       Austin, Texas                             pearing in the General
                                                 Appropriation Bill, House
                                                 Bill 12, at Section 4,
                                                 page V-33, and purport-
                                                 ing to provide for manda-
                                                 tory retirement at the age
                                                 of seventy (70) of statu-
                                                 tory officers and employees
       Dear Governor Smith:                      of the State:
              You have requested an opinion from this office concerning
       the:
                   11
                    . . . validity of a 'rider' appearing in
              the General Appropriat,ionBill (H.B. 12) at Sec-
              tion 4, Page V-33, purporting to provide for
              mandatory retirement at age 70 of statutory of-
              ficers and employees of the State. Constitutlon-
              al officers, as you will note, are excepted from
              its provisions."
              Section 4 of Article V of House Bill 12 of the 59th Legis-
       lature, the General'Appropriation Bill, provides that:
                   "Sec. 4. LIMITATION OF EMPLOYMENT BEYOND AGE 70.
              None of the moneys appropriated in Articles I, II
              and III of this Act shall, after September 30, 1965,
              be paid as compensation for personal services to any
              person over age 70 who holds an appointive public
              office or position of public employment, created or
              authorized by statutory enactment, and who is eligi-
              ble forkretirement benefits under any retirement sys-
              tem provided by the State of Texas or to which it
              contributes. Incumbents of offices or positions cre-
              ated by the Constitution of this State are specific-
              ally excepted from the provisions of this section.
              Moreover, this section shall not prohibit the payment
              of compensation, otherwise due, for the month in which
              a person becomes 70 years of age.  For the purpose of

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Honorable Preston Smith, page 2 (C-443)


      making the prohibition in this section effective,
      every person who holds an appointive public office
      or position of public employment for which an ap-
      propriation is made in Articles I, II and III here-
      of, and to which office or position this section
      does apply, and who is or will become 70 years of
      age or more by September 30, 1965, shall execute in
      duplicate, and file as hereinafter provided, a sworn
      statement on or before September 30, 1965, on a form
      prescribed by the Comptroller of Public Accounts
      showing: (1) the month, day and year of his or her
      birth; (2) the place of birth; (3) the month, day
      and year when such person became, or will become,
      70 years of age; (4) whether onthe date shown in
      the preceding item such person was, or will be, eli-
      gible for retirement benefits under a retirement
      system provi.dedby the State of Texas or to which
      it contributes; (5) the name or title of the office
      or position ,held and of the employing governmental
      agency; and (6) such other information as the Comp-
      troller may require for the enforcement of this sec-
      tion. One copy of the statement shall be filed with
      the Comptroller and the other shall be filed with the
      administrative head or officer or the court, judicial
      unit, hospital or special school, executive, legisla-
      tive, administrative, or other governmental depart-
      ment or agency responsible for preparing the payroll
      on which the name of the affiant appears. Incumbents
      of offices or positions to which the prohibition in
      this section applies, and who attain the age of 70
      between September 30, 1965 and September 1, 1967,
      shall execute and file the sworn statement herein-
      above described not less than 45 days before the
      date on which the affiant attains the age of 70. Any
      person who is required to file the foregoing state-
      ment and who, without good cause, fails to do so,
      shall be conclusively presumed to have neglected the
      performance of an assigned duty, and pursuant to Arti-
      cle 16, Section 10, of the Constitution of the State
      of Texas the Comptroller shall not thereafter pay any
      warrant in favor of such person from any funds, of
      any character whatsoever, appropriated by this Act.
      Every person responsible for making up a payroll for
      the month of October, 1965, shall omit therefrom the
      names of all persons who were 70 years of age or over
      on or before September 30, 1965, and to whom this
      section applies. In making up a payroll for succeed-
      ing months in the fiscal years of 1966 and 1967, the
.   -,.




          Honorable Preston Smith, page 3 (c-443)

                 names of all such persons and of those persons
                 who became 70 years of age during the preceding
                 month shall be omitted therefrom."
                     It is well established that general legislation cannot be
          included within a general appropriation bill. Moore v. Sheppard,
          144 Tex. 537 192 S.W.2d 599 (1946);       Attorney ‘General'sOpinions
          ~~~~~:,S~lIh~~“,“rr-96      (1957) - In addition, it is also well
                                  rider" in a general appropriation bill cannot
          repeal, modify or amend an existing general law. Conley v. Daugh-
          ters    of the Republic, 106 Tex. 80, 156 S.W. 197 (1        inden v.
                                   49 S.W. 578 (1899); State v. ?',%et 57 Tex
                                    General’s Opinions No. V-1254 (1951) and

                 Article 6252-14, Vernon's Civil Statutes,   enacted by the
          58th Legislature in 1963, provides that:
                      "Section 1. It is hereby declared to be the
                 policy of the State of Texas that no person shall
                 be denied the right to work, to earn a living, and
                 to support himself and his family solely because of
                 age.
                       “Set tion 2. No agency, board, commission, de-
                 partment, or institution of the government of the
                 State of Texas, shall establish a maximum age under
                 sixty-five (651 yesrs nor a minimum age over twenty-
                 one (21) years'fbr employment, nor shall any person
                 who is a citizen of this State be denied employment
                 by any such agency; beard, ccmmission, department or
                 institution or any political subdivision of the State
                 of T exas sole? becauselof age; provided, however,
                 nothing in th s Act sha 1 be construed to prevent the
                 imposigion of,minimum and maximum age restrictions
                 for law enforcement peace ,officers or for fire-
                 fighters; provided, further, that the provisions of
                 this Act shall not apply to institutions of higher
                 education with established retirement programs.


                      "Section 4. The fact that older persons often
                 meet with resistance to employment solely because of
                 their age and the further fact that citizens of this
                 State should be allowed to earn a livinn, to work,
                 and to support themselves and their famziies, and-be-
                 cause such persons should not be denied the opportun-
                 ity of employment by any agency, board; commission,

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Honorable Preston Smith, page 4 (C-443)


       department, or institution of the government of the
       State of Texas, creates an emergency . . .I'(Em-
       phasis added).
       The foregoing general legislation prohibits,the various
agencies, boards, commissions, departments and institutions of
the State of Texas from refusing employment to any person who is
a citizen of the State solely because of age. Therefore, the pro-
visions of Section 4 of Article V of House Bill 12 of the 59th
Legislature modifies or amends the existing general law set out
in the provisions of Article 6252-14, Vernon's Civil Statutes.
       In the case of Caldwell v. Board of Regents of the Univer-
sity of Arizona, 54 Ariz. 404, 96 P.2d 401 (1939) the Supremr
Court of Arizona had before it the question of thi validity of a
"rider" in the general appropriation bill enacted by the Lkgisla-
ture of the State of Arizona, which would prohibit a husband and
wife being included at the same time on the payrolls mentioned in
the general appropriation bill. The court in its opinion, which
held such rider was void, stated that:
             "In the case of State v. Angle, Ariz., 91 P.
       2d 705, 708, the question again arose as to how
       far the biennial appropriation bill could contain
       in its appropriation legislation other than the
       mere appropriation of money for the purposes set
       forth thereunder, and we said" l* + * After a care-
       ful review of the cases. we think the rule laid
       down thereby may be stated as follows.
       appropriation bill can contain nothing bue the a -
       propriation of money for specific purposes, and
       such other matters as are merely incidental and
       necessary to seeing that ,themoney is properly ex-
       pended for that purpose only. Any attempt at any
       other legislation in the bl-11is void. * * *I
             1,
                  .   .   .


            "We think there can be no question that, as
       was said in'the Gros.ieancase. sunra. *in the light




                                -2106-
Honorable Preston Smith, page 5 (C-443)


             'In the absence of constitutional or statutory,
       disqualification all persons are eligible to public
       employment whom the appointing officers select, re-
       gardless of age, sex, status orother qualifications.
       People ex rel. v. McCormick, 261 Ill. 413, 103 N.E.
       1053,  Ann.Cas.l915A, 338.  It is a well knownfact
       that for many years a number of employees of then
       state, in its various activities, have been husband
       and wife. In the absence of the proviso under con-
       sideration there is no doubt that marital status is
       not the slightest legal impediment to the employment
       of any person by the state. If the proviso is valid
       it automatically disqualifies one half of our married
       citizens from such employment. The question of whether
       legislation having this purpose and effect is morally
       just, economically sound, or politically expedients,
       is not one for the courts to consider. Whether the
       legislature may constitutionally enact ~suchlegisla-
       tion in any manner is not necessary for us to deter-
       mine in the present case,. But to hold that legisla-
       tion having this purpose and far .reachingeffect is
       'merely incidental and necessary to seeing that the
       money is properly expended for that purpose only' is
       to substitute the shadow for the substance, and to
       disregard the purpose and effect of the proviso en-
       tirely.
             11
                  .   .   .


             "In the later case of State ex rel. Whittier v.
       Safford; 28 N.M. 531, 214 P.759, 760, considering the
       same subject, the court said: '* * * The details of
       expending the money so appropriated, which are neces-
       sarily connected with and related to the matter of
       providing the expenses of the government, are so re-
       lated, connected with, and incidental to the subject
       of appropriations that they do not violate the Consti-
       tution if incornorated in such general appropriation
       bill.   It is only such matters as are foreign, not re-
       lated to, nor connected with such subject, that are
       forbidden. Matters which are germane to and natural-
       ly and logically connected with the expenditure of the
       moneys provided-in the bill, being in the nature of
       detail, may be incorporated therein. * * *I" (Em-
       phasis added).
       In view of the foregoing authorities, we are of the opinion
that the "rider" appearing in the General Appropriation Bill,

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Honorable Preston Smith, page 6 (C-443)


House Bill 12 of the 59th Legislature, at Section 4, page V-33,
which would purport to provide for the mandatory retirement at
age seventy (70) of statutory officers and employees of the State
of Texas is invalid for the reason that such 'rider" would have
the effect of'repealing or modifying the provisions of Article
6252-14. In addition to the foregolng,'we are of the further opin.
ion that the aforesaid "rider" falls wlthin the classification of
being general legislation and is, therefore, not properly included
within a general appropriation bill.

                         SUMMARY

           The "rider" appearing in House Bill 12 of
      the 59th Legislature, the General Appropriation
      Bill, which purports to provide for mandatory re-
      tirement at age seventy (70) of statutory officers
      and employees of the State is invalid for the
      reason that it modifies or repeals the provisions
      contained in Article 6252-14, Vernon's Civil Stat-
      utes, and for the further reason that said "rider"
      is a subject for general legislation and cannot
      properly be included withklna general appropria-
      tion bill.
                              Yours very truly,
                              WAGGCRRR CARR
                              Attorney General




PB:JR:ms




                             -2108-
Honorable Preston Smith, page 7 (C-443)


APPROVED:
OPINION COMMITTEE
W. V Geppert, Chairman
J. C. Davis
John Banks
Marietta Payne
W. 0. Shultz
APPROVED FOR THE ATTORNEY,GENERAL
By: Stanton Stone




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