                              July 19, 1974


The Honorable James D. Cole                   Opinion No.   H-   351
House Administrator
House of Representatives                      Re: Validity of rider to
Austin, Texas                                 Appropriations  Act (H. B.
                                              139, 63rd Leg.) regarding
                                              equal employment    opportunity.

Dear Representative   CoTe:

       Your letter on behalf of the House of Representatives  Committee
on House Administration    raises one of the most frequent questions of
statutory interpretation to come before the Attorney General and one
of the most troublesome.

       You have asked our opinion of the constitutionality   of a provision
of the Appropriations Act for fiscal 1974 and 1975 (Laws 1973, 63rd Leg.,
ch. 659, p. 1986) found as a rider to the appropriation    to the office of      .
the Governor at pages 1967-68:

                 As a limitation on the expenditure of funds
             appropriated    in this Act and to insure that funds
             appropriated    for salaries  of classified   positions
             are spent in accordance      with Legislative    intent
             and the laws of the State, each agency and depart-
             ment of the State of Texas shall prepare and main-
             tain a written plan to assure implementation          of
             a program of equal employment         opportunity whereby
             all personnel transactions     are made without regard
             to race, religion,    national origin,    or sex .(except
             where sex constitutes a bona fide occupational
             qualification).    The plans shall contain a compre-
             hensive analysis of all employees        by race,   sex,



                                       p. 1633
                                                                             ’




The Honorable     James   D.   Cole   page 2    (H-351)




                and class of position and shall include plans for
                recruitment,     Eelection,  appointment,   training,
                promotion,    and other personnel practices.       The
                plans shall also include objectives     and goals,
                timetables   for the accomplishment      and assignments
                of responsibility    for their completion.

                     The plans shall be filed with the Office of the
                Governor within ninety days after the enactment
                of this Bill covering the period September 1, 1973,
                through August 31, 1974, and shall be updated
                on an annual basis.     Progress   reports shall
                be submitted within thirty days of September 1
                and March 1 of each year..     The Office of the
                Governor    shall cooperate with agencies to pro-
                vide technical assistance    to agencies and
                departments    in the preparation of these plans.

Article   3, Section   35 of the Texas   Constitution   provides:

                . . . No bill, (except general appropriation
                bills, whtch may embrace the various subjects
                and accounta,    for and on account of which
                moneys are appropriated)      shall contain more
                than 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 the
                title, such act shall be void only as to so much                 .
                thereof,   as shall not be so expressed.

       The courts in a few instances and Attorneys  General in many have
construed this section as it applies to riders to Appropriation Acts.
Perhaps the most definitive analysis is that contained in Attorney General
Opinion V-1254 (1951) by then Attorney General Price Daniel, as follows:




                                         p. 1634
    ‘_



i        :




             The Honorable     James   D.   Cole   page 3   (H-351)




                                  With special regard to what incidental
                             provisions   may be included within a general
                             appropriation   bill, our Texas courts have not
                             stated a general rule.     However,   from state-
                             ments as to what may not be included and from
                             numerous opinions of the Attorney General,        we
                             believe the rule may be stated generally as
                             follows:   In addition to appropriating   money
                             and stipulating the amount, manner,       and purpose
                             of the various item,* of expenditure.     a general
                             appropriation   bill may contain any provisions
                             or riders which 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,     if the
                             provisions   or riders are necessarily     con-
                             nected with an incidental to the appropria-
                             tion and use of the funds, and provided they
                             do not conflict with general legislation.
                              (Opinion V-1254.    rupra, p. 8).

                                  As long as a general appropriation     bill
                             includes only subjects of appropriating     money
                             and limiting the use thereof in harmony with
                             general legislation,   it may relate to any number
                             of different ‘subjects   and accounts. ’ In such
                             instances all of the subjects are under the one
                             general object and purpose of appropriating        funds
                             from the treasury.      The obvious purpose of             .
                             this limited exception was to make certain that
                             appropriations    torrmre than one department in
                             the same bill would not be prohibited.      In all
                             other respects    general appropriation   bills are
                             subject to the same prohibition as all other bills
                             against containing more than one subject.        The
                             result is that general legislation    cannot be




                                                       p. 1635
The Honorable   James   D.   Cole   page 4   (H-3511




                embodied within a general appropriation bill.
                Moore v. Sheppard,  supra. [192 S. W. 2d 559
                (Tex. 194611.

                    A general appropriation    bill may be defined
                as a single bill which appropriates    funds for two
                or more departments,     subjects,   accounts,  or
                purposes.   It has the one general purpose or
                subject matter of appropriating     money.

                    General legislation does more than ap-
                propriate money and limit its expenditure.  As
                said by a former Attorney General in Opinion
                No. 2965 (19351,

                    1, . . if the Bill does more than
                     set aside a sum of money, provide
                     the means of its distribution,   and
                     to whom it shall be distributed,
                     then it is a general law . . . ’

                     Thus, the distinction between general
                appropriation    bills and general legislation
                has been recognized      in this State in the simple
                fact that the former merely sets apart sums
                of money for specific objects and uses while
                the latter does more than merely appropriate
                and limit the use of funds.      General legislation
                constitutes   a separate subject and cannot be
                included within a general appropriation       bill.
                Moore v. Sheppard, supra; Attorney General
                Opinion No. 2965, supra.(Opinion        V-1254, supra,
                pp. 6-7).

        The difficulty lies in applying these rules to a particular   enactment
or rider.   Opimon    V-1254. supra,  was  a general discussion  of riders.  It
did not involve a particular   rider.  Attorney General Opinion V-1253 (1951),


                                         p. 1636
The Honorable    James   D.   Cole   page 5 (H-351)




issued the day before Opinion V-1254,      involved riders (1) prohibiting the
purchase of any passenger     motor vehicle with appropriated    funds and (2)
ordering that all statehowned passenger      motor vehicles be sold not later
than October 1, 1951.     The first provision was held to be valid as a “mere”
limitation and restriction   on the use of the money.    The second was held
invalid as general legislation.    For other examples,    we would call to your
attention Attorney General Opinion M-1199 (1972), a detailed study of riders
in the 1971 Appropriations   Act as well as those cited in Opinion V-1254,
supra.

         With these rules in mind, it is apparent to us that the rider in
question while, of course,     laudable in its purpose does more than merely
limit or restrict the expenditure of appropriated        funds.  In our opinion,
it is general legislation  affirmatively   decreeing    that all agencies and
departments    of the state are to take certain action.      And, as laudable
as the required action may be, we are legally bound to hold that forced
compliance   will require further legislative    action.

         As in Opinion V-1253,  supra, our reasoning,    perhaps, may be
made clearer by contrasting    the rider with another.   The same Appropria-
tion Act, in its General Provisions,    Article V, at page 2217, contains
Sec. 55 as follows:

                    Sec. 55. DISCRIMINATORY         PRACTICES.     None
                of the funds appropriated   in this Act shall be expended
                by agencies which practice discrimination      based on
                race, creed,   sex or national origin.    The State Attorney
                General shall be specifically   responsible  for the enforce-
                ment thereof upon the request of the Governor.

        Sec. 55 -is   “merely”   a limitation or restriction   on the expenditure
of appropriated   funds and is a valid rider.     The rider requiring an affirmative
 plan containing an analysis   of employees     by race, sex and class of position
and containing a plan for recruitment       and other matters,  is general legisla-
tion, and therefore invalid.




                                          p. 1637
 The Honorable       James    D.   Cole   page 6   (H-351)




          This     opinion in no way affects or lessens   the effect of Subsection 55
 supra.    Nor     does it lessen the requirement   that states and their political
 subdivisions       abide by the federal laws prohibiting discrimination    in employ-
 ment, e.g.       42 U.S. C. §2000e-2,    29 C.F.R.   Sec. 160 et seq.,   or that
 they ta!-eaffi    rmative action required under the federal law.      42 U. S. C.
 § 20OOe-5(g).

                                              SUMMARY

                         While Sec. 55 of Article V of the Appropria-
                     tion Act for 1974 and 1975 mandates that no appropiated
                     funds be expended by agencies    that practice discrimina-
                     tion based on race, creed,    sex or national origin, the
                     rider to the Act requiring affirmative    action plans to
                     provide equal employment     opportunity is invalid as
                     general legislation.   Requirements     of the Federal
                     laws prohibiting discrimination    in employment    or
                     requiring affirmative  action are unaffected by this
                     opinion.




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                                   &J&H
  DAVID M. KENDALL,            Chairman
  Opinion Committee


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