                THEATTOEWEY                   GENERAL
                             OF   -XAS




                                  July 31, 1963


Mr. Lester E. Harre)l,  Jr.                 Opinion No. C- 119
Director
Texas Commission on”Hlgher                  Re:   Various questions concerning
  Education                                       the construction  of House
Austin 11, Texas                                  Bill No. 86, Article  IV,
                                                  f~;m;n 26 of the 58th Legls-
Dear Mr. Harrell:                                        .
                We quote from your letter     requesting   an opinion   from
this   office     In part a8 follows:
              “House Bill No. 86, Article       IV, Section 26,
       of the Fifty-eighth   Legislature       provides as fol-
       lows :
              “INone of the funds appropriated     In this
       Article   to the general academic teaching instl-
       tutlons shall be expended for the operation or
       maintenance of compulsory physical      training pro-
       grams, regardless   of whether or sot credits are
       granted for participation   In such programs, and
       regardless   of whether such participation     Is re-
       quired for degree programs.     It Is speclflcally
       provided, however, that the provisions       of this
       Section shall not apply to the followlng       kinds of
       physical training or physical education programs:
             “Ia* Organized instructional  classes for
       students majoring In physical education;   and
             “lb.   Programs of mass calisthenics   con-
       ducted with the-purpose of encouraging apprecl -
       tion of the science of bodily exercise     withou t?
       apparatus or equipment, or with light hand appara-
       ths or equipment, and developing bodily strengthen
       and gracefulness.




                                      -591-
I&. mtrr      B. Harrell,   Jr.,   page 2 (C- 119 )


           “*It Is the Intent of the Legislature      that
     physical tralning,or     phyelcal education programs
     of a recrea.tlonal   nature be financed from student
     rees, auxiliary    enterprise    funds or other non-
     State appropriated     source8.’

            “In view of the fact that the Legislature
     throughout the years, In creating        twenty fully
     State-supported    lnstltutlons    ofhigher    education,
     has vested In the governing boards of these ln-
     stltutlons    the authority to set the graduation
     requirements,    determine courses to be offered,
     and enact suoh by-laws, rules and regulations          ae
     are necessary for the successful        governanoe of
     these aolleges and universities,        the Texas Commls-
     slon on Higher Education has direoted me to ask
     your opinion as to the validity        of this section OS
     the general appropriations      bill whioh restricts
     the statutory authority previously        granted to the
     several governing boards of the State-supported
     academic Institutions.
             “If Section 26 of Article   IV Is valid, It Is
    -.lmperative In the administration      of Its provlelons
      that there be reasonable uniformity among the
      twenty State-aupported    academic Institutions    In
      the Interpretation   and application    of the provlsloneI
      of this Section.    In order to achieve this unlform-
      lty and to carry out Its statutory      duty of coordlna-
      tlon, the Texas Commission on Higher Education de-
      sires to place In the hands of the admlnlatratlve
      officials   of the several institutions     the anawera
      to the following   questions:

          “1.  What Interpretation    should be given the
     term ‘mass callsthenlcs?t    . e .

           “2. Do courses   such a8 gymnastics or tumbling
     rhlch are not sports or recreational    In nature but
     which are solely for the purpose of ‘developing
     bodily strength and gracefulness,’   ati SpecIfIcally
     mentioned In Sectldn 26 Subsection b come within the
     scope of ~callsthenlcs?’
              “3. What equipment should be classified     an
     ‘Light    hand apparatus?’     , . .




                                      -592-
?4r. Lester   E. Harrell,    Jr.,   page 3 (C-     119 )


            “4.  Does the restriction   on using appropriated
      funds to support tmass callsthenlcs~    apply to physl-
      cal training courses which are not ‘compulsory’ or
      required?.  . .
            “5. In view of the specific  language of Section
      26 that tphyslcal education programs of a recreational
      nature be flnanded from 8tudent fees, auxiliary    enter-
      prise funds or other non-State appropriated   souroes,’
      are these costs to be charged under the section of the
      statute authorizing a student service fee or under
      some other section of the general fee statute?    . . .n
               Presently there are twenty fully State-supported
lnstltutlons       of higher learning In Texas.             In creating these
Institutions       the Legislature      vested in each of the governing
boards the powers of management and government over the af-
fairs of their respective           Institutions.       For example, Article
2584, Vernon’s Civil Statutes,             vests the government of the
University      of Texas In a Board of Regents.              The basic powers
of the Board of Regents to govern and manage the affairs                    of
the University       are provided for in Article            2585, Vernon’s Civil
Statutes.       Article   2585 Is quoted as follows:
                                                                               ~>
               “They shall establish         the departments of a
       first-class      university,     determine the offices        and
       professorships,       appoin~t a president,        who shall,    ifs
       they think It advisable,           also discharge the duties
       of a professor,      appoint the professors           and other
       officers,     fix their respective         salaries;    and they
       shall enact such by-laws, rules and regulations                  as
       may be necessary       for the successful         management and
       go;ernment of the University;             they shall-have      power
       to regulate the course of Instruction                and prescribe,
       by and with the advice of the professors,                 the books
       and authorities       used in the several departments,
       and to confur such degrees and to grant such dlplo-
       mas as are usually conferred             and granted bye unlier-
       sltles.”       (Emphasis added).
            Pursuant to the powers vested In each of the governing
boards to regulate the courses of studies of those lnstltutione
under their respective   jurlsdlctfons,  a comprehensive and dlver-
slfled program of compulsory physical    education and training has
been established.
              Article  IV, Section 26 of House Bill 06, 58th Texas
Legislature,      1963, Is a rider to the general appropriation   bill
for the next     biennium beginning September lo 1963.    The validity


                                        -593-
Mr. Lester   E. Harrell,   page 4 (C- 119 )


of this rider Is controlled   by Article  III, Section     35 of the
Texas Constitution.   Section 35, provides as follows:
           ‘Sec. 35. No bill,    (except general approprla-
     tlon bills,   which may embrace the various subjects
     and accounts    for and on account of which moneys are
     approprlatedj   shall contain more than one subject,
     which shall be expressed In Its title.      But lf,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 ex-
     pressed.”
            The evils to be avoided by this constitutional  limlta-
tlon have been discussed in numerous cases.     Typical of these
discussions   Is the following  from Stone v. Brown 54 Tex. 330 (1881)
at 342, In which the Supreme Court of Texas sal :
           “The principal   object of this constitutional
     provision   Is to advise the leglslature    and the
     people of the nature of each particular      bill,  so
     as to prevent the Insertion    of obnoxious clauses,
     which otherwise mlght be engrafted thereupon and
     become the law; and also to prevent combinations,
     whereby would be concentrated     the votes of the       .
     friends of different    measures, none of which could
     pass singly;   thus causing each‘blll    to stand on Its
     own merits .I’
             In dealing with Article    III, Section 35, a rule of
liberal   lnterpretatlon     has always been applied.   The tendency of
the decisions     Is to construe the constitutional    provisions   on this
subject liberally      rather than to embarrass legislation     by a con-
struction   whose strictness     1s unnecessary to the accomplishment
of the beneficial      purpose for which it was adopted.     Qlddlnas v.
SD              47 Tex. 548 (1877); Delllnger v. State, m S.W.2d 537
mex.Crlm.App.      1930).    But at the same tl    the Court has been care-
ful to point out, as was originally        done ti Chief Justice Hemphlll
In Cannon v. Hemphill, 7 Tex. 208 (1851), that this provision          cannot
be Ignored and thus nullified.
            With reference    to general appropriation   bills,  the Supreme
Court of Texas has held that “the appropriating        of funds to.be paid
from the State Treasury Is a Psubjectl within the meaning of’Artlcle
III, Section 35, of our Constitution.”       Moore v. Sheppard, 144 Tex.
537, 192 S.W.2d 559 (1946).       It Is clear from the terms of the con-
stitutional   provision   that general appropriation    bills   may contain



                                   -594-
j   :     .        8


!




        Mr. Lester      E. Harrell,    pawa 5 (C-    119 1


        more than one subject of this same nature, I.e.,        appropriations
        for the various departments and accounts.        The exception of general
        appropriation    bills   from the constitutional  prohibition   against
        bills  containing     more than one subject Is a limited and restrioted
        exoeptlon.
                    As long as a general appropriation         bill Includes only
        eubjects  of sipproprlatlng money and 1lmltlng the ut3e thereof In
        harmony with general leglelatlon,        It may relate to any number of
        different    “subjects   and accounts.”    In such lnatances all of the
        subject8 are under the one general object and purpose of appro-
        prlatlng  funds from the treasury.        The obvious purpore of this
        limited exception was to make oertaln that appropriations             to tipore
        than one department In the same bill would not be prohibited:               In
        all other respects general appropriation         bills    are subjeot to the
        same prohibition      as all other bills   against    containing more than
        one subject.      The result Is that general legislation        oannot be
        embodied within a general appropriation         bill.     Moore v. Sheppard,
        eupra.

                    This doea not mean that a general appropriation      bill
        may not contain general provisions     and details  llmltlng and re-
        stricting    the use of the funds therein appropriated,     If such
        provisions    are necessarily connected with and Incidental     to the
        awroorlatlon     and use of the funds and If they do not confllot
        with br amount to general leglslatlon.      Conleg v. Daughters of
        the Republic,    106 Tex. 80, 156 S.W. 197 n913).
                        “With special regard to what Incidental           pro-
                 visions   may be Included within a general appro-
                 priation    bill,   our Texas courts have not stated a
                 general rule.       However, from statements 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 ap-
                 propriating      money and stipulating    the amount, man-
                 ner, and purpose of the various Items of expenditure,
                 a general appropriation       bill may contain any provl-
                 slons or riders which detail,        limit,    or restrict    thk
                 we 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      connected with and Incidental         to the
                 appropriation      and u8e of the funds, and provided
                 they do not conflict      with eneral legislation.           See
                 Linden v. Finley, 92 Tex. &51, 49 S.W. 578 (18%)
                    d Conleg v. Daughters of the Republic            SuPra.”
                 Etorney     Oeneral’s Opinion v-1233 (1951).



                                                  -595-
Mr. Lester   E. Iiarrell,   Jr.,   page 6 (C-119   )


          General leglelatlon   does more than approptiate      moheyy
and limit Its expehdlture.    A8 said by a former Attorney      General
in Opinion No. 2965 (1935):
            I    .lf the Bill doee more than set asId     B ~~.
     eum of’m&ey,    provide the mean8 of lte~dletrlbutlon,
     and to whom It’shall    be dletrlbuted, then It 18 a
     general  law. . . ’
            Thus, the dlstlnotlon   between general appropriation   bills
and general    legislation  has been recognized   In this State In the
simple fact that the former merely set8 apart sums of money for
specific   objects and uses while the latter does more than merely
appropriate    and limit the use of funda.     General leglslatlon con-
stitutes   a separate subject and aannot be Included rlthln a general
appropriation    bill; 1 Moore v. Sheppard, swra.
             Appropriation bill riders which violate Section 35 of
Article   III have been more frequently    discussed by the courta and
the Attorney General than those which are properly within the scope
of such bills.      The majority of the riders which have been stricken
are those which attempt to mbdlfy or amend a general etatute.        It
Is well settled In this State that a rider attached to a general
appropriation    bill cannot repeal,




             Applying the above rules to the question of the validity
of Article    IV, Section 26 of House Bill 86, we find no basis for
the rider’s    validity   in a general appropriation       bill.   The intent
of the Legislature      as evidenced by the language of the second para-
graph of Section 26b, Is clearly          to prevent the governing boards of
the fully State-supported       lnstltutlone     of higher learning from ex-
pending funds for compulsory physical           training or physical training
courses of a recreational       nature.     Obviously It seek8 to amend the
pre-existing    general law which empowers the governing board8 of these
Institutions    to regulate such courses of study.          Also, It deal8 with
a subject other than money appropriations.             Further, It 1s our opinion
that It attempts to do more than appropriate            money and Is therefore
a subject of general legislation          which cannot be enacted In a general
appropriation    bill.    Moore v. Sheppard> su ra.        Attorney Qeneralts
Opinion V-1253 (1951).       Also, general leg+- slatlon attempted In a general
appropriation    bill,   even though it Is not designed to modify or amend



                                      -596-
  .(     .   k

                                              /,




Mr. Lester       E. Harrell,   Jr.,    page 7 (C- 119 )


an existing  statute,  has been held unconstitutional. Moore v.
Shep,pard, supraj Attorney General’s Opinion O-445 (19397
            If the rider In quest&       were valid It would have the
effect  of abolishing   the presently    existing    physical   education    l

and training programs of all the fully State-supported            lnstltu-
tlons of higher learning In this State.          If the Legislature      has
the authority   to establish    and abolish a program of compulsory
physical education in a general appropriation           bill rider it can,
by the same means, prescribe       and abolish any academic oouree of
study.   The very statement of the proposition          demonstrates that
the subject of courses of study or Instruction           which are to be
conducted in the fully State-supported        lnetltutlone     of higher
learning In this State Is a subject of general leglslatlon              eepar-
ate from and unrelated to the general appropriation            of money to
operate the State agencies.        It Is a subject which should have
the full consideration,      opportunity   for public notice and, hearings,
and opportunlty    for amendment or rejection       afforded general legls-
latlon but usually denied to subjects Incorporated            as riders    in a
general appropriation     bill.
            On the baslWof    the authorities   cited and the dlecueelon
above, It Is our opinion that the rider to the general approprlatlon
bill In question Is an attempt by the Legislature       to enaot general
legislation   which would have the effect     of amending pre-exlbtling
law and Is therefore    void.
           Since we have held the general           appropriation bill rider
In question invalid,  It Is not necessary           that we answer Questions
1 through 4, supra.

                                      SUMMARY
                Article  IY, Section 26 of House Bill 86, 58th
          Legislature,   1963, a rider to the general approprla-
          tlon bill which prohibits     the expenditure of funds
          by State supported Institutions      of higher learning
          for the operation and...,malntenance of compulsory
          physical educational    programs other than organized
       -’ Instructional   classes for students majoring In phy-
          sical education and pFograms of mass calisthenics,
          Is Invalid,   because It Is an attempt by the Leglsla-
          ture to enact general legislation      which Is not the
          subject of a general appropriation      bill.     It Is also
          void because It would have the effect         of amendln
          pro-existing   laws which vest the power In the go %rn-
          lng boards of the respective     fully State-supported
Mr. Lester   E. H&rell,   Jr.,   page 8 (C- 119)


     lhetltutlons of higher learning to regulate        courses
     of study, and In these respects It violates        Article
     III, Section 35 of the Texas Constitution.
                                        Very truly   yours,
                                        WAQciONEBCARR
                                        Attorney General



                                        ElyI.J&p.%4~~
                                              Raymond Wllllams,   Jr.
                                            Assistant
IRW:wb:mkh
APPROVED:
OPINIONCOMMITTEE
W. V. Qeppert, Chairman
J. C. Davis
Grady Chandler
J. S. Bracewell
Howard Mays
APPROVEDFOR THE ATTORNEY
                       GENERAL
BY: Stanton Stone




                                    -598-
