   OFFICE   OF   THE   ATTORNEY   GENERAL   . STATE    OF   TEXAS

   JOHN      CORNYN




                                                      December 27,200l




The Honorable Clyde Alexander                                       Opinion No. JC-0448
Chair, Committee on Transportation
Texas House of Representatives                                      Re:     Validity   of a rider to the general
P.O. Box 2910                                                       appropriations act requiring the Texas Department
Austin, Texas 78768-29 10                                           of Transportation to sign an agreement with the
                                                                    City of El Paso in order to expend funds to build
                                                                    a border inspection station (RQ-04 19-JC)



Dear Representative          Alexander:

        You inquire about the validity of a rider in the 2001 General Appropriations Act. Rider 63,
attached to the appropriation to the Texas Department of Transportation, attempts to amend a general
law in violation of article III, section 35 of the Texas Constitution, and it is therefore invalid.

         The rider you inquire about relates to certain border inspection stations to be established by
the Texas Department of Transportation (the “Department”).’ See General Appropriations Act, 77th
Leg., R.S., S.B. 1, art. VII-36, available at Legislative                Reference    Library, and at
http://www.lbb.state.tx.us.   The rider provides that “[i]t is the intent of the Legislature that before
funds are expended” for building such a facility, the Department and the governing board of the
municipality    in which the facility is to be located must agree on the location, plans, and
implementation strategy for the facility. Id.

         You state that this rider is relevant to a controversy concerning the opening of a temporary
inspection station for commercial vehicles in El Paso. The Department is required to establish and
maintain border inspection stations, see TEX. TRANSP. CODE ANN. 9 201.6 13 (Vernon Supp. 2002),
while the Department of Public Safety is responsible for the inspection program for commercial
motor vehicles, id. 5.548.201. It has been suggested that these agencies have not complied with the
rider. Request Letter, supra note 1. Accordingly, you ask whether the rider is valid.

        The legislature may not include a general law in a general appropriations act, because such
action would violate article III, section 35 of the Texas Constitution. See Strake v. Court ofAppeals,



       ‘Letter from Honorable Clyde Alexander, Chair, House Committee on Transportation,             to Honorable John
Comyn, Texas Attorney General (Aug. 15, 2001) (on file with Opinion Committee) [hereinafter         Request Letter].
The Honorable Clyde Alexander       - Page 2     (Jc-0448)




704 S.W.2d 746,748 (Tex. 1986). Article III, section 35 states in part that “[n]o 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.” TEX. CONST.art. III, 5 35(a).
This provision has been construed to mean that the appropriation of funds from the state treasury is
a single subject and that any rider to an appropriations bill must relate to the appropriation of funds.
Strake, 704 S.W.2d at 748; see Jessen Assoc., Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975);
Moore v. Sheppard, 192 S.W.2d 559,561 (Tex. 1946) (general appropriation bill is limited to the
subject of appropriations).  A rider that attempts to alter existing substantive law is a general law
that may not be included in an appropriations act. Strake, 704 S. W.2d at 748. Thus, a general law
may not be adopted by a rider, Moore, 192 S.W.2d at 561, and a rider may not repeal, modify, or
amend an existing general law. See id.; Linden v. Finley, 49 S.W. 578 (Tex. 1899); Tex. Att’y Gen.
Op. Nos. MW-585 (1982), MW-51 (1979), V-1254 (1951).

         A rider may detail, limit, or restrict the use of appropriated funds. Tex. Att’y Gen. Op. Nos.
JC-0178 (2000) at 3, JM-1151 (1990) at 5, V-1254 (1951) at 8, V-1253 (1951) at 4. A rider that
merely directs the use of appropriated funds or is incidental to an appropriation is valid, because it
relates to the appropriation of funds. SeeStrake, 704 S.W.2d at 748; Jessen Assoc., Inc., 53 1 S.W.2d
at 599-600. Merely phrasing a rider as a restriction on the use of appropriated funds does not
necessarily make it a valid rider. Tex. Att’y Gen. LO-96-079, at 3. A rider stating that “[nlone of
the funds appropriated to” an entity may be expended unless some condition is fulfilled still may be
an invalid attempt to amend general law. See Tex. Att’y Gen. Op. Nos. DM-8 1 (1992), M-l 199
(1972) (holding invalid various riders phrased as restrictions on use of appropriated funds). More
important than the formulation of the rider is the breadth or narrowness of its effect, and whether or
not it conflicts with general law. See Strake, 704 S.W.2d at 748-49; Tex. Att’y Gen. LO-96-079, at
2-3.

         Numerous opinions of this office have addressed riders that attempt to amend general laws
and have determined that such riders are invalid under article III, section 35 of the Texas
Constitution.    Attorney General Opinion JC-0178 considered the validity of a rider adding a
requirement to the statutory formula for distributing funds for emergency medical services. We
determined that the rider attempted to amend general law and therefore contravened article III,
section 35 of the Texas Constitution. Tex. Att’y Gen. Op. No. JC-0178 (2000) at 3. In Attorney
General Opinion DM-116, a rider directing the Texas Department of Aging to use the “service
standards, systems, billing and audit procedures, and provider bases used by the Department of
Human Services” was determined to constitute general law and was therefore violative of Texas
Constitution, article III, section 35. Tex. Att’y Gen. Op. No. DM-116 (1992) at 2. A rider that
attempted to transfer the operations and responsibilities of the State Rural Medical Education Board
to the Coordinating Board, Texas College and University System was found unconstitutional          in
Attorney General Opinion JM-1018. The rider was “a general directive in derogation of the
constitutional and statutory directive concerning the affairs of the Rural Medical Education Board.”
Thus, it constituted unconstitutional general legislation limiting the powers of the Rural Medical
Education Board. Tex. Att’y Gen. Op. No. JM-1018 (1989) at 2. A rider expressing the legislature’s
intent that “an interagency contract . . . be executed between the State Board of Barber Examiners
The Honorable   Clyde Alexander     - Page 3     (Jc-0448)




and the Texas Cosmetology Commission to reduce duplication of activities,” General Appropriations
Act, 67th Leg., ch. 875, art. I, 1981 Tex. Gen. Laws 3376, attempted to enact general legislation
within an appropriations act and therefore violated article III, section 35 of the Texas Constitution.
See Tex. Att’y Gen. Op. No. MW-585 (1982).

        We will evaluate Rider 63 according to the standards set out in case law and applied in the
opinions of this office. This rider provides as follows:

                         Border Inspection Facilities.        It is the intent of the
                Legislature that before funds are expended for the purpose ofbuilding
                a co-located facility which would serve as a commercial motor
                vehicle inspection facility, border inspection station, or a centralized
                border inspection station that the department sign an agreement with
                the governing board of the municipality in which the facility is to be
                located which states that the location, plans, and implementation
                strategy for the proposed facility are acceptable to all parties
                involved.

General Appropriations Act, 77th Leg., R.S., S.B. 1, art. VII-36, available at Legislative Reference
Library, and at http:Nwww.lbb.state.tx.us.  “Collocate” means “[t]o place side by side, or in some
relation to each other.” III OXFORDENGLISHDICTIONARY487 (2d ed. 1989). Depending on context,
it may mean “to locate in the same building or part of a building.” See TEX. GOV’T CODE ANN. 8
2 165.106 1 (Vernon 2000) (collocation of state agency administrative office space).

         The border inspection facilities that are the subject of Rider 63 are also addressed by section
201.6 13 of the Transportation Code, which requires the Department to establish and maintain border
inspection facilities in three cities. This provision was adopted in 1999 as Senate Bill 913. See Act
of May 30, 1999, 76th Leg., R.S., ch. 1527, 8 1, 1999 Tex. Gen. Laws 5254. Its purpose was
to help expedite the flow of traffic through the Texas-Mexico border, which had increased greatly
after the North American Free Trade Agreement was adopted. See SENATECOMM. ON BORDER
AFFAIRS, BILL ANALYSIS, Tex. S.B. 913, 76th Leg., R.S. (1999). Senate Bill 913 required the
Department “to establish and maintain an inspection station in Brownsville, in Laredo, and in El
Paso along a major highway at or near a border crossing from Mexico so that all federal, state, and
municipal agencies that regulate the passage of commercial motor vehicles could be located in one
place.” FISCALNOTE,Tex. S.B. 913’76th Leg., R.S. (1999). Section 201.613 of the Transportation
Code provides as follows:

                         (a) The department shall choose a location for an inspection
                station along a major highway at or near a border crossing from
                Mexico in Brownsville, in Laredo, and in El Paso so that all federal,
                state, and municipal agencies that regulate the passage of persons or
                vehicles across the border at that border crossing may be located in
                one place.
The Honorable     Clyde Alexander       - Page 4      (~~-0448)




                          (b) The department shall establish and maintain an inspection
                  station at the locations chosen in Subsection (a) only if the federal
                  agencies involved in the regulation of the passage of persons or
                  vehicles at that border crossing agree to the design of the facility at
                  each location and agree to use the facility at each location if built.

                           (c) The department may enter into agreements with federal,
                  state, and municipal agencies to accomplish the purpose of this
                  section. An agreement may involve the lease of office space at the
                  inspection station by the department to the agency.

TEX.TRANSP.CODEANN. 9 201.613 (Vernon Supp. 2002). We understand that an inspection           station
for commercial vehicles has been opened in El Paso,* where the Texas Department of Public Safety
is inspecting trucks on the Department of Transportation’s right-of-way, but that no building has yet
been constructed at that site.3

          Section 201.613 of the Transportation Code authorizes the Department to choose the
locations for the inspection stations. Rider 63, however, would make the construction of a facility
at the location chosen by the Department contingent upon its securing the municipality’s written
agreement that “the location, plans, and implementation           strategy for the proposed facility are
acceptable to all parties involved.” See General Appropriations Act, 77th Leg., R.S., S.B. 1, art.
VII-36, available at Legislative Reference Library, and at http:llwww.lbb.state.tx.us.     The rider thus
attempts to curtail the Department’s authority under section 201.613 of the Transportation Code to
choose the location for an inspection station or stations in each of the three cities. Section 201.613
provides that the Department “shall establish and maintain an inspection station at the locations
chosen in Subsection (a)” only if certain federal agencies agree to the design of the facility at each
location and agree to use it if built, but nothing in that statute requires the Department to secure the
municipality’s agreement to “the location, plans, and implementation strategy for the proposed
facility.” Id. Accordingly, Rider 63 attempts to amend substantive law in violation of article III,
section 35 of the Texas Constitution.

         A brief submitted to us argues, however, that Rider 63 is not an impermissible modification
of section 201.613(a) of the Transportation Code.4 It asserts that “nothing in [section] 201.6 13 states
or implies that TXDOT’S [the Department’s] decisions cannot be encumbered” and cites Coates v.
Windham, 6 13 S. W.2d 572, 575 (Tex. Civ. App.-Austin           1981, no writ), as authority for this


        ‘See Request Letter, supra note 1.

         3See Letter from Honorable Joseph C. Pickett, Texas State Representative,    to Major Coy Clanton, Texas
Department of Public Safety (July 3 1, 2001), attached to Brief from Representative Pickett to, Susan Gusky, Chair,
Opinion Committee (Aug. 29,200l) (on file with Opinion Committee).

         4Brief from Mr. Paul N. Wageman, Winstead, Se&rest & Minick, on behalf of Fasken Oil and Ranch, Ltd.,
to Susan Gusky, Chair, Opinion Committee at 2 (Oct. 8,200l) (on file with Opinion Committee).
The Honorable Clyde Alexander         - Page 5    (JC-0448)




statement? In our opinion, the rider addressed in Coates v. Windham may be distinguished from
Rider 63. In Coates v. Windham, the court addressed the validity of the following rider to an
appropriation to the Department of Corrections:

                            The Department of Corrections is authorized to acquire from
                   the proceeds of the sale of properties, and/or the exchange of
                   properties, and/or from the appropriation for prison construction,
                   acreage for a prison site upon which to construct a prison unit. 27ze
                   acreage for a prison site shall be acquired only when authorized by
                   the Approval Board consisting of the Governor, the Commissioner of
                   the General Land Off Ice, and the Chairman of the Board of
                   Corrections.

General Appropriations      Act, 66th Leg., R.S., ch. 843, art. III, 1979 Tex. Gen. Laws 2445, 2625
(emphasis added).

         The italicized language in the rider was challenged as violative of article III, section 35 of
the Texas Constitution. The court stated that the rider was an attempt by the legislature to regulate
the expenditure of the appropriated sum “in a limited and negative way” and it “did not, therefore,
constitute an excessive degree of delegation so as to run afoul of the prohibition against two subjects
being embraced by one bill, nor did it attempt to confer a veto power on the Approval Board.”
Coates, 613 S.W.2d at 575. Although the Texas Board of Corrections had “exclusive management
and control” of matters pertaining to the management and operation of the Department of
Corrections, the legislature had never granted the board an “exclusive and plenary power” in matters
pertaining to real property. Id. at 575-76. The court determined that the rider did not impermissibly
attempt to amend or replace an existing general law, but it also stated as follows: “Had the rider in
question conferred any affirmative powers or duties on the Board, or had the Legislature previously
conferred upon the Texas Board of Corrections the exclusive power of acquiring prison lands by
purchase, we believe that we would be faced with an entirely different question.” Id. ; see also Tex.
Att’y Gen. LO-96-079, at 2-3.

        Rider 63 presents “an entirely different question” because, unlike the general law at issue in
Coates v. Windham, section 201.613 of the Transportation Code confers upon the Department the
power to choose the location of an inspection station, without seeking the agreement of the city in
which the inspection station is to be located. Accordingly, Rider 63 attempts to amend general law
and is therefore invalid and of no effect.




       ‘Id. at3.
The Honorable Clyde Alexander      - Page 6    (JC-0448)




                                       SUMMARY

                        Rider 63 to the appropriation to the Texas Department of
               Transportation in the 2001 General Appropriations Act is invalid
               because it attempts to amend a statute in violation of article III,
               section 35 of the Texas Constitution.         Section 201.613 of the
               Transportation Code provides that the Department of Transportation
               shall choose a location for an inspection station in three named cities
               and does not require the city to agree to the choice of location. Rider
               63 provides that appropriated funds may not be spent on the
               inspection station unless the Department secures the city’s written
               agreement that the location, plans, and implementation strategy for
               the proposed facility are acceptable to all parties involved. Because
               the rider attempts to amend section 201.613 of the Transportation
               Code, it is invalid.

                                              Yo rs ve     truly,



                                            dLcik
                                              JOHN     CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
