                      The Attorney                    General       of Texas
                                             August    31,   1979

MARK WHITE
AttomeyGemeal


                FIonombleWi@am P. Clemen& Jr.                 OpInionNo. 24w-51
                Gova’nuroftheState(dTexas
                state captto1                                 Rer Authority of the Governor to
                AustSn,Texas 78711                            veto certain mlons       of the
                                                              General ApprcphtIcns Act
                Honorable Bill Rearal
                Chai?U&Wl
                Committee m &woprhtiom
                House of Representativea
                hutin, Texas 76769

                 lionomble Homer A. Foerster
                 RxecuHveMreota
                ~StdeBoarddCUltWl
                 LBJ State Offioe Butlding
                 hwtin,Texsa 767U
                Gentlemar:




                              ~anybillpresaateLttotheGov~~~~recraal
                              itecarofap~ionhcmayobfcct-tooncormorc
                              of such items, and eppkve the other poetica of the
                              bill.   InsuchcaseherhalleippendtotkbiU,~ttbe
                              time of signin& a statement of the itema to which
                              he~f2ctq    and no item so djected to shall teke
                                     ...

                      Thus, the Goveax& authority to veto podons of the appropriations
                bill extend  only to “items of approprlation.n In determining whether a




                                                        P. 156
Honorable William P. Clemks,     Jr.
Honorable Bill Presnal                 -   PageTwo       (Mw-51)
Honorable Homer A. Foerster


 portion of the eppropriatiaw bill constituted en item of appropriation end was thus subject
‘to Veto the Supreme Court recently state&
              It can be add then that the term Item of rpproprhticn’
           cantempletes the setting aside or dedicating of funds for a
           specified purpose This ip to be distinguIshedfrom language which
           qualifies Q directs the tne of w&ted      funds Q which h merely
           incidental to en mtiab.            laqwge   of the letter sort is
           cleerly not subject to veta
              . . . .

             U the lmguege & intended to set e&e fuM3 for e rpecifkd
           p ur p it
                  aLppsn
                       e,
                        Stem
                           of lpprcpdation’end is             therefore aubjeet to
           veto by the Governor. Otberwbe, the Governor must veto the
           entire bill ‘orlet the objectionable part stand, . . .
Jesen Associates, Ik. v. Bullock, 531S.W.Zd593,599 (Tex. 1975).




           The ally edditfalel *uthoruy to lBappd@      8 bill in whokisthet
           given to object to M item or Stem8 where a,bill contains several
           items, of eppropriatia It follows ccncl@vely thet where * veto
           ~power is attempted to be exercised to objeM to ,a paragnph or
           ~~of~btllothathanuritcmor,ittms,ortotanguagt
           qualllOtneM~t~adf~.ths,methodcdits~he
           exceeda *      constltt@mel l  uthc+ity vested in him, and his
           abjection to such paregmph, or portion ,of a bill, or language
           qualifyin& an approprfatiar, ar directing the methokof Its use,
           becomes noneffective.
Fulmore v. Len+ NO saw. 405, u2 clb. l9lll. see ekw Attic           Generel opinsons16499
?l972XY-1196UQSI).

     Representative Presnel questions seven specific vetoes. The first ,portionof thc.bill
which is the subject of a questiartd veto ~videsz

              The Bowl of Regents of The University of Texas System is
            hereby authorized to wd          such ‘amount of its PamaneM
            University Fund bond proceeds and/or other bond proceeds end such
            ernount,of its other available moneys us may be necessary to fund,
            in whole or in pert, alterations and additions to the Sun Bowl




                                           p* 157
HonorableWilliam P. Clements, Jr.
HonorableBill Presnal                      -   Ps6eThree   (JJW-51)
Honorable Homer A. Foerster


           Stadium which k located on tha campus of The Univ&ity of Texas
           at El Paso.
      In all relevant respects the lan6uage of this rider k identical to the rider before the
Supreme Court in Jensen. See P&c. Cede 9 6LO58. Accordingly, we believe it k beyond
question that the-shad              no legal authority to veto this rider, and thus the
purported veto MS no effect
       Governor Clements asks if the rider violates article VI& section 6 of the
 canstituUon which requires that epproprhtiats be specific. Since the Jemen court
 con&&d that thk langnsge did not constitute an independent appropriaek                 not
 necessary to measure it agahwt the requirements of article VIII, section 6. See also
 Jemen, supra, at 599-600, II. 8 for a description of types of funds which might be covered
 under the language of the rider. Discussion of specific appropriations are found in
 National Biscuit Co. v. State, 135 SW.2d 687,693 &x. 1940) tit k not necemary that an
 eppropriaticn dasi9nste a certain sum or even a. maximum sum to be specific); AGcinsv.
 State Wiiway Denartment, 201,S.W. ‘226 0’~ Civ. App. - Austin 1918, no m
.approptiation of all funds coming from a named source k specific); Attorney General
 Opinion V-l267;(l951)(appropriation of en uncertain amount of money in a special fundfor
 a named purpcee k specific); Attorney General Opinion V-887 (1949) (appropriation of all
 lkenae fees received under a particular act k specific).
       The Governor also suggests that any improvement ‘of the ~eounty-ownadSun Bowl
with state funck~wouldviolate article iU, section 51.of the Texas ‘Cumtitution which
provi&     inter elia that the legklature ~hss no power to authorize a grant of public
moneys toZiiiiZ&       corporatim The details of any improvements are not before tu so
we canno%say that all cane&able pr6jects wauld he permissible; however, the University
of~TexasatRlPasokthelong-termle&eeofthestadiumanditmayba~y
anticipated that it will receive substantial benefits from alterations and edditkms to the
facility. Acts 1967,57th Leg., ch. ‘13;at 23. If the University receives adequate benefits,
it k not prevented from making apenditures which mayincidentoRy benefit ths County.
Attorney General Gplnion H+3 0974).
      The next provision in question is:
             (47) The Texas Department of Human Rewnmxs kh=eby
           authorized and directed to construct a state office building, in
           cooperatfcn with the State Board of Control, cons&kg of NTR
           530,006 gross square feet (400,000 net square feet). No General
           Revenue, Children’s Assistance, 01‘Medical Assiitance funds may
           be tned for this purpose.
              It k the intent of the Legislature that the building house the
            central administrative offices of both the Texas Department of




                                                  P- 158
Honorable WilIiamP. Clements, Jr.
Honorable Bill Presnal                   -   PagePour    (NW-51)
Honorable Homer,Ai Foerster


           Ruman Resources and the Texas Youth CounciL Further, it k the
           intent of the Lcgttlature that the buIldin. be co&meted on State
           land currently owned by the Texas Department of Mental Health
           end Mentd Reterdatkn, The Board of Mentsl Wealth and Mental
           Retardatico k hereby authorized end directed to traM!er to the
           State Boerd of Control record title to a certafn trhnguwhaped
           tract of land 39 acres, mare or lem, in ths north part of the City of
           Austin, tam&d on the west by West Guadalupe Street and,North
           Lamnr Boulevard, on the north by Slst Stree& on the eastby
           ~GuadalupeStreet and having the southern Up of the tract at the
           intersection of Guadalupe and West Guadalupe Streets, together
           with all records held .b it concerning this tract

      These two paragraphs do not constitute an “item” of wropriation under the test
esteblished in Jemen. They da not set a&e or dedicate funds Instead, tMms
directs and qtixthe       tue of fumkappropriated elsewhere. See Jesren,
606 (Supreme Court found fact that funds were appropriated elsewhere was% ncant in
determining that the provkion was not an item .of appropriation and thus was not subject
to veto). It prohibits the use of certain categories of funds for &nmtruction of this
buiiding, and it ef!ecUvely directs the tue of funds spproprietedittother portions of the
Act. Accordingly, the Governor was without euthority to veto thisprovision.

      The Governor asks a series of questian? rsgardinS eemed federal f&s, which it .k
entidpated will be the source of revenue for the construcUon~of the build@ listed in the
rider. Berned federal funds are generated by reportingstate apendftures for servSces to
pemons eligible for certain federal prcgrems gnd by olaimirg federal matching funds for
those servkes. The earned federal funds are .arbject to appropriation by the legkigture
and have in fact been appropriated. Se            ert. n, rider (6) et R-52, art. v, ‘019. The
po$kn of the eppropri&ious act reflect  9     the  method of fh’mnchg the Department of
Human Resources apprcpriation indicates that $60,650,000 has been appropriated to the
department for the next two year%from earned federal funds Thk gmount reflects only
the portion of the department’s itemized eppropriatiOncoming ,from earned federal funds.
It does not include any funds for the construotion of the buildirgt however, ell earned
federal funds are appropriated by the sixth rid& to the dspartmentk appropriation. Thus,
ths amount of earned federal funds the department may spend is not limited to the
660,650,OOOshown in the method of financfrg descriptlen. Addit(onel funds Snexcess of
the ‘$60,650,000 appropriation may be spent for the constrgtion of a buildii within the
limits set out, in the rider which the Governor sought to veto.
     The third provision in question k
             The State Board of Control shall establish a maximum and a
           minimum monthly charge for state employee parking of $16 and $6
           respectively for facilities within its jurkdictton. The Board k




                                              p.   159
Honorable William P. Clements, Jr.
Honorable Bill Presnal .                -    PageFive   (Mu-61)
HonorableHome? A. herder


           euthorized to charge varying rates within the above limitations
           baaed upon ths type and loeatiti of parking space made available
           +cepted by a date employ*

     Thk provisiondoesnot set asIdeor dedicate funds for anyputposer so it k not an
item of appropriatiar and k not sub&at to veta
     Tha Poard of Control has ,ashed if it k prohibited from establkhing ‘a minimum
par&in6rate which k bw,u thm the six dollam per month set out In the ?ider. In essence
theBoardkaMngUtheriderkvali&
     lt k well established in T&     that
           [iJn edditian to appropriating money end ttipulating the amount,
           manner, and purpose of the various items of expenditure, a general
           eppropriatkn bhl may contain         provision Q riders which detail,
           limit, or restrict the use of the“p umk or otherwke insure that the
           money is spent for the required nativity for which~it k therein
           appropriated, if the provisionsor riders Sn peeesar
           provided
                 theydonot conflict
                                 withgenerallegkl8uan.
Attbrn+ Genersl OpinionV-l234 (Nil).
      This ride neither eppropriates nor deteils, limits or testrjcts
                                                                   the use of f&s. It k
instead a general directiveto the State Board of Control to we certain affirmative
8cU0n,andit maynot validlybe included in tha General~ropriations       Act Accordi@y,
the Board of Control las tha authority to set parking rateam@r the authority gmnted it
hy sectian 30 of article 678t, V.T.C.S., and it k not limited to the minimum and
;r~itguxml)mteset out in the eppropriations act. See also 37-e By 1673, 68th Leg.,
   .       .

     The next two provkions of the Act rdse identkel issues They ares
             Funds epproprieted to The University of Texas et &II Antonio for
           the fiscal yrxy ending A-    3l,l979 are hereby reappropriated for
           the bknnium ending August 3Ll98L
             ....
             See. 15. Any unexpended balances as of August Sl,        198.0, not
           otherwke restricted and ,remaining in the various          item&z of
           appropriatiau to the Youth Council and tk institutions      under its
           jurkdiction are apptiopriated for’ the fiscal year         beginning




                                            p.   160
HonorableWilliam P. Clemenls, Jr.
HonorableBill Presnal                  -   PageSIx     (MW-51)
HonorableHomer A. Foerster


           September 1,1980, for construction projects and major   repairs.   The
           funds will be restricted to ths followingr
             YOUTH COUNCI& RUILDINGAND REPAIRPROORAM

             L     Repair sewer lift Station at West Texas ChIldrenb Home
                   NTR, $33,000.
             2.    Repair cr repkcement of institution&lstreets, perhing ktS,
                   curbs and gutters, tjTE 6225,000.
        These two provisions appropriate funds remaining unspent from the prior biennhrm’r
appropriationto the two agencies. It has been suggested that. the kngusge merely directs
ths ‘we of funds appropriated elsewhere, in this case in the prior epproprintions sect The
19784979 appropriations, however, expire on Atqust Sl, 1979. Acts 1977, 65th Leg., ch
872, et 2699; z Tex. Const. art. Vlll, S 6. Ths 1979-1980epprupriationa art rot available
until 8eptegbe.r l, 1979. The two provisions set aside or dedicate funds for a specific use.
AamdingIy,     they are items of appropriation and are subject to veto by the Covernor.
    The next provision you have questioned Is in the portion of the Act relating to the
Departmenl of Highways and Public Transportatiot~ R providesr
               in order to insure the maintensnee, preservation and cuutructkn
            of a system of highways roadways ed streets within the stete,
            there shall be $ progrem dfsigmd to eccomplish improvements in
            traffic flow tid design in cooperation with the polttical sub-
            dMskm of the state eindin .conmmce and furtherance of federal
            wway      polky to repante cco@sted, hasimbw end dangerow
            gmde intemeeticns of highways and ‘railways with the ultimate
           .objective of eccompllshing a sepemUan of ‘the two gro4md
            transportation       ems ‘and there is. hereby ~appropckted Pive
            MUlion Dollars F $5,000,000) per year from the General Revenue
            Fund to accomplish theqe objectives Provided further that general
            revenues of the state appropriated for the fmpkmentation of this
            ridershankmimbursedtathcStatcRraangrhould.f~ralf~
           ,beeome evaikhle for these pue             The Sate Dep&ment of
            Highways and Public Trensportation shall have’ such power and
            authority .to eccompIish said objective ss necemary and shah
          .,administer funds from the general revenue of the state as
            appropriated herein, together with funds provided from .fe&ml
             sources; furthr, the Department shall set up administrative rules,
            regulations, orders and stemlards to administer the outlay of such
            funds, and shall determine a priority for orderly implementntion of
            the separations to be undertaken.
      The legislature spproprhted a large lump sum for contract construction. See item
3(d), p 111-85. That sum includes SS million per year from non-general revenue runds for



                                            P. -161
HonorableWiliiam P. Ciements, Jr.
Honcmble Sill Presnal                  -    Page Seven    (M+511
Honcmble Homer A. Poerster


grade separations. The paragraph whkh was vetoed and is reproduced above provides an
additional $5 million per yeer fcr this purpose fmm the general revenue fm& It Indicates
that a specific amaunt is apprcpriatedfor 4 qxaifk purpom The language does not refer
ta funds appropriated aisewhere in the Act Accordingly, the sentence apprcpriating $5
milk0 per year from the general revenue fund was aubkct to veto. The approprktion
from nongeneral revenue funds is, of comae, not affacted by the veto.
    The final veto in question involved college building funds     Tha language whkh the
Governorsought to veto providesr
             sech        CO&EQE EUILDMQ FUNDS. ’ There also are
           appropriated far use the allocations from the building funds created
           by Article VU, Sections l7 and 18, of the State Constitution, to the
           respective institutis and for the Ourposesspecified therein.
      All of the funds~allocated by article VII,section 18 are appropriated elsewhere in the
Act, see General AppropriationsAct, pp. III-28 -El-29, and thus are not subject to veto.
     Tim final qucstian,‘then, is whether the article VII, section 17 funds are subject to
veto. While the language of artkle lV, section s’of ‘the appropriaticns act would typically
be subject to veto, the funds may be appropriated by the constitution itself.    If so, any
further appropriation would ba unnecemary and the funds would be beyond the veto
authsrity.

      Artkle VU, ae@on 17 of the Texas Constitution imposes an ad valorem tax and
p~tides a serka of formulae by whkh the funds are to&beallocated’among several state
m@po+ed colleges and universities. The governing ,bo&ds of :the instituticns are
Urthorizedto pletQe funds allotted to each institutkn to secure bonds and notea. Article
w,sectkn17goesaltoprovidez

              The State Comptroller of Publia Accounk shall draw ail
           necc~andpcparwMantruponthcstatcTreasurpkordat0
           carryoutthepurposcolthbAmcndmcnt,urdthtStateReMurer
           rhanpayrruranBn,igU6dOUfOrtharpcc.~fundhercbycrcated
           for aaid putpose. Ttds Amendment ahall be aelf-enactin& ,. . ..

     An earlier version of this amendment was considered by the Attorney General in
Attorney General Opinion V-798 U949). The Attorney General said:
             There is, neceaserily involved in your request; though not
           definitely pzsentss& the question of whether or not these funds are
           subject to legislative appropriatiar as a prerequisite to expenditure
           by the c+ge.s.      We *em it appropriate to answer that question
           now.     The answer k in the negative.          This Constitutional



                                           p.   162
Honorable William P. Gleme&, Jr.
Honorable Bill Resnal                 -    PageEight     ~~-31)
Honorable Homer A. Poerster


          Amendment, by its exprem terms, is self-enacting in aii of its
          details. It specifically lcvic~ the tax, designates the use to nMah
          thefundcrecrtedbythetaxic*gshallbsapglicdbytheBoardof
          Regents, and dlmcts the Comptrolier to issue and the State
          Tmasumr ta pay warrants dnwn ~upon this special fund thus
          created. An appropriaticn in a ccnstitutional sense may be by
          legishtive act cr constitutiaul declaration. This ir of the latter
          chss.     The effect    of thi apliait    dimctions found in this
          Gonstituticnal Amendment, now a pert of ths organic law of this
          State, levying the tsx, creatiq a special fund from such levy,
          qmcifying the purposesfor wtich it may be spent, and directing the
          manner of its dtsbumement, &early remove this special fund from
          the limitatiaw of Article WI, Section 6 of the Constitution of tMs
          State, which providew940 money shall be drawn from the treasury
          but in pursuance of specific appropriation made by larv; nor shall
          any appropriation of money be made for a longer term than two
          ytars’. . .
    Since these funds are appropriatedby the constitution they ere not subject to veto.
                                    SUMMARY
            The Govemor validly vetoad           prcyisions
                                                          of ‘the General
          Approprhticns Act reapproprhtiq unended        ,balances from the
          ghcedhg ‘biennium to the ,Tera+ Youth Council and ,to the
          University of Texas at San Antonio. He also had authority to veto
          an appywhticn to the Department. of Xighwqs and Public
          Tranqodticn ta pay for grade separations.
             Four attempted vetoes were outside the scope of the Gova&(s
          authority and are void. These includaa veto of provisions ralating
          to the Sun Bowl stadium, parking fees charged by ,the Bosrd of
          Control, authaizatim, of aPanditures far a building to be
          -ted         by the Department cf Human Bcsoums andcollege
          building funds

            A rider directing the Board of control to impose certain parking
          fees ~lsinvalid since it is an attempt to enact general legislation in
          the approprjationsact

                                           >~pbfPUK~
                                            !dARK    WHITE
                                            Attorney General of Texas


                                      P.   i63
HonorableWilliam P.Clements,Jr.
HonorableBill ptesnal                  -   PageNine   (MW-51)
HonorableHoma A. poerster



JOHN W. FAINTER, JR.
First AssistantAttorney General

TED L. HARTLEY
Executive Assiitant Attorney General

Preparedby C. Robert Heath
AssistantAttorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
SusanGarrison
Paul Gavia
Rick Gilptn
Terry Goodman
WiIIiamG Reid
David H. Young
BruceYoungblood




                                           p.   164
