f-.
                           April 6, 1988



      Nr. John Hille                   Opinion No.   JR-885
      Acting Executive Director
      Texas National Guard             Re: Construction of certain
         Armory Board                  riders to the current appro-
      P. 0. Box 5218                   priation  for  the National
      Austin, Texas   78763            Guard Armory Board (RQ-1210)

      Dear   Mr. Hille:

            You have requested an opinion construing a rider in
       the current appropriations act which provides that certain
      .expenditures from  appropriations  to the National    Guard
       Armory Board say     be made only     through  interagency
       contracts with the Adjutant General's    Department.    The
       relevant items of appropriation,   found in the combined
       appropriation to the Adjutant General*s    Department   and
       National Guard Armory Board, are as follows:

             ADJUTANT  GENERAL'S   DEPARTMENT/NATIONAL        GUARD
             ARMORY BOARD
                                        For the Years Ending
                                      August 31,    August 31,
                                      19881989
             National Guard Armory Board:
             a. Administration and
                 Support Services    $ 2,820,441     $ 2,905,817
             b. Acquisition and
                 Construction                          4.670.710

               Total, Facilities
               Acquisition            S 2.820.441    s 7.576.527

             Facilities Maintenance:
             a. National Guard
                 Armory Board        $ 2,594,467     $ 2,638,584
             b. Adjutant Generalas
                 Department            2,020,513         2,020,513
             C.  Utilities, National
                 Guard Armory Board    2.366.709         2.366.709
               Total, Facilities
               Maintenance            S 6.981.689    S 7.025.806



                                   p. 4323
Mr. John Hille - Page 2      (JM-885)




General Appropriations Act, Acts 1987, 70th Leg., 2d C.S.,
ch. 78, art. I, at 525.   The rider you inquire about is
rider 17, which provides as follows:

            17. Expenditures from Item 4.b. Acquisi-
         tion and Construction, and Item 5-a. Facili-
         ties Maintenance,    National   Guard  m-Y
         Board, be made    [sic] only through   inter-
         agency contracts with the Adjutant General's
         Department.   In addition,    from Item 4.a.
         Administration and Support Services,   expen-
         ditures of $146,826 in fiscal year 1988 and
         $233,802 in fiscal year 1989 shall be made
         only through interagency contracts with the
         Adjutant General's Department.

L   at 525.    you suggest that the Adjutant  General's
Department  lacks authority to engage   in construction
and that it may not enter into a contract under     the
Interagency  Cooperation Act   to provide  construction
services to the National Guard Armory Board.   V.T.C.S.
art.   4413(32),   53.

     The validity of an appropriations act rider is deter-
mined by reference to article III, section     35, of the
Texas Constitution, which provides in part:

            Sec. 35.  (a) No bill, (scent      aenera
         a&mm=-Uon     bills.        mav anbrace   ths
         various subjects uunts.           for ud   on
         aunt    of which monevs   aremriated)
         shall contain     more than   one    subject .
         (Emphasis added.)

Tex. Const. art.  III, 535. The Texas Supreme Court           has
explained the underlined language as follows:

          Despite the apparent exception for      general
          appropriations    bills,  it has been        held
          that they too must    be limited to a single
          subject, which is the appropriation of funds
          to be paid from the State Treasury.        a
                      , 144   Tey. 537,   192 S.W.2d    5;;
                                      , 92 Tex. 451,
                               Se?-       Texas Attorney
          General Opinion No. V-1254 (1951).

Jessen Associates. Inc. v. Bullock    531 S.W.2d 593, 600
(Tex. 1975).   An "item of approprjation"   sets aside or
dedicates funds for a specified purpose,    while a valid
rider qualifies or directs the use of appropriated funds


                               p. 4324
,

        Mr. John Hille - Page 3   (Jh-885)




        or is merely    incidental to an appropriation.     Jessen
        Associates. Inc. v. Bullock SDQI~ at 599. To be valid, a
    -   rider must be germane to th; appropriation  of funds. Id.
        at 601. A rider attached to a general appropriation bill
        cannot adopt, repeal, modify, or amend an existing general
        law. Strake v. Court of Anneals, 704 S.W.2d 746      (Tex.
        1986); Moore V.     hem rd 192 S.W.2d 559 (Tex. 1946);
        Lind n . Fin1 y      49 aS tr 578   (Tex. 1899); Attorney
        GenezalVOpinioneVL1254 (195;).

             you suggest that rider 17 is invalid on the ground
        that the Adjutant General's Department lacks authority to
        enter into an interagency contract to construct buildings
        for the Armory Board. you argue, in effect, that rider 17
        is invalid because it is inconsistent with provisions of
        general law governing  the Adjut,ant General's Department,
        and it thus attempts to amend general law.

             The   following   provisions   of   the   Interagency
        Cooperation Act are relevant to your argument:

                  Sec. 3. Any state agency may enter into
               and perform a written agreement or contract
               with other agencies of the state for fur-
               nishing necessary and authorized special or
               technical services,  including the services
               of employees, the services of materials,  or
               the services of equipment. . . .   Provided,
               however, nothing herein shall authorize  any
               agency to construct any highway,     street,
               road, or other building or structure for any
               other agency, except as otherwise   specifi-
               cally authorized by existing law. . . .

                  .   .   .   .

                  Sec. 5. No agreement or contract may be
               entered into or performed which will require
               or permit an agency of the State to exceed
               its constitutional or statutory duties and
               responsibilities, or the limitations of its
               appropriated funds.

        V.T.C.S. art. 4413(32), §§3, 5.

             You point out that the Adjutant  General's Department
        has no express authority  to construct any building.   The
        National Guard Armory Board, in contrast, was established
        to acquire sites and build armories to house the Texas
        National Guard and its equipment, and to provide   a means
        of financing the construction of armories. Texas National


                                   p. 4325
Mr. John Hille - Page 4   @M-885)




Guard AzHQrv Board v. McGraw, 126 S.W.Zd 627 (Tex. 1939);
S&Z Texas Public Buildina Authoritv v. Mattox, 686 S.W.2d
924 (Tex. 1985). The Armory Board

       is a public authority and a body politic    and
       corporate and has all powers necessary      for
       the   acquisition,    construction,    rental,
       control, maintenance, and operation of Texas
       National Guard or Texas State Guard armories,
       including all property   and equipment   neces-
       sary or useful      in connection   with    the
       armories.

Gov't Code 5435.013.      It may issue bonds to acquire
building sites or to construct, remodel,    equip, or repair
buildings  and may      lease buildings  to    the Adjutant
General's   Department.    Gov't Code §§431.030,    435.023,
435.041(a)..

     This brief summary of important provisions governing
the Armory  Board shows, its close connection    with the
Adjutant General's  Department.  In addition, the Armory
Board is composed  of three senior officers of the Texas
National Guard and three members of the general public who
are appointed by the governor with the advice and consent
of the Senate. Gov't Code S435.004.

     Although   the Armory Board ha& express power to
construct buildings for the National   Guard, it does not
necessarily have exclusive power over construction.    The
adjutant general has broad powers which, in our opinion,
include implied authority  to build, maintain,  and repair
buildings necessary  to carry out his responsibilities.
He controls the military  department of the state, which
includes the Texas National Guard and the the Texas
State Guard. Gov't Code 55431.022, 431.001(3)(4).      The
adjutant general is subordinate only to the governor, who
is commander-in-chief of the state military forces. Gov't
Code 0431.002. He is directed by statute to

       perform for the state as near as practicable
       the duties that pertain to the chiefs of
       staff of the amy     and air force and the
       secretaries of the military services,  under
       regulations and customs of the United States
       armed forces. . . .

Gov't Code 5431.029(2).    Federal   law   provides that   the
Secretary of the Army




                           p. 4326
Mr. John Hille - Page 5    (JM-885)




       is responsible  for, and has the authority
       necessary to conduct, all affairs   of the
       Department  of the    Amy,  including  the
       following functions:

                  Recruiting.
                  Organizing.
                  Supplying.
                  Equipping (including research and
                  development).
                  Training.
           I:;    Servicing.
           (7)    Mobilizing.
           (8)    Demobilizing.
           (9)    Administering (including the
                  morale and welfare of personnel).
                  Maintaining.
           I::;   The construction, outfitting, and
                  repair of military equipment.
           (12)   The construction.
                               . . maintenance. and
                  renair of buildinas. structures,
                  and utjJ,j&&g and the acquisition
                  of real property and interests in
                  real property necessary to carry
                  out the responsibilities specified
                  in this section.   (Emphasis added.)

10 U.S.C. 53013. Section 431.029 of the Government Code,
read together with section 3013 of title 10, United States
Code, gives the Adjutant General some authority to build,
maintain and repair buildings as necessary to carry out
his duties. Moreover, the Adjutant General has authority
to "employ clerks, employees, and Jaborerg as necessary to
carry on the operations     of the department."     (Emphasis
added. ) Gov't Code 8431.028. The ReDOrt to the Sunset
AdvisoN  Commission by the Adjutant General's      Department
indicated that the department had responsibility to see
that facilities to house and train the army and air guard
units were constructed      and maintained     in SeNicable
condition.   Adjutant General's   Department, ReDOrt to the
Sunset AdvisoN   Commission   at 2. The department's annual
report for 1987 described      the responsibilities   of its
Directorate of Facilities Engineering as the development,
acquisition, construction,    maintenance  and operation    of
facilities for the Texas Army National Guard.        Ad jutant
General's Department of Texas, Annual ReDOrts,      at 22-23.
Construction   projects  included a warehouse,       a troop
medical clinic, and an armory. Id. at 42. Texas National
Guard engineering units performed some of the construction
and maintenance work. Id. at 23.



                            p. 4327
Mr. John Hille - Page 6   (JW-885)




     The Adjutant      General#s    Department   has    implied
authority   to construct     and maintain     buildings    when
necessary to carry out its statutory         responsibilities.
Rider 17 does not confer general         law powers     on the
Adjutant General's Department, but instead recognizes that
it has authority   to provide construction services.        Nor
does this rider attempt to confer upon the Adjutant
General's Department    the Armory Board's discretion        to
decide what construction and repair projects to undertake.
The rider contemplates that the Armory Board will contract
with the Adjutant    General's    Department,   instead of a
private   construction   company,   for the supervision      of
construction services necessary to implement its decision.

     Rider 17 also requires expenditures for maintenance
of facilities to be made only through interagency      con-
tracts with the Adjutant General's     Office. As already
pointed out, the Adjutant   General's   Office has implied
authority to maintain  buildings, and the Armory    Board's
decisions about building maintenance may be implemented by
a contract with the Adjutant General's Office.    Rider 17
requires some of the Armory      Board's expenditures   for
administration and support services to be made through
interagency contract.   Attorney   General Opinion RW-352
(1981) decided that the National Guard Armory Board could
contract with the adjutant general under the Interagency
Cooperation Act for the services of employees.

     We finally point out that rider 17 differs  from the
rider which was said to be invalid in Attorney    General
Opinion RW-585 (1982). The rider at issue in that opinion
stated in part:

          It is the intent of the Legislature   #at
       an interagency  contract shall be executed
       between the State Board of Barber Examiners
       and the Texas Cosmetology     Commission   to
       reduce duplication of activities in inspec-
       tions, enforcement and examination.

General Appropriations Act, Acts 1981, 67th Leg., ch. 875,
art. I, at 3376. This rider was invalid because     it did
not appropriate    funds, nor did it detail,     limit or
restrict the use of funds appropriated elsewhere. Instead,
it directed the State Board of Barber Examiners and the
Texas Cosmetology Commission to take specific affirmative
action. Attorney General Opinion  WW-585 (1982).

     Rider 17 is also distinguishable from the rider held
invalid in Attorney  General Opinion JW-167 (1984). That



                            p. 4328
Mr.   John Hille - Page 7    (JR-885)




rider to the appropriation for          the State Commission   for
the Blind provided in part:.

            9. It is the intent of the Legislature
         that out of funds appropriated above in item
         5.~. Older Blind Contract Training an amount
         not to exceed $272,146 each fiscal year
         shall be expended for entering into a con-
         tract with the Texas Lions League or a
         similar organization to provide  rehabilita-
         tive services to blind adults. . . .

Acts 1983, 68th Leg., ch. 1095, art. II, 59, at 5954. The
opinion pointed  out that the State Commission for the
Blind had permissive  authority to cooperate with public
and private agencies in providing facilities  and services
for vocational rehabilitation of blind individuals.  Human
Resources Code 891.052(b)(l).  The rider attempted to make
mandatory a contract which general   law made permissive.
It therefore was invalid general legislation  contained in
an appropriations act in violation of article III, section
35, of the Texas Constitution.   Attorney  General Opinion
JM-167 (1984).

     Rider 17 does not attempt to impose a mandatory duty
on the Armory Board to contract with a private entity, or
to enter into any contract at all. Instead, it conditions
the boardrs receipt of appropriated    funds for construc-
tion and maintenance on the board's contracting    with the
Adjutant General's Department   to perform the work.    See
ae rallv Attorney General Opinion V-1254 at 10 (1951)
(dyzcussinq appropriations    subject   to a    condition).
General law establishes   a close relationship  between the
functions of the Armory Board and those of the Adjutant
General's Office,   and the appropriations act recognizes
this connection   by giving the two entities a combined
appropriation.   In view of these circumstances, we believe
the legislature may allocate     funding to a cooperative
endeavor between the two entities as it has done in rider
17. See aenerally Attorney General Opinion JR-256 (1984)
(power to allocate public funds between   state agencies is
a legislative power). Rider 17 does not attempt to enact,
amend, or repeal a general    law in violation of article
III, section 35(a), of the Texas Constitution.

                            SUMMARY

              The Adjutant    General's   Department,
         governed by chapter 431 of the Government
         Code, has    implied authority    to   build
         and maintain facilities.   Rider 17 to the


                      p. 4329
Mr. John Hille - Page 8   (JM-885)




       combined 'appropriation    to the   Adjutant
       General's Department and the National   Guard
       Armory Board in the current appropriation
       act, which provides that an appropriation to
       the Armory   Board    for construction    and
       maintenance  may be     spent only    throuqh
       interagency  cokracts    bith the- Adjutant
       General's Office, does not violate    article
       III, section 35, of the Texas Constitution.




                                     Attorney General of Texas

MARYKELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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