                                     OFTEXAS

                                 AUSTIN II. TEXAS
 W-ILL   WILSON
ATTORNEYGENERAL
                                      April     16,     1957



   Hon. William S. Fly, Chairman                Opinion        NO. w-96
   Senate Finance Committee
                                                Rl3:     Form, arrangement     and
   Hon. Max C. Smith,      Chairman                      validit     of the Legis-
   House Appropriations      Committee                   lative   9;udget Board
                                                         Draft of General Appro-
   55th Legislature                                      priation    Bill for the
   Austin, Texas                                         State Government for the
                                                         fiscal   years be Inning
                                                         $eptember 1, 19 2 7 end 1958;
   Gentlemen:

                                         Request

         You have requested     our comments on the form, arrangement and
  velidity    of the gineral    appropriation    bill   before   you.  You asked for
  our particular     attention   as to the validity      cf the caption     and the.
  valIdItY    of the.specIal    and general provlsicns       ccntained   fn the,b.ill.
  In conversation,      you have explained     that a line by line,      item by
  item examinaticn      was rPt expected,     but mainly that an examinati-on of
  the, caption   and the special     and general    provisions    was desired.

         Ss are concerned   here with what can be included       by the Leglsla-
   ture In a general   appropriaticn    bill.   Generally,    we are not can-
   cerned with the power of the Legislature       to enact certain     provisions
   or laws, but simply whether the Legislature        csn enact such provisions
   or laws within the structure      of a general  ep;ropriation    bill.

                            Constitutional             Provisions

         The basic  constitutional            provisions    and rules of     law governing
   appropriation   acts and their            contenet    are as follows:

         Section   35 of   Article     III     of   the bonstitution      of Texas:

                "No bill,   (except general    appropriation     bills,    which may
         embrace the various subjrote,epd        aocounts,   for end on account
         of which moneys are’ap$ro$rIQted)        Jh'all contain more than one
         subject,   which shall    be expressed   In Its title.         Eut if any
         subject   shall be embraced in en act, which shall not be ex-
         pressed   in its title,    such act shall    be void only a8 to so
         much thereof     as shall not be so expressed.”       1
                                                                                    -     .




     Hon. lvilliam S. Fly
     Hon. Max C. Smith, paze        2 ( C~UV-96)


           Section   1 of Article     II   of   the Texas      Constitution:

                 "The powers of the sovernment       of the State of Texas
           shall be divided    into three distinct      departments,  each of
           which shall be confided     to a separate     body of magistracy,
           to wit:   those which are legislative        to one; those which
           are Executive   to another;   and those which are Judicial        to
           another;  and no person or collection        of persons,  being of
           one of these departments,     shall   exercI,se   any power prop-
           erly attached   to either   of the others,      except In the in-
           stances herein    expressly  permitted."2

                               Sumnary of       'Lules   of   Law

                From these constitutional       provisions     the following rules
    of law governing   a general   appropriation     bill   have been developed
    by our courts   and by Attorney   Generals'     opin,ions:

           1.   The general    appropriaticn        bill    "may embrace the varicus
          subjects     and accounts,     for and on account of which mcneys are
           appropriated."      Sec. 35 of Art. III of the Constitution             cf
           Texas; Attorney     General's      Opinion No, V-1254 (1951) page 6.
           It may direct    the appropriation          of money and may detail,     lim-
          it or restrict     the use cf funds appropriated             where such crc-
          visicns    are necessarily       connected       with and incidental   to the
           appropriaticn    end use of the funds and if. they dc not ccnflict
           with or amount to oeneral          lesislation:       Conle   v. Daughters
           of nepubllc,    106 T:xo 80, 156 S.W. 197 (TJi3-?-
.
           2.   The appropriaticn    of funds tobe    paid from the State Treas-
           ury for the various     purposes  of zovernment Is the "subject"     of
           general  appropriation    bills.   Moore, et al. v. Sheppard,    14.4
           Tex. 537, 132 S.i.     2d 599 (1946); Attorney    General's Opinion
           lio. v-1254.
           3.   Account;ng   procedures .in connection  with appropriated     funds
           are permissible    as long as they do not confl    ct tiith zenera
           law.   Attorney   General's  Opinion No. V-1254. J-i

           4.   General legislation     constitutes           a separate    subjedt     and
           cannot be Included     withina    general          appropriation     bill.    Moore
           v. Sheppard,   supra.

           5.   A rider attached to a general appropriation     bill cannot
           repeal,    modify, or amend and existing  menera law.
           Daughters    of the tiepublic, (CCA) 151 S:W. 877, 883; %i%?
           V.  Finley,   92 Tex. 451, 49 S.W. 578 (1899);  State v.me,
Hon. dillliam S. Fly
Hon. Max C. Smith, pa::e 3 (~-96)



      57 Tex.  203 (1082).        e’c;e page 10 of Attorney   General’s  Opin-
      icn No.    -1254 for      numerous Attorney   General’s   Opinicns  so
      holding. !

      6. Riders in the genersl a$propriaticn               bill seeking   to con-
      fer upon a jlolnt board composed of members of the Legislature
      (Legislative       Budget tioard) authority      to require further    itemi-
      zation   of appropriated        funds or, approval    of the expenditure
      thereof    violate     Secticn   1 of Article    II of the Constitution
      of Texas, whdch prohibits           the exercise   by the Legislative
      branch of powers properly           attached   to the Executive   branch.
      Attorney     General’s     Opinion V-12.54.

                            Guides   to kpplication

      In applying    these various    rules   of Law, it helps to keep in
mind the definiticn      of a general    appropriation  bill   as distinguis’ned
from general   legislation    and to keep 1.n mind the reasons       zivin;    rise
to Section   35 of Article    III of cur Constitution,       which is the basic
source of all these rules.

      A general appropriaticn     bill  may be. definel  as a single     bill
which aporopriates     funds for tso cr more departments,      subjects,
accounts  or rurposes.      It has the one zenera purpose      or subject     ma
tar cf appropriating     money.   Attorney  General’s   Opinion No. V-12.54. t

      General lsgisiation   does more than appropriate     inoney and limit
.its expenditure.    If the bill  does more than set aside a sum of
money.and provide    the means of its distributicn,    then it 1s a ,general
 law.  Attorney   General’s Obfnf&n No. 2965 (1935).7

       In distinguishing         general    appropriation     bills    from general
legislation      bills,    it is well to ,bear in mind that _?eneral a>propria-
tion bills      are not legislation          in the true sense of the :vord.
Appropriation       bills    are simply the set:.ing        apart of public     funds.
Under our Ccnbtltution           this must be done in the form of a bill.
Section     6 of Article      VIII.provides,       “MO money shall be drazn from
the Treasury,’ but.in         pursuance     of specific.appropriation         made
by law. . .         Section    2    of Article     III provides,      “Aro low shall   be
passed,     except by bill. 4 ‘Thus,’ the act of the Legislature                in s.et-
ting aside public         funds is call d a bill,         but it is not legislation
in the usual sense of the word. 8
                               Scone   of   axamin8t ion

     The examlnati.on       of the general   appropriation      bill     submitted
to us was undertaken        under the followlnq    limitations:
Hon. ~~illian 9. Fly
Hon. Max C. Smith, pa :e 4 W-96)


       (1) The examination has been limited    to the Legislative
      3udC;et board draft as it was suomitted     tc us with your
      letter  and as it was originally   introduced   in eL,ch House.
      IYe have not examined the bill   as lt came out of committee.

      (2)    ute have not undertaken    to examine each item of             appropria-
      tion but have devoted      our attention   to the speclflo            matters
      directed    to ua and called   to our attention.

      (3)   Vie have not examined eaoh item of appropriation      to doter-
      mine that it hasbeen     authoriaed  by rxiating   general  legisla-
      tion.   This la neoesrary    to the vtifdity   of any appropriation.

      (4)   aa have not    examined    tha oorrrctneaa        of   Comptroller’s
      Account numborr inoluded        In the bill.
      (5)    Some provisions    rsam to lraatata axistlnq     cfnstltuticnal
      provlaions    or general   law. If thoae*provirfcna       or laws are
      correctly    atatsd in the aprropr~atlona     related     to them, they
      are valid;    but they cannot amend, modify,      conflict     with cr
      repeal    any such provisicna   or lawa;
      (6)    Becauar of the limita       of    our   examination    we express  no
      opinlon   on the corticns  of      the apcropriation         bill net expressly
      discussed   here.

                           Form and Arrangement

        There are no constitutional     or statutory   requirements     as to
form and arranement       of the provisions    of a general    appropriation
bill.     The only applicable    rule as to form and ax-angement is the
general    one requirin;   clearness   in the expressicn    cf the le$slntive
intent.

                                     CaDClon

      The caption       aa set out on page I-l    la a homplete  and adequate
one.    It covers     and includes   all,matters   which ca:i be constitutionally
included    in such an appropriation       bill.   There are matter in the
bill  not included       In the paption,   but thsro ahould not be in an’
appropriation     bill,    ao changing the caption    would acccmpllsh     nothing.

                    General    and   S~eclal     Provlrlona
       1.   On page I-7,  Section    6 at Article   I of the         bill  deaLing
with over-obligations     by judicial      a&enciea is invalid          in that It is
in the nature of general      legialatlon     and not germane         to a general
apnropriatlon    bll’l.  The Section      does not borically         deal with the
appropriation    of money nor the oonditicna       or limits         of .the appco-
priatian.
Hon. ktiilllam s. E'ly
Hon. Max C. Smith, pa :e 5 (uvif-96)



      2.    On pa;e 11-21,     after providing     for the total    amount of
appropriations      for the Commission on Alcoholism,         there is a provision
attempting     to authorize    the transfer    of certain   land from the tioard
for Texas State hospitals         and "pecial   "chools   to the Texas Corn-isslcn
on Alcoholism.        This provision    is invalid    as a part of a general
apL,roprlatlon    of money or an incidental        part of the appropriation
of money.

        3.    On pu;e 11-32.    in the second paro;raph        of Subsection     d
of Section      2 of Article    II of the bill,      there is a provision      that
certain     salary rates must have the written           approval   of the Governor
"with the advice of the Legislative             Budget Board."      If construed
as a part of or a ccndltlon         of ap:~roval,     this wtuld te unconstltu-
tlcnal     as it is an attempt to best an executive            pow@r in a jolng
committee of the leglslatlve         brance in violation        of Sectlcn   1 of
Article     II of the Texas Constitution.          Attorney    General's   Oplnlcn
v-1254     (1951).   TMs statement       aprlles   to the use of the same
provision      or  hrase as follows:       pa e II-32     in Section    4, Article
II; pa-,e II-3 E , Subsectlcn      b of Set &ion 12, Article        II; page III-20
at the top cf the pave; pate 111-82 in the last paragraph under
the approprlatlcn       provisions    for t:-e Texas Prlscn system.

      4.    On pages II-32      and 33, Sectlcn      7 of Article   II of the bill
dealing   with admlsslcn       and der~crtaticn    of non-residents     is invalid
as a subject      of zenera     legislat'cn     and not an aoproprlatlcn      cf rub-
llc funds nor necessarily          ccnnected   with nor incidental      to such
appropriations.       These prcvlsicns       in Sectlcn   7 cannot amend, modify
or repeal existing       general    1aN dealing    with this subject,     nor can
it enact general      leglslaticn      on the subject.     See Articles    3194,
3193g, 3194, 3195 and other articles             in Title  51, "ernon's    Texas
Civil   Statutes.

       5.   On pase II-&,    Section    11 of      Article   II of the bill      author-
izing    the sale of surplus    properties       is invalid    for the purpose of
grant-ing     any authority  to the boards         to sell   any surplus property
or equipment.      Such authorization      1s    a matter of general       legisla-
tion;    it is not properly    a subject    in     a general   apprcprlat?on      bill.

       6.  On paze III-57    of the bill,    after  the total   figure  shown
for the board of Insurance        Gommlssioners,   there are several    paragraphs
dealing   with the quallficaticns     for certain    employees.     The first,
second,   third,  and sixth paragraphs      on that page are invalid      because
those paragraphs    decl with the quallficatlons        of employees.     This is
a matter for ,Teneral legislation.
Hon. ~~llliwm S. Fly
Hon. Max C. Smith, pa:;e



       7.  On page III-TO,     there are appropriations         for the Doard
of Naturcpathic     Examiners.     Your attention     is called     to the fact
that the IJaturcpsthic    Acy, which ,urould 'be the basic law supporting
such appropriations,     has been held unconstitutional            by the court
of Civil   Appeals (Austin)     in the case of iJill "ilson,         et al, v.
State Yoard of Naeuropathic        ExamYne~rs, et al.,      296 S ..Y
                                                                    " IZd 941,
 pending en applicat;cn      for writ of error),        and in Attorney     keral's
Opinion s-60.     If the Court of ~1~11 Appeals’           judgment is not
reversed,   such appropriations       would be invalid       as not being
authorized   by exlstin;    constitutional     le$slation.

        8.  On ps,;e III-lll'ln         the third paragraph under Section         4 of
Article    III of the bill,        there is a prcvislon        attempting   to fix
the price     for furnishing       photostatic    copies    for private    use by a
department or agency.           This provision      if invalid     as bein= a subject
for general      leglslatlcn.       The rates charged by the Secretary           of State
are fixed by general          law.    It is possible     under exlst!~n= leTlsl:ticn
that the departments          cculd fix the costs under their general            authority,
but it cannot be done in a general              apcrccrlatirn      bill.

       9.  On ps :e IV-l,     Section   2 cf Article      IV of the bill  desling
with the e3l;lblllty       of junior    colleges     fcr &prropr;atirn   seems to
be a restatement     of Articles      2815j-2,    Verncn's   Texas Civil  stat<]-
tes.    To the extent     that it restates       that law it is a ccnvznient
reference   to that l,ar, but it cannot amend, modify cr repeal              any
such provis'cns     cfthe    general    law.

       10.     On pqe v-8,     the secon.: pnrqraoh    after   the aprropraticn
for the administrative         and general cffices   cf the Texas A;ricuIture
S: Liechanical     Cclle;e  L'ystem attempting   tc aut:?ori-e    certain cnvest-
ments of the special        mineral fund is invalid     as being a subject      cf
general     legislatlcn    and not properly    a part of a Ceneral apnrcpria-
tlt,n bill.

       11.   On page V-20, the last parnjraph          cf the scctlcn       iealin;:
with Sam Iiouston State Teachers        bolle:e    purports     to authorize
contracting    &f.th the Prison bystem for electric            power.    '&is
provislcn    is invalid   as not bein:     a ;iroper sublect      for a ;encral
appropriation    bill.    It does more than direct          the o;:::ro;:riz.tlrn    cf
money and limit      and control   its expenditure.        Further,    it is our
opinion    that is is in ccnflict      with Article     kl3(32),      Verncn's
Texas "1v11 Statutes,       'which Luthorlzes     contractin;:    .ctween two
such agencies.
.       ‘.




    Yen. ~~illitnn S. Fly
    Hon. Max C. Smith, page 7 (~~-96)



           12.    Secticns    30 throqh    I+1 of Article    VI of the bill
    appearing     on pages VI-8 through VI-11 deal ,qenerally            'with the
    subject    of travel    expenses    of State officials      and employees.
    These provislcns       are valid    tc the extent that they are pursuant to
    Article    6&3, Vernon's      Texas Civil    dtetutes,    wh!ch provides        that
    travelin:     and other necessary      expenses    shall be fixed end apsro-
    priated    by the Legislature       in the general     apnrourlatlon     bills.
    nowever,     as noted in the authorities        cited   in this ooinion,        these
    provisicns     cannot enact,     amend, modify nor repeal        any general
    law on this subject        cf travel   expenses    of State officials        end
    employees.

                                  General Comments
           We hope that it is clearly       understood    that the purpose of a
    general    appropriation   5111 is to appropriate        money from the State
    Treasury    for authorized    State purposes.       It is not the purpose of
    such a bill      to enact zenera    legislation     and any provisicn  or "rider"
    other than E mere appropriation         must pertain     or be related or be
    Incidental     to the purpose or use of tine funds appropriated.
    Even then it is sometimes difficult           to dotemine    whether a provisicn
    or rider    is properly   related   to cr incidental      to the use cf the fu;:?s
    appropriated.

          At several   places    in the bill    the words "assign    and transfer"
    were used with regard to funds.          lrhen these words can be construed
    to mean e appropriate"     or ear used for,'      then such prcvisicns    a-e
    valid  as so ccnstrued.       On the ether hand, the transfer        and
    assignement   cf funds are not properly         a part of apcropriaticn     bills
    but ere separate    subjects    unless   they are directly    connected   with
    or incidental    tc an appropriation       item.

           At several    places  in the bill    the expression      "hereby authorized"
    was used.      The granting   of authority     is generally     not a proper
    subject     for a general   sprropriation    bill    but is a melter frr gene.-al
    legislation      where the safeguards     which go with zenera        legislaticn
    was available.       In some cases it has been possible          to construe      this
    expression      in another manner and thus mate it a valid provision.
    In other instances       the grant of the authority        was considered
    superflous     as being e restatement      of existing     authority    or authority
    inherently     vested in the aplropriation        bill  es such a bill      cannot
    be the source of authority        for the use of the appropriation           in the
    bill.
Hon. ur'illiam S- Fly
Hon. Max C. Smith, page        A   brw-96)




                                        Very   truly    yours,


                                        #ILL WILSON
                                        Attorney General         of   Texas



                                         By Lawrence Jones
                                             Assistant

LJ:lm/PAM

APi'ROVED:
OPINIOX COUk!ITTEE:

H. Grady Chandler,
              Chairman
J. C. Davis
S. V. Geppert
C. K Richards
Jo'n Reeves

                                   FOOTNOTES:

1).   In construing    the general  rule and the limited     exception    con-
      tained in Secticn     35 of Article   III of our "onstituticn,      such
      Section   should be examined and construed      in connectirn    ;vith
      Section   14 of Article   IV of our Constitution.     The aprliczble
      parts of that Section     are as follows:

         "Every bill     which shall have passed both Houses of
         the Legislature       shall be presented         to the ;cvernor fcr
         his approval.       If he approves         he shall sign it; but if
         he disapproves      it, he shall        return it, with his objec-
         tions,   to the House in flhlch it originated,              which House
         shall enter the c,bjecticns           at large upon its Jcurnal           and
         proceed   to reconsider       it.    . .(Provisicns      fcr overriding
         a veto,   failing     to return a bill         end objection     after
         adjournment).       If any bill       presented     to the Governor
         contains    several     items of appropriation,          he may object      to
         one or more of such items aiid approve the ether porticns                      of
         bill.    In such case, he shall            ap:end to the bill       at the
         time of signing       it a statement cf the items tc :r!iich he
         objecta,    and no item so objected            to shall    take effect.
         If the Legislature         be in sesslcn,       he shall    transmit    tc the
         House in which the bill           originated     a copy of such state-
    ,




Hon.William 3. Fly
Hon. Max C. Smith,        raze   9 (WV-96)



            ment and the items objected      to shall be secarately
            considered. . .(Similar    provisions    for cverriding
            a veto nnd objections   after   adjcurnment).a

    It seems evident       that it is the ini,entic,n         of the bonstituticn
      that all bills     passed by the Legislature             shall be subject
      to the examinntion       and approval       of the "overnor        subject     tc the
      provision    for overriding       his disapproval.         The bonstituticn
      established     n rule that each bill          shall contain     one subject.
      It makes a limited       exception     to that rule to make it clear
      that an appropriation        bill    might contain       a number cf aprro-
     priaticns     and accounts.        The Constitution        then mnde prcvisl.cn
      to cover the review of this limited               exception    by providin;
      that the Governor can review the opropriation                   bills,     item 5;
      item.     These  provisicns      are  related,     contained    in   the  same
      document,    and must be construed          toscthcr.

        It would follow    that such "items"     as may be apzroved or dis-
        approved by the kvtrnor       are such "subjects"     as mny be included
        in an appropriation     bill.    It would alsc follow     that any matter
        which would not be subject       to the vetc of the Governor as 6n
        "item"   in a general   aporoprietion    bill is such E matter as
        is not croperly    contained   as s "subject"     in s l;enerol Spiro-
        priation   bill  as provided   fcr in Section     35 of Article   III
        of our Constitution.       Thus the "subjects     end accounts"   which
        may be ac?rroved or disapproved       under Secticn   14 of Article
        IV of our Lonstituticn.

   2).There are other constitutional       provisions     relating to the
     power of the Legislature     tc ap:ropriate      State money and limita-
     tions on those Eowers.     'Yhosc provis'cns      are not directly   re-
     lated to the cuestlcn    here as tc what can constituticnnlly
     be included  in a general    np;ropriLtion     bill.

        Some cf those     other ccnstituticns.1         provisic,ns   ts   tc   the basic
        :>orwer and its   limitntlcns   are is       fellows:

              Section   6 of Article      VIII
              Section   3 of Article      VII
              Section   7 of -Article      I
              Secticn     9a of Article       III
              Section   !A of Article     XVI
              Sectlcn   39 of Article       XVI
              Section   j'i,of Article      XVI, all     of   the Constitution
                     of the State of      ,i'exas
    3).The purpose of the limited                exception   tc the general
     rule of Section 35 of Article                III of: cur Constituticn        was to
Hon. William 9. Fly
Hon. MELXC. amith, page        10 ~~-96)



     make certain   that anrropriations       to more 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.
     Moore v. sheppard,     supra; Attorney      General’s   Gpinion No. v-1254.

    4). Riders providing        for accounting        procedures      in connection
     with the funds appropriated,            limiting     the use of contingent
     expense apcropriat icns,        setting      the rates for travel         expense
      to be paid from the funds to State employees,                   specifying      the
     time of payment of salaries           appropriated        and prohibiting       the
     use of appropriated        funds for the peyment of salaries                to “Any
     employee who uses alcoholic           activities       while on nctive       duty”
     or who engazes in certain          political      activities      are v&lid in
      a general    appropriation     bill   because they merely detail,
     limits, or restrict       the use of the funds apcropriated               or other-
     wise insure     that the money ~111 be used for the purposes                    intended.
     They do not constitute         additional       subjects.    of general     legis-
     lation   in violation      of Section      35 of Article       III of the Texas
     Constitution.       Attorney    5eneral’s       Opinion Ro. V-1254, page 10.

   5).  Section    35 of Article   III of our Gonstitution    does not give
     any authority    to pass new laws or repeal    old ones through the
     medium of a general     ap,proprlstion bill.   Ccnley  v. Daughters
     of the Reoublic,,lSl      $.W. 877, 863.

   6). Attorney     General’s  Opinion No. 2965 (193.5’) says that we
     should be governed by the ordinarily     accepted   meaning of
     “appropriation    bill”  and quotes as accepted   definitions  the
     following:

            “A setting    apart from the public   revenue of a certain
            sum of money for a specific    object    in such a manner that
            the executive    cfficers of the government are authorized     to
            use that money and no more for that object       and for no
            other.   C. J. ~01 4. Page 1460.”

    7). General legislation     may contain an aprropriation      which is
     merely incidental      to and necessary    to carry out the subject
     and purpose of the general      law.    Attorney   General’s  Opinion
     NO. 2965.
Hon. <uilliam S. Ply
Hon. Max C. Smith, page     11 (w-96)



      S).The Arizona Supreme Court has sold:              “The general
      appropriation       bill   is not in the true sense of the term legis-
      latl,on,     it is, as the langua:ge implies,       merely  e settin,?  opsrt
      of the funds necessary         for the use and maintenance        of the various
      departments       of the State government already        in existence   and
      functioniq.”         Sellers   v. FrVhmiller,     24 P. 2d 66~+~6~e(Ariz.
      SUD.    19331.
               ,.-.      The Nevada Suvreme court has saqd:
      appropriaticn       bills,   as inhicated   by the titles,     are passed
      for support of the State government,            and are not legislative
      acts changing the substantive           cr feneral   law..  . .I’ State
      v. iiipgrs,     136 ~aLC. 100, 101 (Nevi hp.        1913).
