                          QBfficeof tfp I?lttornep General
                                      Bbtate of fhxae
DAN MORALES
 ATTORNEY
      GENERAL                             May 11.1992

     Mr. Dan Roberts                     Opinion No. DM-116
     chairman
     Texas Board on Aging                Re: Validity of a rider to the current
     P. 0. Box 12786                     appropriation to the Texas Department on
     Austin Texas 78711                  Aging which requires the department, under
                                         certain circumstances, to use the service
                                         standards, systems, billing, audit procedures, and
                                         provider bases used by the Department of
                                         Human Services (RQ- 288)

     Dear Mr. Roberts:

            You have requested our opinion regarding the validity of a rider to the
     current appropriation to the Texas Department on Aging (hereafter “TDoA”). That
     provision, numbered “Rider 9,”states as follows:

               Where services under Title III [of the Older Americans Act] and
               Options for Independent Living are substantially equivalent to
               those provided by the Texas Department of Human Services
               Community Care programs, the [TDoA] shall use the service
               standards, systems, billing and audit procedures, and provider
               bases used by the Department of Human Services to eliminate
               unnecessary duplication.

     General Appropriations Act, Acts 1991, 72d Leg, ch. 19, art. II, 0 1, at 686; see
     Hum. Res. Code $9 101.041- 101.049 (Options for Independent Living).

            You first ask whether TDoA’s compliance with this rider would violate the
     federal Older Americans Act and the regulations applicable thereto. See 42 USC.
     09 30013057n Determination of this matter is ultimately a federal question, and
     no pronouncement by this office would be conclusive. It is not, in any event,
     necessary to reach this issue, since we conclude that rider 9 is unconstitutional under
     Texas law.




                                              p. 593
Mr. Dan Roberts - Page 2                  (DM-116)




        Article III, section 35 of the Texas Constitution prohibits the enactment of
general legislation in a general appropriations bii. See Moore v. Sheppard, 192
S.W.2d 559,561 (Tex. 1946); Attorney General Opinions MW-51 (1979); V-1254,
V-1253 (1951). A rider to a general appropriations bili may do no more than
“detail, limit, or restrict the use of the [appropriated] funds or otherwise insure that
the money is spent for the required activity for which it is therein appropriated.”
Attorney General Opinion V-1254 at 17 (citing summary). A rider is invalid if it
attempts to “confer an affirmative duty” on a state agency. Attorney General
Opinion JM-167 (1984).

        In Attorney General Opinion MW-585 (1982). this office considered a rider
to the appropriation to the State Board of Barber Examiners. That rider stated:

              It is the intent of the @]egislature that an interagency
          contract shall be executed between the State Board of Barber
          Examiners and the Texas Cosmetology Commission to reduce
          duplication of activities in inspections, enforcement and
          examinatioIl


Attorney General Opinion MW-585 (citing General Appropriations Act, Acts 1981,
67th Leg., ch. 875, art. I, at 3376). The opinion held that this rider was invalid, since
it failed to “appropriate any funds nor does it detail, limit or restrict the use of funds
appropriated elsewhere.” Id at 2. On the contrary, the opinion found that the rider
was “a general directive to the State Board of Barber Examiners and the Texas
Cosmetology Commission to take specific affirmative action.” Id. The opinion
concluded that the rider “constitutes general legislation”; that it was therefore
“violative of article III, section 35 of the Texas Constitution”; and that as a result, it
was “void and of no effect.” Id. at 2-3.

       In our opinion, the rider about which you inquire is similar in .all particulars
to that held invalid in Attorney General Opinion IvIW-585. It requires TDoA to
take specific affirmative actions: “use the service standards, systems, billing and
audit procedures, and provider bases used by the Department of Human Services.”
Acts 1991,72d Leg., 1st C.S., ch. 19, art. II, Q 1, at 686. It does so for the identical
reason specified in the rider considered in Attorney General Opinion h4W-585: to
eliminate duplication. As laudable as this goal may be, its implementation is not a
proper subject for an appropriations act rider. We are compelled to conclude that
rider 9 constitutes general legislation; that, as such, it is violative of article III,




                                         p. 594
Mr. Dan Roberts - Page 3                 (DM-116)




section 35 of the Texas Constitution; and that, accordingly, it is void and of no
effect.

                                   SUMMARY

              A rider to the appropriation to the Texas Department of
         Aging which ~re-quiresthat agency to zlse the service standards,
         systems, billing and audit procedures, and provider bases used
         by the Department of Human Se&es” constitu@s general
         legislation in contravention of article ItI, section 35 of the Texas
         Constitutions It is therefore void and of no effect.




                                                   DAN      MORALES
                                                   Attorney General of Texas

WILL FRYOR
First Assistant Attorney General

h4ARYKEUF.R
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADEIJ3NE B. JOHNSON
c!hdr, opinion committee

Prepared by Rick Gilpin
Assistant Attorney General




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