.




                             March 27, 1990



    Mr. Kenneth H. Ashworth           Opinion No.   JM-1151
    Commissioner
    Texas Higher Education            Re:   Eligibility for the Op-
      Coordinating Board              tional Retirement System, and
    P. 0. Box 12788                   related  questions  (RQ-1858)
    Austin, Texas   78711

    Dear   Mr. Ashworth:

         On behalf of the Texas Higher Education    Coordinating
    Board, you ask several  questions relating to the construc-
    tion and effect  of a rider to the General    Appropriations
    Bill enacted during the regular session of the 71st Legisla-
    ture. The rider, found in article III of the Appropriations
    Act, provides the following:

P                Sec.   31. TAMD SERVICES     RETIREMENT   AND
              BENEFITS.    It is the intent of the Legisla-
              ture    that    professional    administrative,
              research and extension employees      in higher
              education be eligible for the same retirement
              and benefit    options   as faculty  of higher
              education.

    Acts 1989, 71st Leg., ch. 1263, at 5677.

         Your concern centers around the eligibility of the em-
    ployees   described   in the rider to participate        in the
    optional   retirement   system    offered  by   state-supported
    institutions of higher    education.   Section  830.101 of the
    Government Code,    formerly   section 36.101  of title    llOB,
    V.T.C.S., establishes eligibility criteria for participation
    in the optional retirement system:

                  (a) The governing board of each    institu-
              tion of   higher   education shall  provide  an
              opportunity to participate in the optional
              retirement program to all faculty members    in
              the component    institutions governed  by the
              board.

                  (b) Eligibility   to participate in the
              optional retirement   program is subject to



                                    P- 6074
                                                                   r
Mr. Kenneth H. Ashworth    - Page 2   (JM-1151)
                                                               .   >


        rules adopted by the Texas Higher         Education
        Coordinating Board.

            (c) A person      who before     September    1,
        1987, had chosen        to participate     in    the
        optional retirement program and who was par-
        ticipating in the program on September            1,
        1987,  is entitled   to  continue to    participate
        in the program until       the person    terminates
        participation     as     provided    by     Section
        830.105(a).

For the purposes of this section, a faculty member is a per-
son employed  by an institution of higher education    on a
full-time basis as

           (A) a member of the faculty whose         duties
        include teaching or research:

            W   an administrator    responsible         for
        teaching and research faculty;

           (C) a member of the administrative    staff
        of the Texas Higher  Education   Coordinating
        Board: or

            (D) a professional    librarian,   a presi-
        dent,   a chancellor,   a vice-president,     a
        vice-chancellor, or other professional    staff
        whose   national  mobility   requirements   are
        similar to those of faculty members and who
        fills a position that    is the subject of na-
        tionwide searches in the academic community.

Gov't Code 5 821.001(8).

     Pursuant to section 830.101(b), the Coordinating  Board
has adopted a rule further defining the subgroups enumerated
in section 821.001(8):

           In    accordance     with    [Gov't     Code
        5 821.001(8)], governing boards shall use any
        of the following   definitions of a full-time
        faculty member   for determining   eligibility
        for participation in the Optional   Retirement
        Program.

               (1) A member   of the   faculty whose
           duties include teaching or research   shall
           mean all persons whose   specific   assign-
           ments  are   made  for   the purpose     of



                                P. 6075
Mr. Kenneth H. Ashworth   - Page 3 (JM-1151)




           conducting instruction   or research   as a
           principal activity   (or activities),    and
           who hold titles of professor,     associate
           professor, assistant   professor,   instruc-
           tor, instructor [sic], lecturer, or equi-
           valent faculty title.

               (2) An administrator    responsible   for
           teaching  and research faculty shall mean
           deans, directors, associate deans,     assis-
           tant deans,    chairpersons,   or heads    of
           academic departments    if their principal
           activity is planning, organizing, and di-
           recting  the activities     of faculty     as
           defined in paragraph (1) of this section.

               (3) A member   of the administrative
           staff of the Texas Higher Education    Coor-
           dinating Board shall mean a member of the
           Texas Higher Education   Board staff whose
           assignment would  require college    gradua-
           tion and prior     experience   in    higher
           education or experience   of such kind   and
           amounts   to provide   a  comparable   back-
           ground, whose  national mobility    require-
           ments are similar to those of faculty    and
           who fills a position   that is the subject
           of a nationwide   search in the academic
           community.

               (4) A professional librarian, a presi-
           dent, a chancellor, a vice-president,         a
           vice-chancellor   shall mean     a librarian
           with a degree   in library science,     presi-
           dents,     chancellors,      vice-presidents,
           vice-chancellors,     deputy     chancellors,
           associate and assistant      vice-presidents,
           associate and assistant    vice-chancellors,
           or the equivalent.

               (5) Other professional    staff person
           shall mean administrative and professional
           positions that are generally and custom-
           arily recruited by advertising in national
           publications   such as the Chronicle     of
           Higher   Education  or in newsletters    of
           national professional   associations or at
           meetings of such associations.     In addi-
           tion, each administrative or professional
           position must be at a salary       rate for
           faculty for the institution.



                               Pm   6076
Mr. Kenneth H. Ashworth    - Page 4   (JM-1151)




                     (A) Administrative positions    shall
                 normally report   to the office     of a
                 chancellor, president, vice-chancellor,
                 vice-president, or dean.   Incumbents of
                 such positions   serve as director     or
                 other administrative   head of a major
                 department or budget    entity.    Incum-
                 bents of such positions must be:

                       (i) appointed by the governing
                       board or the chief administrative
                       officer of the institution,     or
                       his/her delegate: and

                       (ii) responsible for the prepa-
                       ration and administration of the
                       budget, policies,   and programs,
                       of the department or entity.

                     (B) Professional   positions    shall
                 include positions in nationally    recog-
                 nized   fields which   require   advanced
                 degrees and/or specialized professional
                 or artistic   training, experience,   and
                 achievement.     These   would    include
                 titles   such as physicians,     athletic
                 coaches, engineers, and lawyers.

19 T.A.C.    § 1.6.

     The rider in question appears to expand the class     of
employees eligible to participate in the optional retirement
program beyond that authorized by section   830.101.  It is
this apparent conflict in expressions of legislative  intent
that prompts your questions.

     You ask the following questions:

        1.       Does [article   III] section  31 of the
                 appropriations bill or [section 830.101
                 of the Government   Code] govern  eligi-
                 bility   for the Optional     Retirement
                 Program: or do they both apply?

        2.       If only [section 830.101] applies,     is
                 section 31 considered moot?

        3.       If only section 31 applies, is [section
                 830.101] considered moot, and does each
                 institution have authority to interpret
                 the language of section 31?
    Mr. Kenneth H. Ashworth   - Page 5   (JM-1151)




            4.     If both     section 31   and    [section
                   830.101] apply, how is Optional Retire-
                   ment Program eligibility  to be deter-
                   mined when there are differences in the
                   interpretation of the two provisions?

            5.     Finally, since the caption for section
                   31 reads 'TAMU SERVICES AND BENEFITS,'
                   does this section   apply only to Texas
                   A & M University,   or to all institu-
                   tions,  including universities,  medical
                   schools, technical   institutes and ju-
                   nior/community colleges?

         A rider to an appropriations bill    is scrutinized   in
    light of article III, section 35, of the Texas Constitution,
    which provides the following in pertinent part:

                (a) No bill,   (except general appropria-
            tions bills,  which may embrace the various
            subjects and accounts, for and,on account   of
            which moneys are appropriated) shall contain
            more than one subject.

P   The appropriation    of funds from the state treasury        is
    considered   a single    subject  for the purposes    of this
    provision,   despite   the apparent   exception  for   general
    appropriations bills.    Jessen Assoc..  Inc. v. Bullock,  531
    S.W.2d 593, 600 (Tex. 1975) (and cases cited therein).

           A valid rider may detail, limit, or restrict the use
    of appropriated  funds.   Attorney  General  Opinion   V-1254
    (1951). A rider that qualifies or directs    the use of ap-
    propriated funds or that is merely incidental to an appro-
    priation is valid.  Jessen Assoc., Inc., suora, at 599. So,
    too, is a rider that merely implements or is declarative   of
    existing general law. See Attorney General Opinions    JM-786
    (1987): JM-343 (1985).

          A rider may not, however, embody matters of general
    legislation.     Moore v. Sheooard, 192 S.W.2d 559 (Tex. 1946);
    see also Attorney      General   Opinions  MW-585    (1982); MW-51
    (1979). A rider that attempts to alter existing substantive
    law is a matter       of general legislation     that may   not be
    included in a general      appropriations act. Strake v. Court
    Of ADDealS,    704 S.W.2d 746 (Tex. 1986). Thus, a rider       that
    amends,     modifies,   repeals,   or  conflicts   with    existing
    general law or that attempts to nullify a constitutional
    provision other than article III, section         35, is invalid.
    See id.; Linden v. Finley,        49 S.W. 578   (Tex. 1899);    see




                                     P. 6078
Mr. Kenneth H. Ashworth   - Page 6   (JM-1151)




&qg Attorney General Opinions JM-885      (1988); H-1158   (1978);
M-1199 (1972); V-1254 (1951).

     With respect to the powers     of state agencies, a rider
to an appropriations bill may not confer        a power    on an
agency that   it does not possess     under general   law.    See
Attorney General Opinion C-447 (1965). A rider may not make
mandatory   that which    general   law makes    discretionary.
Attorney General    Opinions  JM-167   (1984); MW-104    (1979);
C-119 (1963). As to the eligibility of state employees        for
certain benefits, this office has concluded that a rider may
set forth eligibility criteria     in the absence of statutory
criteria, but it may not establish      criteria that conflict
with general   law.    See Attorney    General  Opinion    JM-407
(1985).

     Section 830.101 of the Government       Code provides    only
that "faculty members," as that term is defined in section
821.001,   are eligible    to participate     in the     optional
retirement program, subject     to rules adopted   by the Texas
Higher Education Coordinating     Board.   Rider 31, meanwhile,
would permit   "professional    administrative,   research,    and
extension employees in higher     education" to participate     in
the optional   retirement   plan, as well as allow       them   to
receive the same benefit      options as faculty members.       It
gives no precise   definition of the class      of employees    it
covers, and may thus be susceptible to the kind of contra-
dictory and open-ended interpretations you ask about in your
third and fourth     questions.    Rider 31 may therefore       be
viewed as an attempt      to amend    section   830.101   of the
Government Code.   It may also be perceived as an attempt       to
dislodge the discretion    conferred by section 830.101       upon
the Texas   Higher Education    Coordinating Board to further
refine the eligibility     criteria.    For these   reasons,    we
conclude that   rider   31 of article      III of the General
Appropriations   Act   for the 1989-1991      biennium   embraces
matters of general     legislation and is therefore       invalid
under article III, section 35, of the Texas        Constitution.
Strake, sunra; Jessen Assoc., Inc., w;         Moore, suora.

     In answer   to your  first question, we conclude    that
section 830.101 of the Government Code governs   eligibility
to participate in the optional retirement program establish-
ed by chapter 830 of the code. Rider 31 of article III of
the General Appropriations Act for the 1989-1991 biennium is
invalid to the extent it attempts to expand    the class   of
employees eligible to participate in the optional retirement
program beyond that authorized by section 830.101 and rules
adopted pursuant   to that section.   Our response  to your
first question makes it unnecessary to address your  remain-
ing questions.



                                P. 6079
Mr. Kenneth H. Ashworth      - Page 7   (~~-1151)




                          SUMMARY

           Section 830.101    of the Government      Code
        governs eligibility    to participate     in the
        optional retirement    program   established   by
        chapter 830 of the Government Code. Rider 31
        of article III of the General     Appropriations
        Act for the 1989-1991     biennium, Acts    1989,
        71st Leg., ch. 1263, at 5677, to the extent
        it attempts to expand the class of employees
        eligible   to participate     in the     optional
        retirement   program,   violates   article   III,
        section 35, of the Texas Constitution and       is
        therefore invalid.




                                         JIM     MATTOX
                                         Attorney General of Texas

MARY KELLER
First Assistant   Attorney    General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant   Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




                                  p. 6080
