    OFFlCE     DP THE   ATTonNE”   GENERAL.   STATE   OF TEXAS

    JOHN         CORNYN




                                                          February 7,200O




The Honorable Bill Hill                                          Opinion No. JC-0178
Dallas County District Attorney
Civil Section                                                    Re: Validity of a rider that allocates monies from the
Administration Building                                          emergency medical services and trauma care system
411 Elm Street                                                   fund ofthe Texas Department of Health (RQ-0132.JC)
Dallas. Texas 75202


Dear Mr. Hill:

         You have requested our opinion regarding the constitutionality of a rider to the General
Appropriations Act for the 2000-01 biennium. For the reasons discussed below, we conclude that
the rider violates article III, section 35 of the Texas Constitution.

        You indicate that, in 1997, the legislature created an emergency medical services and trauma
care system fund as a special account in the state treasury.’ As amended in 1999, section 773.122,
Health and Safety Code, now provides, in relevant part:

                            (a) The commissioner,     with advice and counsel from the
                        chairpersons of the trauma service area regional advisory councils,
                        shall use money in the account established under Section 771.072(f)
                        to fund county and regional emergency medical services and trauma
                        care systems in accordance with this section.

                           (b) The commissioner shall maintain a reserve of $250,000 of
                        money appropriated from the account for extraordinary emergencies.

                            (c) In any fiscal year the commissioner shall use at least 70
                        percent ofthe appropriated money remaining in the account, after any
                        amount necessary to maintain the reserve established by Subsection
                        (b) is deducted, to fund, in connection with an effort to provide
                        coordination with the appropriate trauma service area, the cost of
                        supplies, operational expenses, education and training, equipment,
                        vehicles, and communications systems for local emergency medical
                        services.   The money shall be distributed on behalf of eligible



             ‘Act of May 28, 1997,7Sth Leg., R.S., ch. 1157, 1997 Tex. Gen. Laws 4360.
The Honorable Bill Hill - Page 2                   (JC-0178)




                recipients in each county to the trauma service area regional advisory
                council for that county, if the regional advisory council is
                incorporated as an entity that is exempt from federal income tax
                under Section 501(a), Internal Revenue Code of 1986, and its
                subsequent amendments, by being listed as an exempt organization
                under Section 501(c)(3) of the code. For a county for which the
                regional advisory council is not incorporated as such an entity, the
                money shall be distributed to the county on behalf of eligible
                recipients. The share ofthe money allocated to the eligible recipients
                in a county’s geographic area shall be based on the relative
                geographic size and population of the county and on the relative
                number of emergency or trauma care runs performed by eligible
                recipients in the county. Money that is not disbursed by a regional
                advisory council or a county to eligible recipients for approved
                functions by the end of the fiscal year in which the funds were
                disbursed shall be returned to the account to be used in accordance
                with Subsection (t).

TEX. HEALTH & SAFETY CODE ANN. 5 773.122(a)-(c)           (V emon   Supp. 2000) (emphasis added).

        In 1999, there was also enacted a rider to the appropriation   for the Department   of Health that
bears on the allocation formula. Rider 61 provides:

                Trauma Formula Distribution. It is the intent of the Legislature
                that the Department of Health allocate at least 40 percent to urban
                counties and at least 60 percent of the Emergency Medical Services
                allotment to rural and frontier counties.

General Appropriations     Act, 76th Leg., R.S., ch. 1589, 1999 Tex. Gen. Laws 5446, 5603. A
proposed rule ofthe Department of Health adopts the 60-rural/40-urban requirement of the rider and
only then applies the statutory formula based on “relative geographic size and population”:

                    (t) Calculation   of county shares

                        (1) EMS allotment

                            (A) Counties will be classified as urban or rural based on
                            the latest official federal census population figures.

                            (B) The EMS allotment will be divided into a 40%
                            allocation for urban counties and a 60% allocation for
                            rural counties.
The Honorable Bill Hill - Page 3                  (X-0178)




                           (C) An individual county’s share of the EMS allotment
                           shall be based on its relative geographic   size and
                           population as compared to all other counties of its
                           classification.

24 Tex. Reg. 8088 (1999) (to be codified as an amendment to 25 TEX. ADMIN. CODE
5 157.130(l)(l)(A)-(C))   (proposed Sept. 10, 1999) (Tex. Dep’t of Health) (emphasis added). You
suggest that the modification required by Rider 61 violates article III, section 35 of the Texas
Constitution which provides, in relevant part: “No bill (except general appropriation bills, which
may embrace the various subjects and accounts, for and on account of which moneys are
appropriated) shall contain more than one subject.” TEX. CONST. art. III, 5 35(a). The appropriation
of funds from the state treasury is considered a single subject for purposes ofthis provision. Jessen
Assoc., Inc. v. Bullock, 531 S.W.2d 593,600 (Tex. 1975).

       The law with regard to riders has long been settled in Texas, as summarized          in Attorney
General Opinion JM-115 1:

                        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 appropriated funds or that is
               merely incidental to an appropriation is valid. Jessen Assoc., Inc.,
               supra, 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. Sheppard, 192 S.W.2d 559 (Tex. 1946); see
                also Attomey GeneralOpinionsMW-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. Strakev. Court ofAppeals, 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 also Attorney General
                Opinions JM-885 (1988); H-1158 (1978); M-1199 (1972); V-1254
                 (1951).

 Tex. Att’y Gen. Op. No. JM-1151 (1990) at 5-6; see also Tex. Att’y Gen. Op. No. DM-93 (1992).

        Under these standards, we conclude that Rider 61 is invalid. As we have noted, section
 773.122(c) establishes a formula for distribution of emergency medical services/trauma care funds
 “based on relative geographic size and population of the county and on the relative number of
The Honorable   Bill Hill - Page 4               (Jc-0178)




emergency or trauma care runs performed by eligible recipients in the county.” The rider imposes
an intervening layer on this formula by requiring that the funds first be allocated on a 60-40 rural-
urban basis. As interpreted by the Department of Health, the statutory formula will be imposed only
after this initial allocation. In our opinion, Rider 61 represents an attempt “to alter existing
substantive law,” and, as such, “is a general law which may not be included in an appropriations
act.” See Strake v. Court ofAppeals, 704 S.W.2d 746,748 (Tex. 1986). We conclude therefore that
Rider 61 contravenes article III, section 35 of the Texas Constitution.

                                        SUMMARY

                        Rider 61 to the appropriation for the Department ofHealth in
                the General Appropriations Act for the 2000-O 1 biennium attempts to
                amend general law and therefore contravenes article III, section 35
                of the Texas Constitution.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
