                                     June 5, 1974

The Honorable   Raymond W. Vowel1                Opinion   No.   H-   321
Commissioner.
State Department of Public Welfare               Re:    Validity of rider to
John H. Reagan Building                                 Department     of Public
Austin, Texas 78701                                     Welfare’s    appropriations
                                                        requiring dentures for
                                                        Public Welfare recipients
                                                        to be made in the labora-
                                                        tory of the Department      of
Dear   Commissioner      Vowell:                        Corrections.

      The current Appropriations  Act for fiscal 1974 and 1975 sets aside
~a sum of money from the Medical Assistance       F’und to be used by the
 Department    of Public Welfare for “Eye Glasses,    Dentures and Hearing
 Aids. ” Acts 1973, 63rd Leg.,   ch. 659, p. 1858, Item 50A(b).    You are
 concerned with a provision apparently intended as a rider to this
 appropriation   which states:

        “(8) In all instances   in which the Department provides,
        out of funds appropriated under Item 52A [sic.,       ,obviously
        intended ,to refer to Item 50A],    dentures for recipients     of
        Public Assistance,    it is the intent of the Legislature   that
        the recipient shall have the choice of dentists,     but the
        plates must be made in the laboratory       of the Department
        of Corrections   from impressions     furnished by the dentist. ”
        Acts 1973, 63rd Leg . , ch. 659, p. 1860. (Emphasis       added)

   .Section   35 of Article   3 of the Texas   Constitution   provides      in 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, whtch shall be expressed
        in its title, ”




                                       p. 1484
The Honorable    Raymond    W.   Vowell,    page 2   (H-321)




The nature of appropriations   bills necessitated    a special exception to the
traditional one subject requirement    to allow inclusion of appropriations
of funds for two or more departments,      subjects,   accounts or purposes
with the one general purpose of appropriating     money and limiting its use.
Attorney General Opinion V-1254 (1951).

     A general appropriations       bill is nonetheless   subject to the consti-
tutional prohibition against including more than one subject in a bill.
The appropriation       of funds is the allowed one subject of the bill and
consequently,      a general appropriations    bill cannot contain another
different    subject,   such as general legislation    through a rider.   An approp-
riation bill or a rider to it may set aside a sum of money for a specific
purpose,    provide the means for its distribution,       and to whom it shall be
distributed,    if the rider is necessarily    connected with and incidental to
the appropriation      and use of funds.

     In our opinion, a rider which is merely declaratory   of existing law,
in many instances may properly limit and restrict an appropriation       by
words directing that the funds “must” be spent in a particular    manner.
However,    in this instance the language requiring that denture “plates
must be made in the laboratory     of the Department of Corrections”   is
a form of general legislation   and is prohibited by Art. 3, Sec. 35 from
inclusion in a general appropriations     bill.

    Item 50A, the “Medical Assistance      Fund” of the appropriation   to
the Department   of Public Welfare,   is the repository of all appropriations
pursuant to the ‘Medical   Assistance   Act of 1967”, Sec. 17, Article 695j-1,
V. T. C. S.

    Section 2 of the latter Act explains that its purpose,  in part, his “to
enable the state to obtain all benefits provided by the Federal Social
Security Act as it now reads or as it may be amended . . . This Act
shall be liberally  construed and applied in’ relation to Federal law and
regulations  . . . . I’

    Section 5 of the state law tracks a federal requirement    by providing
that “No recipient of Medical Assistance    shall be denied freedom    of
choice in his selection of a provider of Medical Assistance    that is
authorized by the State Department of Public Weltire.     ‘I




                                       p.   1485
The Honorable         Raymond    W.   Vows&    page 3   (H-321)




     The provision  of the federal Social Security Act which requires
“free choice” as one aspect of a qualifying State plan for medical
assistance  is Section 1902(a)(23),  codified as 42 U.S. C. A., Sec. 1396(a).
providing:

        “A State plan for medical         assistance    must   -

        .   .   D




        “(23)       provide that any individual eligible for medical
                    assistance  (including drugs) may obtain such
                    assistance from any institution,   agency,   com-
                    munity pharmacy,.    or person,  qualified to per-
                    form the service or services    required . . . ”

    Federal regulations   in defining denture service,  require not only
that dentures be prescribed   by a dentist, but that the dentures be made
by or according to the directions of a dentist.   45 C. F. R., Sec. 249.10      (12)(ii).

     In our opinion, the rider is an attempt to amend the general provision in
Article 6953-1,   Sec. 5, which confers upon a recipient “freedom     of choice in
his selection of a provider of Medical Assistance”,    and is to that extent invalid
as general legislation  contained in an appropriations  bill.           ..

    The Prison-Made     Goods Act of 1963, Article 6203c,    Sec. 9, V. T. C.S.
authorizes  the Department   of Corrections    to supply the requirements    of the
Department of Public Welfare,     if it is able to do so.  However,   in our
opinion, that Act does not require the Department of Public Welfare to use
the prison facilities to make dentures in every instance,     and especially   if
doing so would violate any provision     of the Texas “Medical Assistance     Act
of 1967” or otherwise it could place the state in a position of noncompliance
with Title XIX of the federal Social Security Act, 42 U.S. C. 1396(a), et seq.,
and its applicable federal regulations.

                                SUMMARY

            A rider to the Department of Public Welfare’s
        appropriations  for 1974 and 1975 requiring dentures             for




                                          p.   1486
The Honorable   Raymond   W.   Vowell,        page 4    (H-321)




       welfare recipients    to be made in the laboratory  at
       the Department     of Corrections is invalid as general
       legislation  contained in a General Appropriations,
       Bill in violation of Sec. 35, Article   3.

                                                     Very    truly yours,




                                                            rney General    of Texas




DAVID M. KENDALL,         Chairman
Opinion Committee




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