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
P. 595