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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
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Mr. Kenneth H. Ashworth - Page 2 (JM-1151)
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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
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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.
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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
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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.
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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
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