f-.
April 6, 1988
Nr. John Hille Opinion No. JR-885
Acting Executive Director
Texas National Guard Re: Construction of certain
Armory Board riders to the current appro-
P. 0. Box 5218 priation for the National
Austin, Texas 78763 Guard Armory Board (RQ-1210)
Dear Mr. Hille:
You have requested an opinion construing a rider in
the current appropriations act which provides that certain
.expenditures from appropriations to the National Guard
Armory Board say be made only through interagency
contracts with the Adjutant General's Department. The
relevant items of appropriation, found in the combined
appropriation to the Adjutant General*s Department and
National Guard Armory Board, are as follows:
ADJUTANT GENERAL'S DEPARTMENT/NATIONAL GUARD
ARMORY BOARD
For the Years Ending
August 31, August 31,
19881989
National Guard Armory Board:
a. Administration and
Support Services $ 2,820,441 $ 2,905,817
b. Acquisition and
Construction 4.670.710
Total, Facilities
Acquisition S 2.820.441 s 7.576.527
Facilities Maintenance:
a. National Guard
Armory Board $ 2,594,467 $ 2,638,584
b. Adjutant Generalas
Department 2,020,513 2,020,513
C. Utilities, National
Guard Armory Board 2.366.709 2.366.709
Total, Facilities
Maintenance S 6.981.689 S 7.025.806
p. 4323
Mr. John Hille - Page 2 (JM-885)
General Appropriations Act, Acts 1987, 70th Leg., 2d C.S.,
ch. 78, art. I, at 525. The rider you inquire about is
rider 17, which provides as follows:
17. Expenditures from Item 4.b. Acquisi-
tion and Construction, and Item 5-a. Facili-
ties Maintenance, National Guard m-Y
Board, be made [sic] only through inter-
agency contracts with the Adjutant General's
Department. In addition, from Item 4.a.
Administration and Support Services, expen-
ditures of $146,826 in fiscal year 1988 and
$233,802 in fiscal year 1989 shall be made
only through interagency contracts with the
Adjutant General's Department.
L at 525. you suggest that the Adjutant General's
Department lacks authority to engage in construction
and that it may not enter into a contract under the
Interagency Cooperation Act to provide construction
services to the National Guard Armory Board. V.T.C.S.
art. 4413(32), 53.
The validity of an appropriations act rider is deter-
mined by reference to article III, section 35, of the
Texas Constitution, which provides in part:
Sec. 35. (a) No bill, (scent aenera
a&mm=-Uon bills. mav anbrace ths
various subjects uunts. for ud on
aunt of which monevs aremriated)
shall contain more than one subject .
(Emphasis added.)
Tex. Const. art. III, 535. The Texas Supreme Court has
explained the underlined language as follows:
Despite the apparent exception for general
appropriations bills, it has been held
that they too must be limited to a single
subject, which is the appropriation of funds
to be paid from the State Treasury. a
, 144 Tey. 537, 192 S.W.2d 5;;
, 92 Tex. 451,
Se?- Texas Attorney
General Opinion No. V-1254 (1951).
Jessen Associates. Inc. v. Bullock 531 S.W.2d 593, 600
(Tex. 1975). An "item of approprjation" sets aside or
dedicates funds for a specified purpose, while a valid
rider qualifies or directs the use of appropriated funds
p. 4324
,
Mr. John Hille - Page 3 (Jh-885)
or is merely incidental to an appropriation. Jessen
Associates. Inc. v. Bullock SDQI~ at 599. To be valid, a
- rider must be germane to th; appropriation of funds. Id.
at 601. A rider attached to a general appropriation bill
cannot adopt, repeal, modify, or amend an existing general
law. Strake v. Court of Anneals, 704 S.W.2d 746 (Tex.
1986); Moore V. hem rd 192 S.W.2d 559 (Tex. 1946);
Lind n . Fin1 y 49 aS tr 578 (Tex. 1899); Attorney
GenezalVOpinioneVL1254 (195;).
you suggest that rider 17 is invalid on the ground
that the Adjutant General's Department lacks authority to
enter into an interagency contract to construct buildings
for the Armory Board. you argue, in effect, that rider 17
is invalid because it is inconsistent with provisions of
general law governing the Adjut,ant General's Department,
and it thus attempts to amend general law.
The following provisions of the Interagency
Cooperation Act are relevant to your argument:
Sec. 3. Any state agency may enter into
and perform a written agreement or contract
with other agencies of the state for fur-
nishing necessary and authorized special or
technical services, including the services
of employees, the services of materials, or
the services of equipment. . . . Provided,
however, nothing herein shall authorize any
agency to construct any highway, street,
road, or other building or structure for any
other agency, except as otherwise specifi-
cally authorized by existing law. . . .
. . . .
Sec. 5. No agreement or contract may be
entered into or performed which will require
or permit an agency of the State to exceed
its constitutional or statutory duties and
responsibilities, or the limitations of its
appropriated funds.
V.T.C.S. art. 4413(32), §§3, 5.
You point out that the Adjutant General's Department
has no express authority to construct any building. The
National Guard Armory Board, in contrast, was established
to acquire sites and build armories to house the Texas
National Guard and its equipment, and to provide a means
of financing the construction of armories. Texas National
p. 4325
Mr. John Hille - Page 4 @M-885)
Guard AzHQrv Board v. McGraw, 126 S.W.Zd 627 (Tex. 1939);
S&Z Texas Public Buildina Authoritv v. Mattox, 686 S.W.2d
924 (Tex. 1985). The Armory Board
is a public authority and a body politic and
corporate and has all powers necessary for
the acquisition, construction, rental,
control, maintenance, and operation of Texas
National Guard or Texas State Guard armories,
including all property and equipment neces-
sary or useful in connection with the
armories.
Gov't Code 5435.013. It may issue bonds to acquire
building sites or to construct, remodel, equip, or repair
buildings and may lease buildings to the Adjutant
General's Department. Gov't Code §§431.030, 435.023,
435.041(a)..
This brief summary of important provisions governing
the Armory Board shows, its close connection with the
Adjutant General's Department. In addition, the Armory
Board is composed of three senior officers of the Texas
National Guard and three members of the general public who
are appointed by the governor with the advice and consent
of the Senate. Gov't Code S435.004.
Although the Armory Board ha& express power to
construct buildings for the National Guard, it does not
necessarily have exclusive power over construction. The
adjutant general has broad powers which, in our opinion,
include implied authority to build, maintain, and repair
buildings necessary to carry out his responsibilities.
He controls the military department of the state, which
includes the Texas National Guard and the the Texas
State Guard. Gov't Code 55431.022, 431.001(3)(4). The
adjutant general is subordinate only to the governor, who
is commander-in-chief of the state military forces. Gov't
Code 0431.002. He is directed by statute to
perform for the state as near as practicable
the duties that pertain to the chiefs of
staff of the amy and air force and the
secretaries of the military services, under
regulations and customs of the United States
armed forces. . . .
Gov't Code 5431.029(2). Federal law provides that the
Secretary of the Army
p. 4326
Mr. John Hille - Page 5 (JM-885)
is responsible for, and has the authority
necessary to conduct, all affairs of the
Department of the Amy, including the
following functions:
Recruiting.
Organizing.
Supplying.
Equipping (including research and
development).
Training.
I:; Servicing.
(7) Mobilizing.
(8) Demobilizing.
(9) Administering (including the
morale and welfare of personnel).
Maintaining.
I::; The construction, outfitting, and
repair of military equipment.
(12) The construction.
. . maintenance. and
renair of buildinas. structures,
and utjJ,j&&g and the acquisition
of real property and interests in
real property necessary to carry
out the responsibilities specified
in this section. (Emphasis added.)
10 U.S.C. 53013. Section 431.029 of the Government Code,
read together with section 3013 of title 10, United States
Code, gives the Adjutant General some authority to build,
maintain and repair buildings as necessary to carry out
his duties. Moreover, the Adjutant General has authority
to "employ clerks, employees, and Jaborerg as necessary to
carry on the operations of the department." (Emphasis
added. ) Gov't Code 8431.028. The ReDOrt to the Sunset
AdvisoN Commission by the Adjutant General's Department
indicated that the department had responsibility to see
that facilities to house and train the army and air guard
units were constructed and maintained in SeNicable
condition. Adjutant General's Department, ReDOrt to the
Sunset AdvisoN Commission at 2. The department's annual
report for 1987 described the responsibilities of its
Directorate of Facilities Engineering as the development,
acquisition, construction, maintenance and operation of
facilities for the Texas Army National Guard. Ad jutant
General's Department of Texas, Annual ReDOrts, at 22-23.
Construction projects included a warehouse, a troop
medical clinic, and an armory. Id. at 42. Texas National
Guard engineering units performed some of the construction
and maintenance work. Id. at 23.
p. 4327
Mr. John Hille - Page 6 (JW-885)
The Adjutant General#s Department has implied
authority to construct and maintain buildings when
necessary to carry out its statutory responsibilities.
Rider 17 does not confer general law powers on the
Adjutant General's Department, but instead recognizes that
it has authority to provide construction services. Nor
does this rider attempt to confer upon the Adjutant
General's Department the Armory Board's discretion to
decide what construction and repair projects to undertake.
The rider contemplates that the Armory Board will contract
with the Adjutant General's Department, instead of a
private construction company, for the supervision of
construction services necessary to implement its decision.
Rider 17 also requires expenditures for maintenance
of facilities to be made only through interagency con-
tracts with the Adjutant General's Office. As already
pointed out, the Adjutant General's Office has implied
authority to maintain buildings, and the Armory Board's
decisions about building maintenance may be implemented by
a contract with the Adjutant General's Office. Rider 17
requires some of the Armory Board's expenditures for
administration and support services to be made through
interagency contract. Attorney General Opinion RW-352
(1981) decided that the National Guard Armory Board could
contract with the adjutant general under the Interagency
Cooperation Act for the services of employees.
We finally point out that rider 17 differs from the
rider which was said to be invalid in Attorney General
Opinion RW-585 (1982). The rider at issue in that opinion
stated in part:
It is the intent of the Legislature #at
an interagency contract shall be executed
between the State Board of Barber Examiners
and the Texas Cosmetology Commission to
reduce duplication of activities in inspec-
tions, enforcement and examination.
General Appropriations Act, Acts 1981, 67th Leg., ch. 875,
art. I, at 3376. This rider was invalid because it did
not appropriate funds, nor did it detail, limit or
restrict the use of funds appropriated elsewhere. Instead,
it directed the State Board of Barber Examiners and the
Texas Cosmetology Commission to take specific affirmative
action. Attorney General Opinion WW-585 (1982).
Rider 17 is also distinguishable from the rider held
invalid in Attorney General Opinion JW-167 (1984). That
p. 4328
Mr. John Hille - Page 7 (JR-885)
rider to the appropriation for the State Commission for
the Blind provided in part:.
9. It is the intent of the Legislature
that out of funds appropriated above in item
5.~. Older Blind Contract Training an amount
not to exceed $272,146 each fiscal year
shall be expended for entering into a con-
tract with the Texas Lions League or a
similar organization to provide rehabilita-
tive services to blind adults. . . .
Acts 1983, 68th Leg., ch. 1095, art. II, 59, at 5954. The
opinion pointed out that the State Commission for the
Blind had permissive authority to cooperate with public
and private agencies in providing facilities and services
for vocational rehabilitation of blind individuals. Human
Resources Code 891.052(b)(l). The rider attempted to make
mandatory a contract which general law made permissive.
It therefore was invalid general legislation contained in
an appropriations act in violation of article III, section
35, of the Texas Constitution. Attorney General Opinion
JM-167 (1984).
Rider 17 does not attempt to impose a mandatory duty
on the Armory Board to contract with a private entity, or
to enter into any contract at all. Instead, it conditions
the boardrs receipt of appropriated funds for construc-
tion and maintenance on the board's contracting with the
Adjutant General's Department to perform the work. See
ae rallv Attorney General Opinion V-1254 at 10 (1951)
(dyzcussinq appropriations subject to a condition).
General law establishes a close relationship between the
functions of the Armory Board and those of the Adjutant
General's Office, and the appropriations act recognizes
this connection by giving the two entities a combined
appropriation. In view of these circumstances, we believe
the legislature may allocate funding to a cooperative
endeavor between the two entities as it has done in rider
17. See aenerally Attorney General Opinion JR-256 (1984)
(power to allocate public funds between state agencies is
a legislative power). Rider 17 does not attempt to enact,
amend, or repeal a general law in violation of article
III, section 35(a), of the Texas Constitution.
SUMMARY
The Adjutant General's Department,
governed by chapter 431 of the Government
Code, has implied authority to build
and maintain facilities. Rider 17 to the
p. 4329
Mr. John Hille - Page 8 (JM-885)
combined 'appropriation to the Adjutant
General's Department and the National Guard
Armory Board in the current appropriation
act, which provides that an appropriation to
the Armory Board for construction and
maintenance may be spent only throuqh
interagency cokracts bith the- Adjutant
General's Office, does not violate article
III, section 35, of the Texas Constitution.
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4330