Untitled Texas Attorney General Opinion

--.. Honorable Preston Smith Opinion No. C-443 Lieutenant Governor Capitol Station Re: Validity of a "rider" ap- Austin, Texas pearing in the General Appropriation Bill, House Bill 12, at Section 4, page V-33, and purport- ing to provide for manda- tory retirement at the age of seventy (70) of statu- tory officers and employees Dear Governor Smith: of the State: You have requested an opinion from this office concerning the: 11 . . . validity of a 'rider' appearing in the General Appropriat,ionBill (H.B. 12) at Sec- tion 4, Page V-33, purporting to provide for mandatory retirement at age 70 of statutory of- ficers and employees of the State. Constitutlon- al officers, as you will note, are excepted from its provisions." Section 4 of Article V of House Bill 12 of the 59th Legis- lature, the General'Appropriation Bill, provides that: "Sec. 4. LIMITATION OF EMPLOYMENT BEYOND AGE 70. None of the moneys appropriated in Articles I, II and III of this Act shall, after September 30, 1965, be paid as compensation for personal services to any person over age 70 who holds an appointive public office or position of public employment, created or authorized by statutory enactment, and who is eligi- ble forkretirement benefits under any retirement sys- tem provided by the State of Texas or to which it contributes. Incumbents of offices or positions cre- ated by the Constitution of this State are specific- ally excepted from the provisions of this section. Moreover, this section shall not prohibit the payment of compensation, otherwise due, for the month in which a person becomes 70 years of age. For the purpose of -2103- -- . Honorable Preston Smith, page 2 (C-443) making the prohibition in this section effective, every person who holds an appointive public office or position of public employment for which an ap- propriation is made in Articles I, II and III here- of, and to which office or position this section does apply, and who is or will become 70 years of age or more by September 30, 1965, shall execute in duplicate, and file as hereinafter provided, a sworn statement on or before September 30, 1965, on a form prescribed by the Comptroller of Public Accounts showing: (1) the month, day and year of his or her birth; (2) the place of birth; (3) the month, day and year when such person became, or will become, 70 years of age; (4) whether onthe date shown in the preceding item such person was, or will be, eli- gible for retirement benefits under a retirement system provi.dedby the State of Texas or to which it contributes; (5) the name or title of the office or position ,held and of the employing governmental agency; and (6) such other information as the Comp- troller may require for the enforcement of this sec- tion. One copy of the statement shall be filed with the Comptroller and the other shall be filed with the administrative head or officer or the court, judicial unit, hospital or special school, executive, legisla- tive, administrative, or other governmental depart- ment or agency responsible for preparing the payroll on which the name of the affiant appears. Incumbents of offices or positions to which the prohibition in this section applies, and who attain the age of 70 between September 30, 1965 and September 1, 1967, shall execute and file the sworn statement herein- above described not less than 45 days before the date on which the affiant attains the age of 70. Any person who is required to file the foregoing state- ment and who, without good cause, fails to do so, shall be conclusively presumed to have neglected the performance of an assigned duty, and pursuant to Arti- cle 16, Section 10, of the Constitution of the State of Texas the Comptroller shall not thereafter pay any warrant in favor of such person from any funds, of any character whatsoever, appropriated by this Act. Every person responsible for making up a payroll for the month of October, 1965, shall omit therefrom the names of all persons who were 70 years of age or over on or before September 30, 1965, and to whom this section applies. In making up a payroll for succeed- ing months in the fiscal years of 1966 and 1967, the . -,. Honorable Preston Smith, page 3 (c-443) names of all such persons and of those persons who became 70 years of age during the preceding month shall be omitted therefrom." It is well established that general legislation cannot be included within a general appropriation bill. Moore v. Sheppard, 144 Tex. 537 192 S.W.2d 599 (1946); Attorney ‘General'sOpinions ~~~~~:,S~lIh~~“,“rr-96 (1957) - In addition, it is also well rider" in a general appropriation bill cannot repeal, modify or amend an existing general law. Conley v. Daugh- ters of the Republic, 106 Tex. 80, 156 S.W. 197 (1 inden v. 49 S.W. 578 (1899); State v. ?',%et 57 Tex General’s Opinions No. V-1254 (1951) and Article 6252-14, Vernon's Civil Statutes, enacted by the 58th Legislature in 1963, provides that: "Section 1. It is hereby declared to be the policy of the State of Texas that no person shall be denied the right to work, to earn a living, and to support himself and his family solely because of age. “Set tion 2. No agency, board, commission, de- partment, or institution of the government of the State of Texas, shall establish a maximum age under sixty-five (651 yesrs nor a minimum age over twenty- one (21) years'fbr employment, nor shall any person who is a citizen of this State be denied employment by any such agency; beard, ccmmission, department or institution or any political subdivision of the State of T exas sole? becauselof age; provided, however, nothing in th s Act sha 1 be construed to prevent the imposigion of,minimum and maximum age restrictions for law enforcement peace ,officers or for fire- fighters; provided, further, that the provisions of this Act shall not apply to institutions of higher education with established retirement programs. "Section 4. The fact that older persons often meet with resistance to employment solely because of their age and the further fact that citizens of this State should be allowed to earn a livinn, to work, and to support themselves and their famziies, and-be- cause such persons should not be denied the opportun- ity of employment by any agency, board; commission, -2105- ..,- Honorable Preston Smith, page 4 (C-443) department, or institution of the government of the State of Texas, creates an emergency . . .I'(Em- phasis added). The foregoing general legislation prohibits,the various agencies, boards, commissions, departments and institutions of the State of Texas from refusing employment to any person who is a citizen of the State solely because of age. Therefore, the pro- visions of Section 4 of Article V of House Bill 12 of the 59th Legislature modifies or amends the existing general law set out in the provisions of Article 6252-14, Vernon's Civil Statutes. In the case of Caldwell v. Board of Regents of the Univer- sity of Arizona, 54 Ariz. 404, 96 P.2d 401 (1939) the Supremr Court of Arizona had before it the question of thi validity of a "rider" in the general appropriation bill enacted by the Lkgisla- ture of the State of Arizona, which would prohibit a husband and wife being included at the same time on the payrolls mentioned in the general appropriation bill. The court in its opinion, which held such rider was void, stated that: "In the case of State v. Angle, Ariz., 91 P. 2d 705, 708, the question again arose as to how far the biennial appropriation bill could contain in its appropriation legislation other than the mere appropriation of money for the purposes set forth thereunder, and we said" l* + * After a care- ful review of the cases. we think the rule laid down thereby may be stated as follows. appropriation bill can contain nothing bue the a - propriation of money for specific purposes, and such other matters as are merely incidental and necessary to seeing that ,themoney is properly ex- pended for that purpose only. Any attempt at any other legislation in the bl-11is void. * * *I 1, . . . "We think there can be no question that, as was said in'the Gros.ieancase. sunra. *in the light -2106- Honorable Preston Smith, page 5 (C-443) 'In the absence of constitutional or statutory, disqualification all persons are eligible to public employment whom the appointing officers select, re- gardless of age, sex, status orother qualifications. People ex rel. v. McCormick, 261 Ill. 413, 103 N.E. 1053, Ann.Cas.l915A, 338. It is a well knownfact that for many years a number of employees of then state, in its various activities, have been husband and wife. In the absence of the proviso under con- sideration there is no doubt that marital status is not the slightest legal impediment to the employment of any person by the state. If the proviso is valid it automatically disqualifies one half of our married citizens from such employment. The question of whether legislation having this purpose and effect is morally just, economically sound, or politically expedients, is not one for the courts to consider. Whether the legislature may constitutionally enact ~suchlegisla- tion in any manner is not necessary for us to deter- mine in the present case,. But to hold that legisla- tion having this purpose and far .reachingeffect is 'merely incidental and necessary to seeing that the money is properly expended for that purpose only' is to substitute the shadow for the substance, and to disregard the purpose and effect of the proviso en- tirely. 11 . . . "In the later case of State ex rel. Whittier v. Safford; 28 N.M. 531, 214 P.759, 760, considering the same subject, the court said: '* * * The details of expending the money so appropriated, which are neces- sarily connected with and related to the matter of providing the expenses of the government, are so re- lated, connected with, and incidental to the subject of appropriations that they do not violate the Consti- tution if incornorated in such general appropriation bill. It is only such matters as are foreign, not re- lated to, nor connected with such subject, that are forbidden. Matters which are germane to and natural- ly and logically connected with the expenditure of the moneys provided-in the bill, being in the nature of detail, may be incorporated therein. * * *I" (Em- phasis added). In view of the foregoing authorities, we are of the opinion that the "rider" appearing in the General Appropriation Bill, -2107- Honorable Preston Smith, page 6 (C-443) House Bill 12 of the 59th Legislature, at Section 4, page V-33, which would purport to provide for the mandatory retirement at age seventy (70) of statutory officers and employees of the State of Texas is invalid for the reason that such 'rider" would have the effect of'repealing or modifying the provisions of Article 6252-14. In addition to the foregolng,'we are of the further opin. ion that the aforesaid "rider" falls wlthin the classification of being general legislation and is, therefore, not properly included within a general appropriation bill. SUMMARY The "rider" appearing in House Bill 12 of the 59th Legislature, the General Appropriation Bill, which purports to provide for mandatory re- tirement at age seventy (70) of statutory officers and employees of the State is invalid for the reason that it modifies or repeals the provisions contained in Article 6252-14, Vernon's Civil Stat- utes, and for the further reason that said "rider" is a subject for general legislation and cannot properly be included withklna general appropria- tion bill. Yours very truly, WAGGCRRR CARR Attorney General PB:JR:ms -2108- Honorable Preston Smith, page 7 (C-443) APPROVED: OPINION COMMITTEE W. V Geppert, Chairman J. C. Davis John Banks Marietta Payne W. 0. Shultz APPROVED FOR THE ATTORNEY,GENERAL By: Stanton Stone -2109-