Untitled Texas Attorney General Opinion

OFTEXAS AUSTIN II. TEXAS W-ILL WILSON ATTORNEYGENERAL April 16, 1957 Hon. William S. Fly, Chairman Opinion NO. w-96 Senate Finance Committee Rl3: Form, arrangement and Hon. Max C. Smith, Chairman validit of the Legis- House Appropriations Committee lative 9;udget Board Draft of General Appro- 55th Legislature priation Bill for the Austin, Texas State Government for the fiscal years be Inning $eptember 1, 19 2 7 end 1958; Gentlemen: Request You have requested our comments on the form, arrangement and velidity of the gineral appropriation bill before you. You asked for our particular attention as to the validity cf the caption and the. valIdItY of the.specIal and general provlsicns ccntained fn the,b.ill. In conversation, you have explained that a line by line, item by item examinaticn was rPt expected, but mainly that an examinati-on of the, caption and the special and general provisions was desired. Ss are concerned here with what can be included by the Leglsla- ture In a general appropriaticn bill. Generally, we are not can- cerned with the power of the Legislature to enact certain provisions or laws, but simply whether the Legislature csn enact such provisions or laws within the structure of a general ep;ropriation bill. Constitutional Provisions The basic constitutional provisions and rules of law governing appropriation acts and their contenet are as follows: Section 35 of Article III of the bonstitution of Texas: "No bill, (except general appropriation bills, which may embrace the various subjrote,epd aocounts, for end on account of which moneys are’ap$ro$rIQted) Jh'all contain more than one subject, which shall be expressed In Its title. Eut if any subject shall be embraced in en act, which shall not be ex- pressed in its title, such act shall be void only a8 to so much thereof as shall not be so expressed.” 1 - . Hon. lvilliam S. Fly Hon. Max C. Smith, paze 2 ( C~UV-96) Section 1 of Article II of the Texas Constitution: "The powers of the sovernment of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: those which are legislative to one; those which are Executive to another; and those which are Judicial to another; and no person or collection of persons, being of one of these departments, shall exercI,se any power prop- erly attached to either of the others, except In the in- stances herein expressly permitted."2 Sumnary of 'Lules of Law From these constitutional provisions the following rules of law governing a general appropriation bill have been developed by our courts and by Attorney Generals' opin,ions: 1. The general appropriaticn bill "may embrace the varicus subjects and accounts, for and on account of which mcneys are appropriated." Sec. 35 of Art. III of the Constitution cf Texas; Attorney General's Opinion No, V-1254 (1951) page 6. It may direct the appropriation of money and may detail, lim- it or restrict the use cf funds appropriated where such crc- visicns are necessarily connected with and incidental to the appropriaticn end use of the funds and if. they dc not ccnflict with or amount to oeneral lesislation: Conle v. Daughters of nepubllc, 106 T:xo 80, 156 S.W. 197 (TJi3-?- . 2. The appropriaticn of funds tobe paid from the State Treas- ury for the various purposes of zovernment Is the "subject" of general appropriation bills. Moore, et al. v. Sheppard, 14.4 Tex. 537, 132 S.i. 2d 599 (1946); Attorney General's Opinion lio. v-1254. 3. Account;ng procedures .in connection with appropriated funds are permissible as long as they do not confl ct tiith zenera law. Attorney General's Opinion No. V-1254. J-i 4. General legislation constitutes a separate subjedt and cannot be Included withina general appropriation bill. Moore v. Sheppard, supra. 5. A rider attached to a general appropriation bill cannot repeal, modify, or amend and existing menera law. Daughters of the tiepublic, (CCA) 151 S:W. 877, 883; %i%? V. Finley, 92 Tex. 451, 49 S.W. 578 (1899); State v.me, Hon. dillliam S. Fly Hon. Max C. Smith, pa::e 3 (~-96) 57 Tex. 203 (1082). e’c;e page 10 of Attorney General’s Opin- icn No. -1254 for numerous Attorney General’s Opinicns so holding. ! 6. Riders in the genersl a$propriaticn bill seeking to con- fer upon a jlolnt board composed of members of the Legislature (Legislative Budget tioard) authority to require further itemi- zation of appropriated funds or, approval of the expenditure thereof violate Secticn 1 of Article II of the Constitution of Texas, whdch prohibits the exercise by the Legislative branch of powers properly attached to the Executive branch. Attorney General’s Opinion V-12.54. Guides to kpplication In applying these various rules of Law, it helps to keep in mind the definiticn of a general appropriation bill as distinguis’ned from general legislation and to keep 1.n mind the reasons zivin; rise to Section 35 of Article III of cur Constitution, which is the basic source of all these rules. A general appropriaticn bill may be. definel as a single bill which aporopriates funds for tso cr more departments, subjects, accounts or rurposes. It has the one zenera purpose or subject ma tar cf appropriating money. Attorney General’s Opinion No. V-12.54. t General lsgisiation does more than appropriate inoney and limit .its expenditure. If the bill does more than set aside a sum of money.and provide the means of its distributicn, then it 1s a ,general law. Attorney General’s Obfnf&n No. 2965 (1935).7 In distinguishing general appropriation bills from general legislation bills, it is well to ,bear in mind that _?eneral a>propria- tion bills are not legislation in the true sense of the :vord. Appropriation bills are simply the set:.ing apart of public funds. Under our Ccnbtltution this must be done in the form of a bill. Section 6 of Article VIII.provides, “MO money shall be drazn from the Treasury,’ but.in pursuance of specific.appropriation made by law. . . Section 2 of Article III provides, “Aro low shall be passed, except by bill. 4 ‘Thus,’ the act of the Legislature in s.et- ting aside public funds is call d a bill, but it is not legislation in the usual sense of the word. 8 Scone of axamin8t ion The examlnati.on of the general appropriation bill submitted to us was undertaken under the followlnq limitations: Hon. ~~illian 9. Fly Hon. Max C. Smith, pa :e 4 W-96) (1) The examination has been limited to the Legislative 3udC;et board draft as it was suomitted tc us with your letter and as it was originally introduced in eL,ch House. IYe have not examined the bill as lt came out of committee. (2) ute have not undertaken to examine each item of appropria- tion but have devoted our attention to the speclflo matters directed to ua and called to our attention. (3) Vie have not examined eaoh item of appropriation to doter- mine that it hasbeen authoriaed by rxiating general legisla- tion. This la neoesrary to the vtifdity of any appropriation. (4) aa have not examined tha oorrrctneaa of Comptroller’s Account numborr inoluded In the bill. (5) Some provisions rsam to lraatata axistlnq cfnstltuticnal provlaions or general law. If thoae*provirfcna or laws are correctly atatsd in the aprropr~atlona related to them, they are valid; but they cannot amend, modify, conflict with cr repeal any such provisicna or lawa; (6) Becauar of the limita of our examination we express no opinlon on the corticns of the apcropriation bill net expressly discussed here. Form and Arrangement There are no constitutional or statutory requirements as to form and arranement of the provisions of a general appropriation bill. The only applicable rule as to form and ax-angement is the general one requirin; clearness in the expressicn cf the le$slntive intent. CaDClon The caption aa set out on page I-l la a homplete and adequate one. It covers and includes all,matters which ca:i be constitutionally included in such an appropriation bill. There are matter in the bill not included In the paption, but thsro ahould not be in an’ appropriation bill, ao changing the caption would acccmpllsh nothing. General and S~eclal Provlrlona 1. On page I-7, Section 6 at Article I of the bill deaLing with over-obligations by judicial a&enciea is invalid in that It is in the nature of general legialatlon and not germane to a general apnropriatlon bll’l. The Section does not borically deal with the appropriation of money nor the oonditicna or limits of .the appco- priatian. Hon. ktiilllam s. E'ly Hon. Max C. Smith, pa :e 5 (uvif-96) 2. On pa;e 11-21, after providing for the total amount of appropriations for the Commission on Alcoholism, there is a provision attempting to authorize the transfer of certain land from the tioard for Texas State hospitals and "pecial "chools to the Texas Corn-isslcn on Alcoholism. This provision is invalid as a part of a general apL,roprlatlon of money or an incidental part of the appropriation of money. 3. On pu;e 11-32. in the second paro;raph of Subsection d of Section 2 of Article II of the bill, there is a provision that certain salary rates must have the written approval of the Governor "with the advice of the Legislative Budget Board." If construed as a part of or a ccndltlon of ap:~roval, this wtuld te unconstltu- tlcnal as it is an attempt to best an executive pow@r in a jolng committee of the leglslatlve brance in violation of Sectlcn 1 of Article II of the Texas Constitution. Attorney General's Oplnlcn v-1254 (1951). TMs statement aprlles to the use of the same provision or hrase as follows: pa e II-32 in Section 4, Article II; pa-,e II-3 E , Subsectlcn b of Set &ion 12, Article II; page III-20 at the top cf the pave; pate 111-82 in the last paragraph under the approprlatlcn provisions for t:-e Texas Prlscn system. 4. On pages II-32 and 33, Sectlcn 7 of Article II of the bill dealing with admlsslcn and der~crtaticn of non-residents is invalid as a subject of zenera legislat'cn and not an aoproprlatlcn cf rub- llc funds nor necessarily ccnnected with nor incidental to such appropriations. These prcvlsicns in Sectlcn 7 cannot amend, modify or repeal existing general 1aN dealing with this subject, nor can it enact general leglslaticn on the subject. See Articles 3194, 3193g, 3194, 3195 and other articles in Title 51, "ernon's Texas Civil Statutes. 5. On pase II-&, Section 11 of Article II of the bill author- izing the sale of surplus properties is invalid for the purpose of grant-ing any authority to the boards to sell any surplus property or equipment. Such authorization 1s a matter of general legisla- tion; it is not properly a subject in a general apprcprlat?on bill. 6. On paze III-57 of the bill, after the total figure shown for the board of Insurance Gommlssioners, there are several paragraphs dealing with the quallficaticns for certain employees. The first, second, third, and sixth paragraphs on that page are invalid because those paragraphs decl with the quallficatlons of employees. This is a matter for ,Teneral legislation. Hon. ~~llliwm S. Fly Hon. Max C. Smith, pa:;e 7. On page III-TO, there are appropriations for the Doard of Naturcpathic Examiners. Your attention is called to the fact that the IJaturcpsthic Acy, which ,urould 'be the basic law supporting such appropriations, has been held unconstitutional by the court of Civil Appeals (Austin) in the case of iJill "ilson, et al, v. State Yoard of Naeuropathic ExamYne~rs, et al., 296 S ..Y " IZd 941, pending en applicat;cn for writ of error), and in Attorney keral's Opinion s-60. If the Court of ~1~11 Appeals’ judgment is not reversed, such appropriations would be invalid as not being authorized by exlstin; constitutional le$slation. 8. On ps,;e III-lll'ln the third paragraph under Section 4 of Article III of the bill, there is a prcvislon attempting to fix the price for furnishing photostatic copies for private use by a department or agency. This provision if invalid as bein= a subject for general leglslatlcn. The rates charged by the Secretary of State are fixed by general law. It is possible under exlst!~n= leTlsl:ticn that the departments cculd fix the costs under their general authority, but it cannot be done in a general apcrccrlatirn bill. 9. On ps :e IV-l, Section 2 cf Article IV of the bill desling with the e3l;lblllty of junior colleges fcr &prropr;atirn seems to be a restatement of Articles 2815j-2, Verncn's Texas Civil stat<]- tes. To the extent that it restates that law it is a ccnvznient reference to that l,ar, but it cannot amend, modify cr repeal any such provis'cns cfthe general law. 10. On pqe v-8, the secon.: pnrqraoh after the aprropraticn for the administrative and general cffices cf the Texas A;ricuIture S: Liechanical Cclle;e L'ystem attempting tc aut:?ori-e certain cnvest- ments of the special mineral fund is invalid as being a subject cf general legislatlcn and not properly a part of a Ceneral apnrcpria- tlt,n bill. 11. On page V-20, the last parnjraph cf the scctlcn iealin;: with Sam Iiouston State Teachers bolle:e purports to authorize contracting &f.th the Prison bystem for electric power. '&is provislcn is invalid as not bein: a ;iroper sublect for a ;encral appropriation bill. It does more than direct the o;:::ro;:riz.tlrn cf money and limit and control its expenditure. Further, it is our opinion that is is in ccnflict with Article kl3(32), Verncn's Texas "1v11 Statutes, 'which Luthorlzes contractin;: .ctween two such agencies. . ‘. Yen. ~~illitnn S. Fly Hon. Max C. Smith, page 7 (~~-96) 12. Secticns 30 throqh I+1 of Article VI of the bill appearing on pages VI-8 through VI-11 deal ,qenerally 'with the subject of travel expenses of State officials and employees. These provislcns are valid tc the extent that they are pursuant to Article 6&3, Vernon's Texas Civil dtetutes, wh!ch provides that travelin: and other necessary expenses shall be fixed end apsro- priated by the Legislature in the general apnrourlatlon bills. nowever, as noted in the authorities cited in this ooinion, these provisicns cannot enact, amend, modify nor repeal any general law on this subject cf travel expenses of State officials end employees. General Comments We hope that it is clearly understood that the purpose of a general appropriation 5111 is to appropriate money from the State Treasury for authorized State purposes. It is not the purpose of such a bill to enact zenera legislation and any provisicn or "rider" other than E mere appropriation must pertain or be related or be Incidental to the purpose or use of tine funds appropriated. Even then it is sometimes difficult to dotemine whether a provisicn or rider is properly related to cr incidental to the use cf the fu;:?s appropriated. At several places in the bill the words "assign and transfer" were used with regard to funds. lrhen these words can be construed to mean e appropriate" or ear used for,' then such prcvisicns a-e valid as so ccnstrued. On the ether hand, the transfer and assignement cf funds are not properly a part of apcropriaticn bills but ere separate subjects unless they are directly connected with or incidental tc an appropriation item. At several places in the bill the expression "hereby authorized" was used. The granting of authority is generally not a proper subject for a general sprropriation bill but is a melter frr gene.-al legislation where the safeguards which go with zenera legislaticn was available. In some cases it has been possible to construe this expression in another manner and thus mate it a valid provision. In other instances the grant of the authority was considered superflous as being e restatement of existing authority or authority inherently vested in the aplropriation bill es such a bill cannot be the source of authority for the use of the appropriation in the bill. Hon. ur'illiam S- Fly Hon. Max C. Smith, page A brw-96) Very truly yours, #ILL WILSON Attorney General of Texas By Lawrence Jones Assistant LJ:lm/PAM APi'ROVED: OPINIOX COUk!ITTEE: H. Grady Chandler, Chairman J. C. Davis S. V. Geppert C. K Richards Jo'n Reeves FOOTNOTES: 1). In construing the general rule and the limited exception con- tained in Secticn 35 of Article III of our "onstituticn, such Section should be examined and construed in connectirn ;vith Section 14 of Article IV of our Constitution. The aprliczble parts of that Section are as follows: "Every bill which shall have passed both Houses of the Legislature shall be presented to the ;cvernor fcr his approval. If he approves he shall sign it; but if he disapproves it, he shall return it, with his objec- tions, to the House in flhlch it originated, which House shall enter the c,bjecticns at large upon its Jcurnal and proceed to reconsider it. . .(Provisicns fcr overriding a veto, failing to return a bill end objection after adjournment). If any bill presented to the Governor contains several items of appropriation, he may object to one or more of such items aiid approve the ether porticns of bill. In such case, he shall ap:end to the bill at the time of signing it a statement cf the items tc :r!iich he objecta, and no item so objected to shall take effect. If the Legislature be in sesslcn, he shall transmit tc the House in which the bill originated a copy of such state- , Hon.William 3. Fly Hon. Max C. Smith, raze 9 (WV-96) ment and the items objected to shall be secarately considered. . .(Similar provisions for cverriding a veto nnd objections after adjcurnment).a It seems evident that it is the ini,entic,n of the bonstituticn that all bills passed by the Legislature shall be subject to the examinntion and approval of the "overnor subject tc the provision for overriding his disapproval. The bonstituticn established n rule that each bill shall contain one subject. It makes a limited exception to that rule to make it clear that an appropriation bill might contain a number cf aprro- priaticns and accounts. The Constitution then mnde prcvisl.cn to cover the review of this limited exception by providin; that the Governor can review the opropriation bills, item 5; item. These provisicns are related, contained in the same document, and must be construed toscthcr. It would follow that such "items" as may be apzroved or dis- approved by the kvtrnor are such "subjects" as mny be included in an appropriation bill. It would alsc follow that any matter which would not be subject to the vetc of the Governor as 6n "item" in a general aporoprietion bill is such E matter as is not croperly contained as s "subject" in s l;enerol Spiro- priation bill as provided fcr in Section 35 of Article III of our Constitution. Thus the "subjects end accounts" which may be ac?rroved or disapproved under Secticn 14 of Article IV of our Lonstituticn. 2).There are other constitutional provisions relating to the power of the Legislature tc ap:ropriate State money and limita- tions on those Eowers. 'Yhosc provis'cns are not directly re- lated to the cuestlcn here as tc what can constituticnnlly be included in a general np;ropriLtion bill. Some cf those other ccnstituticns.1 provisic,ns ts tc the basic :>orwer and its limitntlcns are is fellows: Section 6 of Article VIII Section 3 of Article VII Section 7 of -Article I Secticn 9a of Article III Section !A of Article XVI Sectlcn 39 of Article XVI Section j'i,of Article XVI, all of the Constitution of the State of ,i'exas 3).The purpose of the limited exception tc the general rule of Section 35 of Article III of: cur Constituticn was to Hon. William 9. Fly Hon. MELXC. amith, page 10 ~~-96) make certain that anrropriations to more than one department in the same bill would not be prohibited. In all other respects general appropriation bills .are subject to the same prohibition as all other bills against containing more than one subject. Moore v. sheppard, supra; Attorney General’s Gpinion No. v-1254. 4). Riders providing for accounting procedures in connection with the funds appropriated, limiting the use of contingent expense apcropriat icns, setting the rates for travel expense to be paid from the funds to State employees, specifying the time of payment of salaries appropriated and prohibiting the use of appropriated funds for the peyment of salaries to “Any employee who uses alcoholic activities while on nctive duty” or who engazes in certain political activities are v&lid in a general appropriation bill because they merely detail, limits, or restrict the use of the funds apcropriated or other- wise insure that the money ~111 be used for the purposes intended. They do not constitute additional subjects. of general legis- lation in violation of Section 35 of Article III of the Texas Constitution. Attorney 5eneral’s Opinion Ro. V-1254, page 10. 5). Section 35 of Article III of our Gonstitution does not give any authority to pass new laws or repeal old ones through the medium of a general ap,proprlstion bill. Ccnley v. Daughters of the Reoublic,,lSl $.W. 877, 863. 6). Attorney General’s Opinion No. 2965 (193.5’) says that we should be governed by the ordinarily accepted meaning of “appropriation bill” and quotes as accepted definitions the following: “A setting apart from the public revenue of a certain sum of money for a specific object in such a manner that the executive cfficers of the government are authorized to use that money and no more for that object and for no other. C. J. ~01 4. Page 1460.” 7). General legislation may contain an aprropriation which is merely incidental to and necessary to carry out the subject and purpose of the general law. Attorney General’s Opinion NO. 2965. Hon.