July 19, 1974
The Honorable James D. Cole Opinion No. H- 351
House Administrator
House of Representatives Re: Validity of rider to
Austin, Texas Appropriations Act (H. B.
139, 63rd Leg.) regarding
equal employment opportunity.
Dear Representative CoTe:
Your letter on behalf of the House of Representatives Committee
on House Administration raises one of the most frequent questions of
statutory interpretation to come before the Attorney General and one
of the most troublesome.
You have asked our opinion of the constitutionality of a provision
of the Appropriations Act for fiscal 1974 and 1975 (Laws 1973, 63rd Leg.,
ch. 659, p. 1986) found as a rider to the appropriation to the office of .
the Governor at pages 1967-68:
As a limitation on the expenditure of funds
appropriated in this Act and to insure that funds
appropriated for salaries of classified positions
are spent in accordance with Legislative intent
and the laws of the State, each agency and depart-
ment of the State of Texas shall prepare and main-
tain a written plan to assure implementation of
a program of equal employment opportunity whereby
all personnel transactions are made without regard
to race, religion, national origin, or sex .(except
where sex constitutes a bona fide occupational
qualification). The plans shall contain a compre-
hensive analysis of all employees by race, sex,
p. 1633
’
The Honorable James D. Cole page 2 (H-351)
and class of position and shall include plans for
recruitment, Eelection, appointment, training,
promotion, and other personnel practices. The
plans shall also include objectives and goals,
timetables for the accomplishment and assignments
of responsibility for their completion.
The plans shall be filed with the Office of the
Governor within ninety days after the enactment
of this Bill covering the period September 1, 1973,
through August 31, 1974, and shall be updated
on an annual basis. Progress reports shall
be submitted within thirty days of September 1
and March 1 of each year.. The Office of the
Governor shall cooperate with agencies to pro-
vide technical assistance to agencies and
departments in the preparation of these plans.
Article 3, Section 35 of the Texas Constitution provides:
. . . No bill, (except general appropriation
bills, whtch may embrace the various subjects
and accounta, for and on account of which
moneys are appropriated) shall contain more
than one subject, which shall be expressed in
its title. But if any subject shall be embraced
in an act, which shall not be expressed in the
title, such act shall be void only as to so much .
thereof, as shall not be so expressed.
The courts in a few instances and Attorneys General in many have
construed this section as it applies to riders to Appropriation Acts.
Perhaps the most definitive analysis is that contained in Attorney General
Opinion V-1254 (1951) by then Attorney General Price Daniel, as follows:
p. 1634
‘_
i :
The Honorable James D. Cole page 3 (H-351)
With special regard to what incidental
provisions may be included within a general
appropriation bill, our Texas courts have not
stated a general rule. However, from state-
ments as to what may not be included and from
numerous opinions of the Attorney General, we
believe the rule may be stated generally as
follows: In addition to appropriating money
and stipulating the amount, manner, and purpose
of the various item,* of expenditure. a general
appropriation bill may contain any provisions
or riders which detail, limit, or restrict the
use of the funds or otherwise insure that the
money is spent for the required activity
for which it is therein appropriated, if the
provisions or riders are necessarily con-
nected with an incidental to the appropria-
tion and use of the funds, and provided they
do not conflict with general legislation.
(Opinion V-1254. rupra, p. 8).
As long as a general appropriation bill
includes only subjects of appropriating money
and limiting the use thereof in harmony with
general legislation, it may relate to any number
of different ‘subjects and accounts. ’ In such
instances all of the subjects are under the one
general object and purpose of appropriating funds
from the treasury. The obvious purpose of .
this limited exception was to make certain that
appropriations torrmre 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. The
result is that general legislation cannot be
p. 1635
The Honorable James D. Cole page 4 (H-3511
embodied within a general appropriation bill.
Moore v. Sheppard, supra. [192 S. W. 2d 559
(Tex. 194611.
A general appropriation bill may be defined
as a single bill which appropriates funds for two
or more departments, subjects, accounts, or
purposes. It has the one general purpose or
subject matter of appropriating money.
General legislation does more than ap-
propriate money and limit its expenditure. As
said by a former Attorney General in Opinion
No. 2965 (19351,
1, . . if the Bill does more than
set aside a sum of money, provide
the means of its distribution, and
to whom it shall be distributed,
then it is a general law . . . ’
Thus, the distinction between general
appropriation bills and general legislation
has been recognized in this State in the simple
fact that the former merely sets apart sums
of money for specific objects and uses while
the latter does more than merely appropriate
and limit the use of funds. General legislation
constitutes a separate subject and cannot be
included within a general appropriation bill.
Moore v. Sheppard, supra; Attorney General
Opinion No. 2965, supra.(Opinion V-1254, supra,
pp. 6-7).
The difficulty lies in applying these rules to a particular enactment
or rider. Opimon V-1254. supra, was a general discussion of riders. It
did not involve a particular rider. Attorney General Opinion V-1253 (1951),
p. 1636
The Honorable James D. Cole page 5 (H-351)
issued the day before Opinion V-1254, involved riders (1) prohibiting the
purchase of any passenger motor vehicle with appropriated funds and (2)
ordering that all statehowned passenger motor vehicles be sold not later
than October 1, 1951. The first provision was held to be valid as a “mere”
limitation and restriction on the use of the money. The second was held
invalid as general legislation. For other examples, we would call to your
attention Attorney General Opinion M-1199 (1972), a detailed study of riders
in the 1971 Appropriations Act as well as those cited in Opinion V-1254,
supra.
With these rules in mind, it is apparent to us that the rider in
question while, of course, laudable in its purpose does more than merely
limit or restrict the expenditure of appropriated funds. In our opinion,
it is general legislation affirmatively decreeing that all agencies and
departments of the state are to take certain action. And, as laudable
as the required action may be, we are legally bound to hold that forced
compliance will require further legislative action.
As in Opinion V-1253, supra, our reasoning, perhaps, may be
made clearer by contrasting the rider with another. The same Appropria-
tion Act, in its General Provisions, Article V, at page 2217, contains
Sec. 55 as follows:
Sec. 55. DISCRIMINATORY PRACTICES. None
of the funds appropriated in this Act shall be expended
by agencies which practice discrimination based on
race, creed, sex or national origin. The State Attorney
General shall be specifically responsible for the enforce-
ment thereof upon the request of the Governor.
Sec. 55 -is “merely” a limitation or restriction on the expenditure
of appropriated funds and is a valid rider. The rider requiring an affirmative
plan containing an analysis of employees by race, sex and class of position
and containing a plan for recruitment and other matters, is general legisla-
tion, and therefore invalid.
p. 1637
The Honorable James D. Cole page 6 (H-351)
This opinion in no way affects or lessens the effect of Subsection 55
supra. Nor does it lessen the requirement that states and their political
subdivisions abide by the federal laws prohibiting discrimination in employ-
ment, e.g. 42 U.S. C. §2000e-2, 29 C.F.R. Sec. 160 et seq., or that
they ta!-eaffi rmative action required under the federal law. 42 U. S. C.
§ 20OOe-5(g).
SUMMARY
While Sec. 55 of Article V of the Appropria-
tion Act for 1974 and 1975 mandates that no appropiated
funds be expended by agencies that practice discrimina-
tion based on race, creed, sex or national origin, the
rider to the Act requiring affirmative action plans to
provide equal employment opportunity is invalid as
general legislation. Requirements of the Federal
laws prohibiting discrimination in employment or
requiring affirmative action are unaffected by this
opinion.
+,.&RRk F. /YORK, F/irst kBai-&ant ,
&J&H
DAVID M. KENDALL, Chairman
Opinion Committee
llz
p. 1638