The Attorney General of Texas
MARK WHITE
Attorney General
Honorable Bob Bullock opinion No. w-498
Supreme Court Building Comptroller of Public Accounts
P. 0. Box 12546
Austin, TX. 76711. 2546
L.B.J. State Office Building I&: Effect of appropriations
5121475~2501 Austin, Texas 78774 act rider limiting payment of
Telex 9101674-1367 plaintiff's attorney fees in
Teleccxier 512/475.0266 suits against the Department
of Corrections
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 Dear Mr. Bullock:
2141742-6944
You have requested our opinion regarding the effect of an
appropriations act rider limiting payment of plaintiff's attorney fees
4624 Alberta Ave., Suite 160
El Paso. TX. 79905-2793
in suits against the Department of Corrections. House Bill No. 9,
9151533.3464 enacted in the second called session of the Sixty-seventh Legislature,
Acts 1981, 67th Leg., 2d C.S., ch. 2, at 8, provides appropriations
for various penal, adult correctional and criminal justice purposes.
1220 Dallas Ave., Suite 202
The statute provides, in pertinent part:
Houston. TX. 77002.6966
7131650-0666
AN ACT
606 Broadway, Suite 312 relating to appropriations for the support of
Lubbock, TX. 79401-3479
various departments of state government for penal,
6061747-5238
adult correctional, and criminal justice purposes
and for the conduct of elections and to
4309 N. Tenth, Suite B appropriations for certain legal fees and court
McAllen, TX. 76501-1665 cost and expenses.
5121662-4547
BE IT ENACTED BY THE LEGISLATURE OF THE STATE
200 Main Plaza, Suite 400 OF TEXAS:
San Antonio, TX. 76205-2797
5121225~4191 SECTION 1. In addition to sums previously
appropriated, the following sums are appropriated
An Equal Opportunity/ from the general revenue fund to the Texas
Affirmative Action Employer Department of Corrections for the period ending
August 31, 1983:
1. a. Speedup of current projects, adapt
permanent buildings for inmate housing,
and cunstruction of additional
units/beds $39,710,000
p. 1784
Honorable Bob Bullock - Page 2 0.w498)
b. Three employee dorms 2.490.000
2. Security and staff excluding fringe
benefits normally paid from other funds
12.407.445
3. Transportation of inmates from jails
677,146
4. Utilities, operating, and equipment costs
for units on line prior to February,
1983 2,900,000
Total $5a,ia4,591
Less
Current available funds 7,095,841
Item j -- appropriations -- Site acquisition,
Architectural Development and Construction
TOTAL $51,088,750
It is the legislature's intent that none of the
funds appropriated by Item 1 above shall be used
to begin projects in such a way as would
necessitate a request for an emergency
appropriation from the 68th Legislature for the
purpose of completing said projects.
. . ..
SECTION 5. No state funds shall be expended in
excess of $10,000 for plaintiff's attorney's or
attorneys' fees, court costs, or other plaintiff's
expenses in any one suit brought against the Texas
Department of Corrections or any employee thereof
unless the expenditure of said funds is
specifically authorized by an appropriations act
of the legislature which specifically identifies
the plaintiff's attorney or attorneys and the suit
or suits brought against the State of Texas or any
board or agency thereof.
You first ask whether section 5 of House Bill No. 9 constitutes
an invalid attempt to amend general law by an appropriations act
rider.
p. 1785
Honorable Bob Bullock - Page 3 (Mw-498)
Article III, section 35 of the Texas Constitution has long been
construed to prohibit the enactment of general legislation within an
appropriations act. See Moore V. Sheppard, 192 S.W.2d 559, 561 (Tex.
1946); Attorney General Opinion NW-389 (1981). A rider to an
appropriations bill is valid, however, if its only effect is to
"detail, limit or restrict the use of the funds therein appropriated."
Attorney General Opinions V-1253; V-1254 (1951). See also, Attorney
General Opinions MW-51 (1979); M-1199 (1972). In our opinion, it is
clear that section 5 merely imposes a limitation on the expenditure of
appropriated funds.
In Attorney General Opinion V-1253 (1951). the Attorney General
held that a rider providing that "no motor-propelled passenger vehicle
may be purchased with any of the funds appropriated in this article"
was "a mere limitation and restriction upon the use of the money
appropriated by House Bill No. 426." Likewise, section 5 of House
Bill 9 merely places a limit of $10,000 on certain kinds of
expenditures. So long as that is its only effect, it is not violative
of article III, section 35.
You also ask whether section 5 applies only to the appropriations
made in House Bill No. 9 or whether it also imposes its restriction on
the general appropriations act previously enacted by the Sixty-seventh
Legislature, House Bill No. 656, Acts 1981, 67th Leg. ch. 875, at
3333. The opinions which have construed article III, section 35 have
reneatedlv sanctioned riders which detail. limit or restrict funds
"therein appropriated." (Emphasis added). Attorney General Opinions
V-1253; V-1254 (1951). See Conley v. Daughters of the Republic, 156
S.W. 197 (Tex. 1913). House Bill No. 9 was enacted in a called
session of the legislature. It does not purport to amend the general
appropriations bill enacted in the regular session, nor does it make
any reference thereto, except to state, "in addition to sums
previously appropriated." It constitutes legislation entirely
separate and apart from the earlier enactment. Since, in our opinion,
a rider may restrict the expenditure of only those funds appropriated
by the legislation containing the rider, we conclude that section 5 is
not applicable to House Bill No. 656, enacted in the regular session
of the Sixty-seventh Legislature.
You have not inquired about, and we need not address any
potential conflict between section 5 and federal legislation. But see
42 U.S.C. §1988.
SUMMARY
Section 5 of House Bill No. 9, Acts 1981,
Sixty-seventh Legislature, 2d C.S., chapter 2, at
8, is not an invalid attempt to amend general law
p. 1786
Honorable Bob Bullock - Page 4 mw-498)
by an appropriations act rider. It applies only
to those appropriations made in House Bill No. 9.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTRE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Richard Meyer
Jim Moellinger
Bruce Youngblood
p. 1787