Case Information

*1 The Attorney General of Texas August 31, 1979 MARK WHITE

AttomeyGemeal

FIonomble Wi@am P. Clemen& Jr. OpInionNo. 24w-51 Gova’nuroftheState(dTexas

state captto1 Rer Authority of the Governor to veto certain mlons of the AustSn,Texas 78711 General ApprcphtIcns Act Honorable Bill Rearal

Chai?U&Wl

Committee m &woprhtiom

House of Representativea

hutin, Texas 76769

lionomble Homer A. Foerster

RxecuHveMreota

~StdeBoarddCUltWl

LBJ State Offioe Butlding

hwtin,Texsa 767U

Gentlemar:

~anybillpresaateLttotheGov~~~~recraal itecarofap~ionhcmayobfcct-tooncormorc of such items, and eppkve the other poetica of the bill. InsuchcaseherhalleippendtotkbiU,~ttbe time of signin& a statement of the itema to which he~f2ctq and no item so djected to shall teke . . .

Thus, the Goveax& authority to veto podons of the appropriations bill extend only to “items of approprlation.n In determining whether a P. 156

Honorable William P. Clemks, Jr. (Mw-51) Honorable Bill Presnal - PageTwo Honorable Homer A. Foerster

portion of the eppropriatiaw bill constituted en item of appropriation end was thus subject ‘to Veto the Supreme Court recently state&

It can be add then that the term Item of rpproprhticn’ cantempletes the setting aside or dedicating of funds for a specified purpose This ip to be distinguIshed from language which qualifies Q directs the tne of w&ted Q which h merely incidental to en mtiab. laqwge the letter sort is cleerly not subject to veta

. . . . U the lmguege & intended to set e&e fuM3 e rpecifkd pur pape, it Lp sn Stem l pprcpdation’ end is therefore aubjeet to veto by the Governor. Otberwbe, the Governor must veto the entire bill ‘or let the objectionable part stand, . . .

Jesen Associates, Ik. v. Bullock, 531 S.W.Zd 593,599 (Tex. 1975). 8 bill in whokisthet

The ally edditfalel *uthoruy to lBappd@ given to object to M item or Stem8 where a,bill contains several items, of eppropriatia It follows ccncl@vely thet where * veto ~power is attempted to be exercised to objeM to ,a paragnph or ~~of~btllothathanuritcmor,ittms,ortotanguagt qualllOtneM~t~adf~.ths,methodcdits~he constltt@mel l uthc+ity vested exceeda * in him, and his abjection to such paregmph, or portion ,of a bill, or language qualifyin& an approprfatiar, ar directing the methokof Its use, becomes noneffective.

Fulmore v. Len+ NO saw. 405, u2 clb. l9lll. see ekw Attic Generel opinsons 16499 ?l972X Y-1196 UQSI).

Representative Presnel questions seven specific vetoes. The first ,portion of thc.bill which is the subject of a questiartd veto ~videsz

The Bowl Regents of The University of Texas System is hereby authorized to wd such ‘amount of its PamaneM University Fund bond proceeds and/or other bond proceeds end such ernount,of its other available moneys us may be necessary to fund, in whole or in pert, alterations and additions to the Sun Bowl p* 157 *3 Honorable William P. Clements, Jr. - Ps6eThree

Honorable Bill Presnal (JJW-51)

Honorable Homer A. Foerster

Stadium which k located on tha campus of The Univ&ity of Texas at El Paso.

In all relevant respects the lan6uage of this rider k identical to the rider before the Supreme Court in Jensen. See P&c. Cede 9 6LO58. Accordingly, we believe it k beyond question that the-shad no legal authority to veto this rider, and thus the purported veto MS no effect

Governor Clements asks if the rider violates article VI& section 6 of the canstituUon which requires that epproprhtiats be specific. Since the Jemen court con&&d that thk langnsge did not constitute an independent appropriaek not necessary to measure it agahwt the requirements of article VIII, section 6. See also Jemen, supra, at 599-600, II. 8 for a description of types of funds which might be covered under the language of the rider. Discussion specific appropriations are found in National Biscuit Co. v. State, 135 SW.2d 687,693 &x. 1940) tit k not necemary that an eppropriaticn dasi9nste a certain sum or even a. maximum sum to be specific); AGcins v. State Wiiway Denartment, 201 ,S.W. ‘226 0’~ Civ. App. - Austin 1918, no m .approptiation of all funds coming from a named source k specific); Attorney General Opinion V-l267;(l951) (appropriation of en uncertain amount of money in a special fund for a named purpcee k specific); Attorney General Opinion V-887 (1949) (appropriation all lkenae fees received under a particular act k specific).

The Governor also suggests that any improvement ‘of the ~eounty-ownad Sun Bowl with state funck ~would violate article iU, section 51. of the Texas ‘Cumtitution which inter elia that the legklature ~hss no power to authorize a grant public provi& moneys toZiiiiZ& corporatim The details of any improvements are not before tu so we canno% say that all cane&able pr6jects wauld he permissible; however, the University of~TexasatRlPasokthelong-termle&eeofthestadiumanditmayba~y

anticipated that it will receive substantial benefits from alterations and edditkms to the facility. Acts 1967, 57th Leg., ch. ‘13; at 23. If the University receives adequate benefits, it k not prevented from making apenditures which mayincidentoRy benefit ths County. Attorney General Gplnion H+3 0974).

The next provision in question is:

(47) The Texas Department of Human Rewnmxs kh=eby authorized and directed to construct a state office building, in cooperatfcn with the State Board of Control, cons&kg of NTR 530,006 gross square feet (400,000 net square feet). No General Revenue, Children’s Assistance, 01‘ Medical Assiitance may be tned this purpose.

It k the intent of the Legislature that the building house the central administrative offices both the Texas Department of P- 158

Honorable WilIiam P. Clements, Jr. (NW-51)

Honorable Bill Presnal - PagePour

Honorable Homer, Ai Foerster

Ruman Resources and the Texas Youth CounciL Further, it k the intent of the Lcgttlature that the buIldin. be co&meted on State land currently owned by the Texas Department of Mental Health end Mentd Reterdatkn, The Board of Mentsl Wealth and Mental Retardatico k hereby authorized end directed to traM!er to the State Boerd of Control record title to a certafn trhnguwhaped tract land 39 acres, mare or lem, in ths north part of the City of Austin, tam&d on the west by West Guadalupe Street and,North Lamnr Boulevard, on the north by Slst Stree& on the eastby ~Guadalupe Street and having the southern Up of the tract at the intersection of Guadalupe and West Guadalupe Streets, together with all records held .b it concerning this tract

These two paragraphs do not constitute an “item” of wropriation under the test esteblished in Jemen. They da not set a&e or dedicate funds Instead, tMms directs and qtixthe tue of fumkappropriated elsewhere. See Jesren, 606 (Supreme Court found fact that funds were appropriated elsewhere was % ncant in determining that the provkion was not an item .of appropriation and thus was not subject to veto). It prohibits the use of certain categories of funds for &nmtruction of this buiiding, and it ef!ecUvely directs the tue of funds spproprieted ittother portions of the Act. Accordingly, the Governor was without euthority to veto thisprovision.

The Governor asks a series of questian? rsgardinS eemed federal f&s, which it .k entidpated will be the source of revenue the construcUon~of the build@ listed in the rider. Berned federal funds are generated by reportingstate apendftures for servSces to pemons eligible certain federal prcgrems gnd by olaimirg federal matching for those servkes. The earned federal funds are .arbject to appropriation by the legkigture and have in fact been appropriated. Se ert. n, rider (6) et R-52, art. v, ‘0 19. The po$kn the eppropri&ious act reflect the method of fh’mnchg the Department of 9 Human Resources apprcpriation indicates that $60,650,000 has been appropriated to the department for the next two year% from earned federal funds Thk gmount reflects only the portion of the department’s itemized eppropriatiOn coming ,from earned federal funds. It does not include any funds for the construotion the buildirgt however, ell earned federal funds are appropriated by the sixth rid& to the dspartmentk appropriation. Thus, ths amount earned federal funds the department may spend is not limited to the 660,650,OOO shown in the method of financfrg descriptlen. Addit(onel Sn excess of the ‘$60,650,000 appropriation may be spent for the constrgtion of a buildii within the limits set out, in the rider which the Governor sought to veto.

The third provision in question k

The State Board of Control shall establish a maximum and a minimum monthly charge for state employee parking of $16 and $6 respectively for facilities within its jurkdictton. The Board k 159

p.

Honorable William P. Clements, Jr. - PageFive (Mu-61)

Honorable Bill Presnal .

Honorable Home? A. herder

euthorized to charge varying rates within the above limitations baaed upon ths type and loeatiti of parking space made available +cepted by a date employ*

Thk provision does not set asIde or dedicate any putposer so it k not an item of appropriatiar and k not sub&at to veta

Tha Poard of Control has ,ashed if it k prohibited from establkhing ‘a minimum par&in6 rate which k bw,u thm the six dollam per month set out In the ?ider. In essence theBoardkaMngUtheriderkvali&

lt k well established in T& that

[iJn edditian to appropriating money end ttipulating the amount, manner, and purpose of the various items of expenditure, a general eppropriatkn bhl may contain provision Q riders which detail, limit, or restrict the use the umk or otherwke insure that the “p

money is spent for the required nativity for which~ it k therein appropriated, if the provisions or riders Sn peeesar provided they do not conflict with general legkl8uan.

Attbrn+ Genersl Opinion V-l234 (Nil).

This ride neither eppropriates nor deteils, limits or testrjcts the use of f&s. It k instead a general directive to the State Board of Control to we certain affirmative 8cU0n, and it may not validly be included in tha General~ropriations Act Accordi@y, the Board of Control las tha authority to set parking rateam@r the authority gmnted it hy sectian 30 article 678t, V.T.C.S., and it k not limited to the minimum and ;r~itguxml)mtes et out in the eppropriations act. See also 37-e By 1673, 68th Leg.,

. .

The next two provkions the Act rdse identkel issues They ares

Funds epproprieted to The University of Texas et &II Antonio for the fiscal yrxy ending A- 3l,l979 are hereby reappropriated for the bknnium ending August 3Ll98L

. . . .

See. 15. Any unexpended balances as August Sl, 198.0, not otherwke restricted and ,remaining in the various item&z of appropriatiau to the Youth Council and tk under its institutions jurkdiction are apptiopriated for’ the fiscal year beginning p. 160

Honorable William P. Clemenls, Jr.

Honorable Bill Presnal - PageSIx (MW-51)

Honorable Homer A. Foerster

September 1,1980, construction projects and major repairs. The funds will be restricted to ths followingr

YOUTH COUNCI& RUILDING AND REPAIR PROORAM L Repair sewer lift Station at West Texas ChIldrenb Home NTR, $33,000.

2. Repair cr repkcement of institution&l streets, perhing ktS, curbs and gutters, tjTE 6225,000.

These two provisions appropriate remaining unspent from the prior biennhrm’r appropriation to the two agencies. It has been suggested that. the kngusge merely directs ths ‘we of appropriated elsewhere, in this case in the prior epproprintions sect The 19784979 appropriations, however, expire on Atqust Sl, 1979. Acts 1977, 65th Leg., ch 872, et 2699; z Tex. Const. art. Vlll, S 6. Ths 1979-1980 epprupriationa art rot available until 8eptegbe.r l, 1979. The two provisions set aside or dedicate funds for a specific use. they are items appropriation and are subject to veto by the Covernor. AamdingIy, The next provision you have questioned Is in the portion of the Act relating to the Departmenl of Highways and Public Transportatiot~ R providesr

in order to insure the maintensnee, preservation and cuutructkn a system of highways roadways ed streets within the stete, there shall be $ progrem dfsigmd to eccomplish improvements in traffic flow tid design in cooperation with the polttical sub- dMskm of the state eind in .conmmce and furtherance of federal wway polky to repante cco@sted, hasimbw end dangerow gmde intemeeticns of highways and ‘railways with the ultimate .objective of eccompllshing a sepemUan of ‘the two gro4md transportation ems ‘and there is. hereby ~appropckted Pive MUlion Dollars $5,000,000) per year from the General Revenue F

Fund to accomplish theqe objectives Provided further that general revenues the state appropriated for the fmpkmentation of this ridershankmimbursedtathcStatcRraangrhould.f~ralf~

,beeome evaikhle these pue The Sate Dep&ment of Highways and Public Trensportation shall have’ such power and authority .to eccompIish said objective ss necemary and shah .,administer funds from the general revenue of the state as appropriated herein, together with funds provided from .fe&ml sources; furthr, the Department shall set up administrative rules, regulations, orders and stemlards to administer the outlay of such funds, and shall determine a priority for orderly implementntion of the separations to be undertaken.

The legislature spproprhted a large lump sum for contract construction. See item 3(d), p 111-85. That sum includes SS million per year from non-general revenue runds for

P. -161

Honorable Wiliiam P. Ciements, Jr. (M+511 Honcmble Sill Presnal - Page Seven

Honcmble Homer A. Poerster grade separations. The paragraph whkh was vetoed and is reproduced above provides an additional $5 million per yeer fcr this purpose fmm the general revenue fm& It Indicates that a specific amaunt is apprcpriated for 4 qxaifk purpom The language does not refer ta funds appropriated aisewhere in the Act Accordingly, the sentence apprcpriating $5 milk0 per year from the general revenue fund was aubkct to veto. The approprktion from nongeneral revenue funds is, of comae, not affacted by the veto.

The final veto in question involved college building Tha language whkh the Governor sought to veto providesr

sech CO&EQE EUILDMQ FUNDS. ’ There also are appropriated far use the allocations from the building funds created by Article VU, Sections l7 and 18, of the State Constitution, to the respective institutis and the Ourposes specified therein.

All of the funds~ allocated by article VII, section 18 are appropriated elsewhere in the Act, see General Appropriations Act, pp. III-28 -El-29, and thus are not subject to veto.

Tim final qucstian,‘then, is whether the article VII, section 17 funds are subject to veto. While the language of artkle lV, section s’of ‘the appropriaticns act would typically be subject to veto, the may be appropriated by the constitution itself. If so, any further appropriation would ba unnecemary and the funds would be beyond the veto authsrity.

Artkle VU, ae@on 17 of the Texas Constitution imposes an ad valorem tax and p~tides a serka formulae by whkh the funds are to&be allocated’among several state m@po+ed colleges and universities. The governing ,bo&ds of : the instituticns are Urthorized to pletQe funds allotted to each institutkn to secure bonds and notea. Article w,sectkn17goesaltoprovidez

The State Comptroller Publia Accounk shall draw ail necc~andpcparwMantruponthcstatcTreasurpkordat0

carryoutthepurposcolthbAmcndmcnt,urdthtStateReMurer

rhanpayrruranBn,igU6dOUfOrtharpcc.~fundhercbycrcated aaid putpose. Ttds Amendment ahall be aelf-enactin& ,. . . . An earlier version of this amendment was considered by the Attorney General in Attorney General Opinion V-798 U949). The Attorney General said:

There is, neceaserily involved in your request; though not definitely pzsentss& the question of whether or not these funds are subject to legislative appropriatiar as a prerequisite to expenditure by the c+ge.s. We *em it appropriate to answer that question now. The answer k in the negative. This Constitutional

p. 162

Honorable William P. Gleme&, Jr. - PageEight ~~-31)

Honorable Bill Resnal Honorable Homer A. Poerster Amendment, by its exprem terms, is self-enacting in aii of its details. It specifically lcvic~ the tax, designates the use to nMah thefundcrecrtedbythetaxic*gshallbsapglicdbytheBoardof

Regents, and dlmcts the Comptrolier to issue and the State Tmasumr ta pay warrants dnwn ~upon this special fund thus created. An appropriaticn in a ccnstitutional sense may be by legishtive act cr constitutiaul declaration. This ir the latter chss. The effect thi apliait dimctions found in this of Gonstituticnal Amendment, now a pert of ths organic law of this State, levying the tsx, creatiq a special fund from such levy, qmcifying the purposes for wtich it may be spent, and directing the manner of its dtsbumement, &early remove this special fund from the limitatiaw of Article WI, Section 6 the Constitution of tMs State, which providew 940 money shall be drawn from the treasury but in pursuance of specific appropriation made by larv; nor shall any appropriation of money be made for a longer term than two ytars’. . .

Since these are appropriated by the constitution they ere not subject to veto.

SUMMARY The Govemor validly vetoad prcyisions of ‘the General Approprhticns Act reapproprhtiq unended ,balances from the ghcedhg ‘biennium to the ,Tera+ Youth Council and ,to the University of Texas at San Antonio. He also had authority to veto an appywhticn to the Department. of Xighwqs and Public Tranqodticn ta pay grade separations.

Four attempted vetoes were outside the scope the Gova&(s authority and are void. These includaa veto of provisions ralating to the Sun Bowl stadium, parking fees charged by ,the Bosrd of Control, authaizatim, of aPanditures far a building to be -ted by the Department cf Human Bcsoums andcollege building funds

A rider directing the Board of control to impose certain parking fees ~ls invalid since it is an attempt to enact general legislation in the approprjations act

>~pbfPUK~ !dARK WHITE Attorney General of Texas P. i63

Honorable William P.Clements,Jr. - PageNine (MW-51)

Honorable Bill ptesnal Honorable Homa A. poerster

JOHN W. FAINTER, JR.

First Assistant Attorney General

TED L. HARTLEY

Executive Assiitant Attorney General

Prepared by C. Robert Heath

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

C. Robert Heath, Chairman

David B. Brooks

Susan Garrison

Paul Gavia

Rick Gilptn

Terry Goodman

WiIIiam G Reid

David H. Young

Bruce Youngblood

p. 164