Can a Texas budget rider require state agency employees to file financial disclosure statements with their own board?

Texas AG Opinion DM-0081: Appropriations-Act Rider on Financial Disclosure

Plain-English summary

The interim commissioner of the Texas Department of Human Services asked whether a rider in the state budget was valid. The rider, article V, section 79 of the 1991-92 General Appropriations Act, said that funds appropriated to agencies in Articles I through IV could not be contractually obligated unless the employees responsible for those contracts and expenditures had filled out financial disclosure statements, and unless those statements had been reviewed and approved by the agency's own board or commission, with the statements kept on file and open to public inspection.

The Attorney General had looked at an identical rider in 1985 (Opinion JM-343) and read it narrowly so it would not exceed the general financial-disclosure statute then in force, article 6252-9b, V.T.C.S., which required certain officials and employees to file financial statements with the state (filings now go to the Texas Ethics Commission). This opinion agreed with most of JM-343 but corrected one point: JM-343 had said the rider's extra requirement, filing also with the agency's own board, was "not unconstitutionally inconsistent" with the statute. The Attorney General disagreed.

The reasoning came down to what a budget rider may and may not do. A rider can detail, limit, or restrict how appropriated funds are spent, but it cannot "repeal, modify or amend an existing general law." Because article 6252-9b required only a filing with the state, and the rider tacked on an additional filing-and-approval step with each agency's own board, the rider attempted to modify a general law and was invalid to that extent. The opinion also rejected the idea that the budget-execution amendment (article XVI, section 69 of the Texas Constitution) authorized the rider: that amendment lets the Legislature require prior approval of an expenditure, while this rider required approval of an employee's financial statement, and the amendment seemed to contemplate approval by someone outside the spending agency, not the agency approving its own decisions.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Article 6252-9b, V.T.C.S., has since been repealed and recodified (Texas financial-disclosure law now lives largely in chapter 572 of the Government Code, administered by the Texas Ethics Commission), and appropriations riders change every biennium. Verify current law before relying on anything here.

Common questions

What part of the rider was invalid?
The part requiring affected employees to file a financial statement with their own agency's board or commission for approval. That added a requirement on top of the general statute (article 6252-9b), and a rider cannot modify a general law.

What part of the rider was still good?
The part that merely restated the existing statutory duty to file a financial disclosure statement with the state. To that extent the rider duplicated, rather than expanded, the law, so it stood. The opinion noted that under that reading the rider was "superfluous" as much as anything.

Why can't a budget rider add a new filing requirement?
Because a rider's job is to control how appropriated money is spent, not to write new general law. The opinion relied on the long-standing rule (citing earlier AG opinions and Moore v. Sheppard) that a rider may restrict the use of funds but may not repeal, modify, or amend an existing general law.

Didn't the budget-execution amendment allow board approval?
No. Article XVI, section 69 lets the Legislature require prior approval of an expenditure or emergency transfer of appropriated funds. The rider required approval of an employee's financial statement, not of any expenditure, so it fell outside that exception.

Background and statutory framework

The rider at issue was article V, section 79 of the General Appropriations Act, Acts 1991, 72d Leg., 1st C.S., ch. 19, at 1036. The general financial-disclosure statute it interacted with was article 6252-9b, V.T.C.S. (see § 9(a)), which at the time required filings with the secretary of state and, by 1992, with the Texas Ethics Commission. The opinion built on Attorney General Opinion JM-343 (1985), which had construed an identical earlier rider, and on Attorney General Opinion M-1199 (1972) for the rule that an appropriation bill may detail, limit, or restrict the use of appropriated funds but may not repeal, modify, or amend a general law. It cited Moore v. Sheppard, 192 S.W.2d 559 (1946), among other authorities, for the same principle. The opinion measured the rider against article XVI, section 69 of the Texas Constitution, the "budget execution amendment" adopted shortly after JM-343, and found the rider outside that provision's authorization.

Citations

Statutory and constitutional provisions:

• V.T.C.S. art. 6252-9b, including § 9(a) (financial disclosure statements)
• General Appropriations Act art. V, § 79 (Acts 1991, 72d Leg., 1st C.S., ch. 19, at 1036)
• Tex. Const. art. XVI, § 69 (budget execution amendment)

Cases:

• Moore v. Sheppard, 192 S.W.2d 559 (1946)

Prior Attorney General opinions discussed: JM-343 (1985), M-1199 (1972), JM-817 (1987), MW-51 (1979), V-1253 (1951), and Letter Advisory No. 148 (1977).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0081
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0081.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

January 30, 1992

Mr. Burton F. Raiford
Interim Commissioner
Texas Department of Human Services
P. O. Box 149030
Austin, Texas 78714-9030

Opinion No. DM-81

Re: Validity of a rider to the General Appropriations Act that requires certain employees of state agencies to submit financial statements for review and approval by the board or commission to which the employees are responsible (RQ-198)

Dear Commissioner Raiford:

You have requested our opinion regarding article V, section 79, of the current General Appropriations Act. Acts 1991, 72d Leg., 1st C.S., ch. 19, art. V, § 79, at 1036. That rider provides:

Sec. 79. FINANCIAL DISCLOSURE STATEMENTS. None of the funds appropriated to departments and agencies covered in Articles I through IV shall be contractually obligated unless those employees who are responsible for entering into such contracts and for approving such expenditures have completed financial disclosure statements and these financial statements have been reviewed and approved by the board or commission to which each employee is responsible. All financial statements shall be on file in the administrative offices of the respective department or agency, shall be submitted to the responsible board or commission for approval annually, and shall be open to public inspection.

In Attorney General Opinion JM-343 (1985), this office said that an identical rider in the 1985 General Appropriations Act, in order to be constitutionally valid, should not be construed as broader than article 6252-9b, V.T.C.S., a statute that required certain state officials and employees to file financial statements with the secretary of state.[1] (Article 6252-9b, V.T.C.S., now requires financial statements to be filed with the Texas Ethics Commission.) Attorney General Opinion JM-343 declared the following:

The guidelines to be followed in determining which employees must file financial statements and the content of those statements, therefore, are the guidelines provided by article 6252-9b. The persons who must file statements under section 86 are those listed in article 6252-9b who are also responsible for entering into agency or department contracts and for approving expenditures thereunder. To comply with both article 6252-9b and the rider in the Appropriations Act, such persons who are in departments or agencies covered by articles I-IV of the Appropriations Act should file a financial statement with the secretary of state and annually submit a financial statement to the board, commission, or appropriate administrator who will review and approve the statement under the provisions of the new rider. This filing requirement is not unconstitutionally inconsistent with article 6252-9b. V.T.C.S. art. 6252-9b, § 9(a); Attorney General Opinion M-1199 (1972). A copy of the financial statement should remain on file in the department's or agency's administrative office and be open to public inspection.

In our opinion, Attorney General Opinion JM-343 is a generally correct statement of the law. We disagree, however, with its statement that the additional "filing requirement is not unconstitutionally inconsistent with article 6252-9b." Article 6252-9b requires only the filing of a financial disclosure statement with the Texas Ethics Commission. An appropriation bill may "detail, limit, or restrict the use of funds therein appropriated or otherwise insure that the appropriated money will be spent for the purpose intended." Attorney General Opinion M-1199 (1972), at 1; see Moore v. Sheppard, 192 S.W.2d 559 (1946); Attorney General Opinions MW-51 (1979); V-1253 (1951). A rider to an appropriations bill may not, however, "repeal, modify or amend an existing general law." Attorney General Opinion M-1199. To the extent that the rider under consideration imposes an additional filing requirement on those persons covered by article 6252-9b, we believe it attempts to modify a general law, and is, therefore, invalid.

We note that shortly after the issuance of Attorney General Opinion JM-343, the electorate adopted article XVI, section 69, of the Texas Constitution, commonly known as the "budget execution amendment." That amendment reads, in its entirety:

The legislature may require, by rider in the General Appropriations Act or by separate statute, the prior approval of the expenditure or the emergency transfer of any funds appropriated to the agencies of state government.

In our opinion, the rider about which you inquire does not fall within the exception of article XVI, section 69. The rider requires a board's approval of an employee's financial statement, not the approval of any expenditure. Furthermore, the language of article XVI, section 69, of the Texas Constitution seems to require approval by some person or entity outside the particular agency that is the subject of the appropriation. It would seem to serve no purpose to require an agency's governing body to approve its own decisions about expenditures.

SUMMARY

Article V, section 79, of the current General Appropriations Act, which requires certain employees of state agencies to submit financial statements for review and approval by the board or commission to which the employees are responsible, is constitutionally invalid to the extent that it expands or is inconsistent with article 6252-9b, V.T.C.S. It is valid to the extent that it merely restates that statute. Guidelines applicable to the rider are those provided by the statute. The rider's requirement that the affected employee file with his board is constitutionally invalid.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] Attorney General Opinion JM-343 failed to note an anomaly in the rider: there is little likelihood that a statute would deem mere employees to be "responsible for entering into . . . contracts and for approving . . . expenditures." Approval of contracts and expenditures, as opposed to contract negotiation, is ordinarily a responsibility of the governing body of the agency, i.e., the board or commission itself. See Attorney General Opinion JM-817 (1987); Letter Advisory No. 148 (1977). Members of a board or commission are indeed covered by article 6252-9b. Under this construction, the rider is not so much invalid as it is superfluous.