Can a Texas budget rider force a state agency to adopt another department's procedures?

Plain-English summary

The Texas Board on Aging asked about a single line in the state budget. The Legislature had attached "Rider 9" to the appropriation for the Texas Department on Aging. The rider said that where the department's services under Title III of the federal Older Americans Act and the Options for Independent Living program were substantially equivalent to programs run by the Department of Human Services, the aging department "shall use" the human services department's service standards, systems, billing and audit procedures, and provider bases, in order to eliminate unnecessary duplication.

The Attorney General concluded the rider was unconstitutional under Texas law, so there was no need to decide the federal question the board also raised about whether following the rider would violate the Older Americans Act. The Texas Constitution, in article III, section 35, prohibits putting general legislation into a general appropriations bill. A budget rider has a narrow job: it may detail, limit, or restrict how the appropriated money is spent, or otherwise make sure the money goes to the activity it was appropriated for. It may not impose an affirmative duty on a state agency. Rider 9 did exactly that, ordering the aging department to take specific affirmative actions by adopting another agency's procedures and provider lists. However sensible cutting duplication might be, the opinion said, that is a policy matter for general legislation, not an appropriations rider. The rider was therefore general legislation, violated article III, section 35, and was void and of no effect.

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. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Texas Department on Aging has since been reorganized into other state agencies, and appropriations acts are enacted anew each biennium, so this specific rider is long expired; the constitutional rule it applied is the durable point.

Background and statutory framework

The opinion turned on a well-settled limit on budget riders. Article III, section 35 of the Texas Constitution prohibits enacting general legislation in a general appropriations bill. Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Attorney General Opinions MW-51 (1979), V-1254, V-1253 (1951). A rider may do no more than detail, limit, or restrict the use of the appropriated funds, or otherwise ensure the money is spent for the activity for which it was appropriated. Attorney General Opinion V-1254 at 17. A rider is invalid if it tries to confer an affirmative duty on a state agency. Attorney General Opinion JM-167 (1984).

The opinion drew a close parallel to Attorney General Opinion MW-585 (1982), which had considered a rider to the appropriation for the State Board of Barber Examiners. That rider declared the Legislature's intent that the barber board and the Texas Cosmetology Commission execute an interagency contract to reduce duplication in inspections, enforcement, and examinations. The 1982 opinion held the rider invalid because it appropriated no funds and did not detail, limit, or restrict the use of funds appropriated elsewhere; instead it was a general directive to take specific affirmative action. It was therefore general legislation, violated article III, section 35, and was void.

The opinion found Rider 9 similar in all particulars. It required the Department on Aging to take specific affirmative actions, namely to use the Department of Human Services' service standards, systems, billing and audit procedures, and provider bases. General Appropriations Act, Acts 1991, 72d Leg., 1st C.S., ch. 19, art. II, § 1, at 686. And it did so for the same reason as the barber-board rider: to eliminate duplication. However laudable that goal, the opinion concluded, its implementation was not a proper subject for an appropriations rider. Rider 9 was general legislation, violated article III, section 35 of the Texas Constitution, and was void and of no effect.

Common questions

What is a budget "rider" and what can it do?
A rider is a provision attached to an appropriation in the state budget. Under this opinion, it may only detail, limit, or restrict how the appropriated money is spent, or make sure the money goes to its intended activity. It cannot impose a new affirmative duty on an agency.

Why was Rider 9 unconstitutional?
Because it ordered the Texas Department on Aging to adopt another agency's procedures and provider lists, which is an affirmative duty, not a limit on spending. That made it general legislation, and article III, section 35 of the Texas Constitution bars general legislation in an appropriations bill.

Did the Attorney General decide the federal Older Americans Act question?
No. The board had also asked whether complying with the rider would violate the federal Older Americans Act. The opinion said that is ultimately a federal question and, in any event, it did not need to reach it because the rider was already invalid under Texas law.

Does this mean the Legislature could never require the agencies to coordinate?
The opinion did not say coordination was improper, only that it could not be commanded through an appropriations rider. Imposing that kind of affirmative duty is the business of general legislation enacted in the ordinary way, not a budget rider.

Citations

• Tex. Const. art. III, § 35
• General Appropriations Act, Acts 1991, 72d Leg., 1st C.S., ch. 19, art. II, § 1, at 686
• General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art. I, at 3376
• Human Resources Code §§ 101.041-101.049 (Options for Independent Living)
• 42 U.S.C. §§ 3001-3057n (Older Americans Act)
• Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946)
• Tex. Att'y Gen. Ops. V-1253 (1951), V-1254 (1951), MW-51 (1979), MW-585 (1982), JM-167 (1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0116
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0116.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

May 11, 1992

Mr. Dan Roberts
Chairman
Texas Board on Aging
P. O. Box 12786
Austin, Texas 78711

Opinion No. DM-116

Re: Validity of a rider to the current appropriation to the Texas Department on Aging which requires the department, under certain circumstances, to use the service standards, systems, billing, audit procedures, and provider bases used by the Department of Human Services (RQ-288)

Dear Mr. Roberts:

You have requested our opinion regarding the validity of a rider to the current appropriation to the Texas Department on Aging (hereafter "TDoA"). That provision, numbered "Rider 9," states as follows:

Where services under Title III [of the Older Americans Act] and Options for Independent Living are substantially equivalent to those provided by the Texas Department of Human Services Community Care programs, the [TDoA] shall use the service standards, systems, billing and audit procedures, and provider bases used by the Department of Human Services to eliminate unnecessary duplication.

General Appropriations Act, Acts 1991, 72d Leg., ch. 19, art. II, § 1, at 686; see Hum. Res. Code §§ 101.041-101.049 (Options for Independent Living).

You first ask whether TDoA's compliance with this rider would violate the federal Older Americans Act and the regulations applicable thereto. See 42 U.S.C. §§ 3001-3057n. Determination of this matter is ultimately a federal question, and no pronouncement by this office would be conclusive. It is not, in any event, necessary to reach this issue, since we conclude that rider 9 is unconstitutional under Texas law.

Article III, section 35 of the Texas Constitution prohibits the enactment of general legislation in a general appropriations bill. See Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Attorney General Opinions MW-51 (1979); V-1254, V-1253 (1951). A rider to a general appropriations bill may do no more than "detail, limit, or restrict the use of the [appropriated] funds or otherwise insure that the money is spent for the required activity for which it is therein appropriated." Attorney General Opinion V-1254 at 17 (citing summary). A rider is invalid if it attempts to "confer an affirmative duty" on a state agency. Attorney General Opinion JM-167 (1984).

In Attorney General Opinion MW-585 (1982), this office considered a rider to the appropriation to the State Board of Barber Examiners. That rider stated:

It is the intent of the [L]egislature that an interagency contract shall be executed between the State Board of Barber Examiners and the Texas Cosmetology Commission to reduce duplication of activities in inspections, enforcement and examination.

Attorney General Opinion MW-585 (citing General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art. I, at 3376). The opinion held that this rider was invalid, since it failed to "appropriate any funds nor does it detail, limit or restrict the use of funds appropriated elsewhere." Id. at 2. On the contrary, the opinion found that the rider was "a general directive to the State Board of Barber Examiners and the Texas Cosmetology Commission to take specific affirmative action." Id. The opinion concluded that the rider "constitutes general legislation"; that it was therefore "violative of article III, section 35 of the Texas Constitution"; and that as a result, it was "void and of no effect." Id. at 2-3.

In our opinion, the rider about which you inquire is similar in all particulars to that held invalid in Attorney General Opinion MW-585. It requires TDoA to take specific affirmative actions: "use the service standards, systems, billing and audit procedures, and provider bases used by the Department of Human Services." Acts 1991, 72d Leg., 1st C.S., ch. 19, art. II, § 1, at 686. It does so for the identical reason specified in the rider considered in Attorney General Opinion MW-585: to eliminate duplication. As laudable as this goal may be, its implementation is not a proper subject for an appropriations act rider. We are compelled to conclude that rider 9 constitutes general legislation; that, as such, it is violative of article III, section 35 of the Texas Constitution; and that, accordingly, it is void and of no effect.

                               SUMMARY

        A rider to the appropriation to the Texas Department on Aging which requires that agency to "use the service standards, systems, billing and audit procedures, and provider bases used by the Department of Human Services" constitutes general legislation in contravention of article III, section 35 of the Texas Constitution. It is therefore void and of no effect.

                                               DAN MORALES
                                               Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General