Can a Texas appropriations rider force state agencies to take and pay for the Human Rights Commission's training?

TX AG Opinion DM-0497: Was the mandatory EEO-training rider valid?

Plain-English summary

A rider tucked into the 1997 General Appropriations Act (article IX, section 120.5) told every state agency and public university that received three or more employment-discrimination complaints in a year (other than meritless ones) to spend appropriated money on "Comprehensive Equal Employment Opportunity training" provided by the Texas Commission on Human Rights, or by a provider the commission approved, and to pay the commission's costs. Texas Southern University wanted to train its employees but believed it should be able to pick its own provider (it had used the federal EEOC before), so the chair of its Board of Regents asked the Attorney General whether the university had to obey the rider.

The Attorney General concluded the rider was invalid. The Texas Constitution, in article III, section 35, limits a general appropriations act to a single subject: appropriating money. That lets the Legislature attach "riders" that detail, limit, or restrict how the appropriated funds are spent, or that simply restate existing law. What a rider cannot do is enact, amend, or repeal general law, or impose affirmative requirements on state officers or agencies that general law does not already require. This rider crossed that line. On its face it directed spending, but it did more: it forced agencies and universities to receive, and pay for, training from the commission or its approved provider once they hit three complaints, a duty found nowhere in general law.

The commission argued the rider just restated its powers under Labor Code section 21.003, but the Attorney General disagreed after going through the statute. Those provisions let the commission furnish technical assistance when a covered person requests it, provide education and outreach to people who have historically been victims of discrimination, and require state agencies and universities to develop and implement personnel policies that comply with the anti-discrimination chapter. None of them lets the commission compel an agency to attend its seminars or pay for them. The duty to adopt compliant personnel policies is real, but an agency can gather the information it needs from any source it chooses; it does not have to take training from the commission. The commission's own 1987 self-evaluation described its training as assistance offered to employers who seek it, not a mandatory program. Because the rider tried to amend general law, it violated article III, section 35 and was void, and Texas Southern University did not have to comply; it could choose its own outside provider for equal-employment training.

Currency note

This opinion was issued in 1998. 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 Commission on Human Rights was later folded into the Texas Workforce Commission's civil rights division, and the Labor Code provisions discussed here have been amended. The cited appropriations rider was specific to the 1997 biennium. Confirm the current statutes and agency structure before relying on anything here.

Who this opinion affected (as of 1998)

State agencies and public universities with three or more discrimination complaints: The opinion told them the appropriations rider could not force them to take or pay for the commission's training, so they were free to choose their own equal-employment training providers.

The Texas Commission on Human Rights: The opinion meant the commission could not use the rider to require agencies to attend and fund its seminars; its statutory role was to furnish assistance on request and to require agencies to adopt compliant personnel policies, not to mandate training.

The Legislature and appropriations drafters: The opinion was a reminder that a general appropriations rider cannot impose new affirmative duties or amend general law; it can only direct and restrict the spending of appropriated funds.

Texas Southern University specifically: The opinion resolved the university's question in its favor, confirming it could keep choosing an outside agency, such as the EEOC, to train its employees.

Common questions

Can an appropriations rider make a state agency take specific training?
No, not if it imposes a new duty. The opinion held a rider can only detail, limit, or restrict how appropriated funds are spent and cannot impose affirmative requirements that general law does not already require.

Why was the EEO-training rider invalid?
The opinion concluded it tried to amend general law by forcing agencies to receive and pay for the commission's training, violating the single-subject rule for appropriations acts in article III, section 35 of the Texas Constitution.

Doesn't the Labor Code let the Human Rights Commission require this training?
No. The opinion found Labor Code section 21.003 lets the commission furnish technical assistance on request, provide outreach to discrimination victims, and require agencies to adopt compliant personnel policies, but not compel attendance at or payment for its seminars.

Did Texas Southern University have to use the commission's training?
No. The opinion concluded the university need not comply with the rider and could choose its own outside provider for equal-employment training.

Background and statutory framework

Article III, section 35 of the Texas Constitution limits a general appropriations act to the single subject of appropriating funds, while allowing multiple "items of appropriation." Under prior opinions and case law, a rider may qualify, direct, or restrict the use of appropriated funds, or restate existing law, but may not enact, amend, or repeal general law or impose affirmative requirements on state officers or agencies (Jessen Assoc., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975); Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946); Linden v. Finley, 49 S.W. 578 (Tex. 1899); Coates v. Windham, 613 S.W.2d 572 (Tex. Civ. App.-Austin 1981, no writ); see also article IV, section 14 on the governor's item veto).

The rider at article IX, section 120.5 of the 1997 act directed agencies and universities with three or more discrimination complaints to receive and pay for comprehensive EEO training from the commission or its approved provider. The Attorney General found no general law imposing that duty. The commission relied on Labor Code section 21.003(a)(5), (8), and (9), but the opinion read those as authorizing the commission to furnish technical assistance "requested by a person subject to this chapter," to provide education and outreach to historical victims of discrimination, and to require agencies and universities to develop and implement compliant personnel policies, none of which authorizes compelling attendance at or payment for seminars. The contrast with section 21.003(a)(4), which expressly lets the commission compel attendance and production by subpoena, reinforced that the assistance provisions are request-based, as do other "technical assistance" statutes that make agencies responsible only for making information available on request (Government Code sections 531.013(a), 419.904). The commission's own 1987 sunset self-evaluation described its training as assistance to employers who seek it. The opinion therefore held the rider attempted to amend general law in violation of article III, section 35 and was invalid, so Texas Southern University need not comply.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. III, § 35; art. IV, § 14
• Tex. Labor Code §§ 21.001, 21.003
• Tex. Government Code §§ 419.904, 531.013(a)
• 1997 General Appropriations Act, art. IX, § 120.5

Cases:

• Jessen Assoc., Inc. v. Bullock, 531 S.W.2d 593 (Tex. 1975)
• Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)
• Linden v. Finley, 49 S.W. 578 (Tex. 1899)
• Coates v. Windham, 613 S.W.2d 572 (Tex. Civ. App.-Austin 1981, no writ)

Prior Attorney General opinions:

• Letter Opinion No. 96-079 (1996); Attorney General Opinions JM-343 (1985), MW-51 (1979), H-321 (1974), V-1254 (1951), DM-93 (1992), DM-81 (1992), JM-1151 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0497
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0497.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

December 22, 1998

Mr. Willard L. Jackson, Jr.
Chair, Board of Regents
Texas Southern University
3100 Cleburne Avenue
Houston, Texas 77004

Opinion No. DM-497

Re: Validity of rider to appropriations act requiring certain state agencies to expend appropriated funds for training provided by the Texas Commission on Human Rights (RQ-1029)

Dear Mr. Jackson:

You ask whether a state agency or institution of higher education with three or more complaints of employment discrimination in a year must allow the Texas Commission on Human Rights ("TCHR" or "commission") to conduct a seminar for its employees at the agency's or institution's expense. You state that Texas Southern University ("TSU") has previously had the Equal Employment Opportunity Commission conduct such seminars for it. We understand that TSU wishes to provide such training for its employees, but it believes that it may choose the provider.

The TCHR states that this training is required by a rider [Footnote: The term "rider" is used to describe a provision of text included in a general appropriations act. Letter Opinion No. 96-079 (1996) (and authorities cited).] to the 1997 General Appropriations Act. The rider, found at article IX, section 120.5 of the General Appropriations Act, provides as follows:

All state agencies, including public institutions of higher education, that have three or more complaints of employment discrimination, other than complaints determined to be without merit, during each year of the biennium shall expend funds appropriated by this Act to receive Comprehensive Equal Employment Opportunity training to be provided by the Texas Commission on Human Rights or other entities or persons approved by the Commission for supervisory and managerial personnel. The Commission shall train supervisory and managerial personnel who are respondents named in the complaints against such agencies. Each agency shall pay for all training costs or reimburse the Commission for its costs associated with this training through interagency contracts. The cost of training provided by the Commission shall be determined and approved by the Commission and the General Services Commission. [Footnote: Act of May 29, 1997, 75th Leg., R.S., ch. 1452, art. IX § 120.5, 1997 Tex. Gen. Laws 5535, 6414.]

TSU questions whether it must comply with the above rider, thereby raising an issue of the rider's validity. A rider must comply with article III, section 35(a) of the Texas Constitution, which provides in part: "No bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject." (Emphasis added.)

In Letter Opinion No. 96-079, [Footnote: Letter Opinion No. 96-079 (1996) at 1-2 (footnotes renumbered).] we discussed the effect of this constitutional provision:

Section 35 of article III limits appropriations bills to a single subject, the appropriation of funds from the State Treasury. [Footnote: Jessen Assoc., Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex. 1975); Moore v. Sheppard, 192 S.W.2d 559, 561 (Tex. 1946); Linden v. Finley, 49 S.W. 578 (Tex. 1899); Attorney General Opinions H-321 (1974) at 2; V-1254 (1951) at 7.] The exception italicized above permits a general appropriations act to include multiple "items of appropriation," each one setting aside or dedicating a sum of money for a stated purpose. [Footnote: Jessen, 531 S.W.2d at 599; see generally Tex. Const. art. IV, § 14 (if bill contains several items of appropriation, governor may veto one or more of such items and approve rest of bill).] Because general appropriations acts are limited to the single subject of appropriating funds, a general law may not be enacted, amended, or repealed in such acts. [Footnote: Moore, 192 S.W.2d at 561-62; Linden, 49 S.W. at 579; Attorney General Opinion V-1254 (1951) at 7; see also Attorney General Opinions DM-93 (1992), DM-81 (1992), JM-1151 (1990).] A rider to the general appropriations act may not impose affirmative requirements on state officers or entities. [Footnote: See Coates v. Windham, 613 S.W.2d 572, 575-76 (Tex. Civ. App.--Austin 1981, no writ); Attorney General Opinions DM-81 (1992), MW-51 (1979) at 4.] However, a rider that is merely declarative of existing law is not invalid. [Footnote: Attorney General Opinion JM-343 (1985) at 3 (modified in part by Attorney General Opinion DM-81 (1992) at 2).]

A general appropriations bill may constitutionally include language that qualifies or directs the use of funds appropriated by the bill or that is merely incidental to an appropriation. Such provisions, or "riders," may do no more than "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." [Footnote: Attorney General Opinion V-1254 (1951) at 17 (summary).]

The rider facially restricts the use of appropriated funds by directing an expenditure of appropriated funds for a specific purpose, but it does more than that. It imposes on state agencies and institutions of higher education affirmative requirements that are not authorized by general law, and, in our opinion, the rider is invalid for that reason. We find no statute requiring agencies and institutions of higher education with three complaints of employment discrimination in one year to receive comprehensive equal employment opportunity training from TCHR or another agency approved by TCHR. The commission cites subsections 21.003(a)(5), 21.003(a)(8), and 21.003(a)(9) of the Labor Code, [Footnote: Letter from William M. Hale, Exec. Dir., Tex. Comm'n on Human Rights, to Susan Williams, Office of Texas Attorney General (Mar. 10, 1998) (in file on RQ-1029).] but we have determined from our examination of these provisions that the rider does more than merely restate these subsections and instead attempts to amend them by imposing on state agencies and institutions affirmative duties not required by section 21.003.

Chapter 21 of the Labor Code [Footnote: The Texas Human Rights Commission is established by chapter 461 of the Government Code, but its duties and authority with respect to preventing employment discrimination are found in chapter 21 of the Labor Code.] prohibits employment discrimination, providing "for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." [Footnote: Labor Code § 21.001.] Section 21.003 of the Labor Code sets out the following general powers and duties of the commission:

(a) The commission may:

. . .

(2) receive, investigate, seek to conciliate, and pass on complaints alleging violations of this chapter;

(3) file civil actions to effectuate the purposes of this chapter;

(4) request and, if necessary, compel by subpoena;

(A) the attendance of necessary witnesses for examination under oath; and

(B) the production, for inspection and copying, of records, documents, and other evidence relevant to the investigation of alleged violations of this chapter;

(5) furnish technical assistance requested by a person subject to this chapter to further compliance with this chapter or with a rule or order issued under this chapter;

. . .

(8) provide educational and outreach activities to individuals who have historically been victims of employment discrimination; and

(9) require state agencies and public institutions of higher education to develop and implement personnel policies that comply with this chapter.

None of these provisions require any state agency or institution of higher education to take seminars from TCHR or an entity approved by TCHR or to pay the cost of such seminars, nor do they authorize TCHR to impose such requirements on anyone.

Subsection 21.003(a)(4) provides that TCHR may "request and, if necessary, compel by subpoena" the attendance of witnesses and the production of evidence. In this subsection, the legislature has made it clear that the commission may compel compliance and has given it the necessary power to do so. In contrast, subsection 21.003(a)(5), which authorizes the commission to "furnish technical assistance requested by a person subject to this chapter," allows the commission to provide assistance in response to a request, not to require attendance at its seminars. Labor Code § 21.003(a)(5) (emphasis added). Other statutes requiring state agencies to provide technical assistance to third parties show that the agency is responsible only for making information available to parties that seek it out. Section 531.013(a) of the Government Code requires health and human services agencies to "coordinate and enhance their existing Internet sites to provide technical assistance for human services providers." The technical assistance consists of information on various subjects useful to human service providers, such as case management and contract management. Section 419.904 of the Government Code states that the Texas Commission on Fire Protection "may on request provide technical assistance to rural fire prevention districts, including advice on the efficient and effective provision of fire protection within a district."

Subsection 21.003(a)(8) of the Labor Code authorizes the commission to "provide educational and outreach activities to individuals who have historically been victims of employment discrimination," but this language does not authorize it to require any state agency or institution of higher education to receive education or outreach activities. Finally, subsection 21.003(a)(9) authorizes the commission to "require state agencies and public institutions of higher education to develop and implement personnel policies that comply with this chapter." This subsection does allow the commission to impose a duty on a state agency or public institution of higher education, but the duty is to develop and implement personnel policies that comply with chapter 21 of the Labor Code, not a duty to attend and pay for a seminar given by the commission. An agency or institution of higher education may wish to gather information in connection with developing and implementing its personnel policies, but it is not required to receive information from a particular source. It may choose to request the commission to "furnish technical assistance" to it pursuant to subsection 21.003(a)(5), Labor Code, or it may gather information from other sources.

The commission's 1987 self-evaluation to the Texas Sunset Advisory Commission describes the technical assistance and training services given by the commission in a way that is consistent with our reading of its statutory authority. It states as follows:

The primary focus of the Commission's technical assistance and training services is to enhance compliance by employers with laws prohibiting employment discrimination. These services are provided in a number of different ways.

Individual employer representatives or their attorneys regularly contact the Commission by telephone, correspondence or in person to secure technical information about a wide range of issues related to equal employment opportunity laws. . .

The Commission conducts annual conferences on equal employment law for employers and union representatives or their attorneys. These conferences are designed to inform attendees about the most current developments in equal employment opportunity law, as well as basic technical information on compliance.

The Commission also conducts comprehensive eight hour training seminars for supervisory and managerial personnel. These seminars provide basic technical information that enhances a supervisor's or manager's knowledge of and compliance with laws prohibiting employment discrimination.

Nothing is said here about mandatory seminars for supervisory and managerial personnel named as respondents in complaints against state agencies and institutions of higher education.

We conclude that the rider to the current appropriations act found at article IX, section 120.5, attempts to amend general law in violation of article III, section 35 of the Texas Constitution and is therefore invalid. Accordingly, Texas Southern University need not comply with its terms in choosing an outside agency to provide training sessions and equal employment opportunity seminars for its employees.

SUMMARY

The rider to the 1997 appropriations act found at article IX, section 120.5, attempts to amend general law in violation of article III, section 35 of the Texas Constitution and is therefore invalid. Texas Southern University need not comply with its terms in choosing an outside agency to provide training sessions and equal employment opportunity seminars for its employees.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General