Could an appropriations rider require the Texas National Guard Armory Board to spend construction and maintenance funds through the Adjutant General's Department?

Texas AG Opinion JM-885: Armory Construction Funds Through the Adjutant General

Plain-English summary

The Texas National Guard Armory Board asked whether rider 17 in the current appropriations act was valid. The rider allowed specified Armory Board construction, maintenance, and support expenditures only through interagency contracts with the Adjutant General's Department.

The interagency statute allowed state agencies to contract for authorized services but generally barred one agency from constructing a building for another unless existing law supplied that authority. The Armory Board argued that the Adjutant General's Department had no construction authority, which would make the rider an improper attempt to change general law through an appropriations act.

The Attorney General found implied authority. The Adjutant General controlled the state military department and was directed to perform duties comparable to the chiefs of staff and military secretaries. Federal law included construction, maintenance, and repair of military buildings among the Secretary of the Army's responsibilities. State law also authorized the department to employ workers necessary for its operations, and agency records described its active facilities-engineering role.

Rider 17 therefore did not force the department beyond its statutory responsibilities. It also differed from invalid riders that commanded agencies to enter contracts or converted permissive statutory authority into a mandatory program. This rider conditioned the Armory Board's use of specified appropriated funds on a cooperative arrangement with a closely related state agency.

Because the condition was germane to the appropriation and did not enact, amend, or repeal general law, the rider was valid under article III, section 35, of the Texas Constitution.

Currency note

This opinion was issued in 1988. 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.

Common questions

Did the Adjutant General's Department have express building authority?

The opinion found broad implied authority rather than one narrow express grant. Its military-management duties included responsibility for necessary facilities.

Why did federal Army law matter?

State law directed the Adjutant General to perform duties comparable to federal military leadership. The federal statute expressly included construction, maintenance, and repair of buildings.

Did the interagency statute prohibit the contracts?

No. Its construction restriction allowed work otherwise authorized by existing law, and the opinion found that authority in the Adjutant General's statutory duties.

Did rider 17 force the Armory Board to sign a contract?

It did not independently command a contract. It made the specified appropriated funds available only through an interagency contract.

Why was the rider constitutional?

It directed how appropriated money could be used and was germane to the appropriation. It did not change the agencies' underlying legal powers.

Background and statutory framework

Article III, section 35, generally limited bills to one subject and required appropriations riders to qualify or direct the use of funds rather than enact general law. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 599-601 (Tex. 1975), distinguished an appropriation item from a germane rider. Strake v. Court of Appeals, 704 S.W.2d 746 (Tex. 1986), confirmed that a rider could not adopt, repeal, modify, or amend existing general law.

The Armory Board possessed express powers to acquire, construct, maintain, and operate armories. Texas National Guard Armory Board v. McCraw, 126 S.W.2d 627 (Tex. 1939), and Texas Public Building Authority v. Mattox, 686 S.W.2d 924 (Tex. 1985), described its public role.

Government Code chapter 431 gave the Adjutant General control of the military department and duties paralleling federal military leadership. Read with 10 U.S.C. section 3013, those provisions implied authority over necessary military construction and maintenance.

Citations

Constitutional and statutory authority:

• Texas Constitution article III, section 35
• V.T.C.S. article 4413(32), sections 3 and 5
• Government Code sections 431.001, 431.002, 431.022, 431.028 through 431.030, 435.004, 435.013, 435.023, and 435.041
• 10 U.S.C. section 3013
• General Appropriations Act, Acts 1987, 70th Legislature, Second Called Session, chapter 78, article I, rider 17, at 525

Cases:

• Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 599-601 (Tex. 1975)
• Strake v. Court of Appeals, 704 S.W.2d 746 (Tex. 1986)
• Texas National Guard Armory Board v. McCraw, 126 S.W.2d 627 (Tex. 1939)
• Texas Public Building Authority v. Mattox, 686 S.W.2d 924 (Tex. 1985)

Prior Attorney General materials referenced: V-1254 (1951), MW-585 (1982), JM-167 (1984), and JM-256 (1984).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-885
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0885.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

f-.
April 6, 1988

Nr. John Hille
Opinion No. JM-885
Acting Executive Director
Texas National Guard
Re: Construction of certain
Armory Board
riders to the current appro-
P. O. Box 5218
priation for the National
Austin, Texas 78763
Guard Armory Board (RQ-1210)

Dear Mr. Hille:

You have requested an opinion construing a rider in the current appropriations act which provides that certain .expenditures from appropriations to the National Guard Armory Board may be made only through interagency contracts with the Adjutant General's Department. The relevant items of appropriation, found in the combined appropriation to the Adjutant General's Department and National Guard Armory Board, are as follows:

ADJUTANT GENERAL'S DEPARTMENT/NATIONAL GUARD ARMORY BOARD
For the Years Ending
August 31, August 31,
1988 1989
National Guard Armory Board: a. Administration and
Support Services $ 2,820,441 $ 2,905,817 b. Acquisition and
Construction
4.670.710

Total, Facilities
Acquisition
S 2.820.441 s 7.576.527

Facilities Maintenance: a. National Guard
Armory Board $ 2,594,467 $ 2,638,584 b. Adjutant General's
Department 2,020,513 2,020,513
C. Utilities, National
Guard Armory Board 2.366.709 2.366.709 Total, Facilities
Maintenance
S 6.981.689 S 7.025.806

p. 4323

Mr. John Hille - Page 2 (JM-885)

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. I, at 525. The rider you inquire about is rider 17, which provides as follows:

17. Expenditures from Item 4.b. Acquisi- tion and Construction, and Item 5-a. Facili- ties Maintenance, National Guard Armory Board, be made [sic] only through inter- agency contracts with the Adjutant General's Department. In addition, from Item 4.a.
Administration and Support Services, expen- ditures of $146,826 in fiscal year 1988 and $233,802 in fiscal year 1989 shall be made only through interagency contracts with the Adjutant General's Department.

Id. at 525. you suggest that the Adjutant General's Department lacks authority to engage in construction and that it may not enter into a contract under the Interagency Cooperation Act to provide construction services to the National Guard Armory Board. V.T.C.S. art. 4413(32), 53.

The validity of an appropriations act rider is deter- mined by reference to article III, section 35, of the Texas Constitution, which provides in part:

Sec. 35. (a) 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.)

Tex. Const. art. III, §35. The Texas Supreme Court has explained the underlined language as follows:

Despite the apparent exception for general appropriations bills, it has been held that they too must be limited to a single subject, which is the appropriation of funds to be paid from the State Treasury. a , 144 Tex. 537, 192 S.W.2d 5;;
, 92 Tex. 451,
See Texas Attorney
General Opinion No. V-1254 (1951).

Jessen Associates. Inc. v. Bullock 531 S.W.2d 593, 600 (Tex. 1975). An "item of appropriation" sets aside or dedicates funds for a specified purpose, while a valid rider qualifies or directs the use of appropriated funds

p. 4324

,

Mr. John Hille - Page 3 (JM-885)

or is merely incidental to an appropriation. Jessen Associates. Inc. v. Bullock supra at 599. To be valid, a - rider must be germane to th; appropriation of funds. Id. at 601. A rider attached to a general appropriation bill cannot adopt, repeal, modify, or amend an existing general law. Strake v. Court of Anneals, 704 S.W.2d 746 (Tex.
1986); Moore V. Sheppard 192 S.W.2d 559 (Tex. 1946);
Linden v. Finley, 49 S.W. 578 (Tex. 1899); Attorney General Opinion V-1254 (195;).
you suggest that rider 17 is invalid on the ground that the Adjutant General's Department lacks authority to enter into an interagency contract to construct buildings for the Armory Board. you argue, in effect, that rider 17 is invalid because it is inconsistent with provisions of general law governing the Adjutant General's Department, and it thus attempts to amend general law.

The following provisions of the Interagency Cooperation Act are relevant to your argument:

Sec. 3. Any state agency may enter into and perform a written agreement or contract with other agencies of the state for fur- nishing necessary and authorized special or technical services, including the services of employees, the services of materials, or the services of equipment. . . . Provided, however, nothing herein shall authorize any agency to construct any highway, street, road, or other building or structure for any other agency, except as otherwise specifi- cally authorized by existing law. . . .

. . . .

Sec. 5. No agreement or contract may be entered into or performed which will require or permit an agency of the State to exceed its constitutional or statutory duties and responsibilities, or the limitations of its appropriated funds.

V.T.C.S. art. 4413(32), §§3, 5.

You point out that the Adjutant General's Department has no express authority to construct any building. The National Guard Armory Board, in contrast, was established to acquire sites and build armories to house the Texas National Guard and its equipment, and to provide a means of financing the construction of armories. Texas National

p. 4325

Mr. John Hille - Page 4 JM-885)

Texas National Guard Armory Board v. McCraw, 126 S.W.2d 627 (Tex. 1939); See Texas Public Building Authority v. Mattox, 686 S.W.2d 924 (Tex. 1985). The Armory Board
is a public authority and a body politic and corporate and has all powers necessary for the acquisition, construction, rental, control, maintenance, and operation of Texas National Guard or Texas State Guard armories, including all property and equipment neces- sary or useful in connection with the armories.

Gov't Code §435.013. It may issue bonds to acquire building sites or to construct, remodel, equip, or repair buildings and may lease buildings to the Adjutant General's Department. Gov't Code §§431.030, 435.023, 435.041(a)..

This brief summary of important provisions governing the Armory Board shows, its close connection with the Adjutant General's Department. In addition, the Armory Board is composed of three senior officers of the Texas National Guard and three members of the general public who are appointed by the governor with the advice and consent of the Senate. Gov't Code §435.004.

Although the Armory Board ha& express power to construct buildings for the National Guard, it does not necessarily have exclusive power over construction. The adjutant general has broad powers which, in our opinion, include implied authority to build, maintain, and repair buildings necessary to carry out his responsibilities. He controls the military department of the state, which includes the Texas National Guard and the the Texas State Guard. Gov't Code §§431.022, 431.001(3)(4). The adjutant general is subordinate only to the governor, who is commander-in-chief of the state military forces. Gov't Code §431.002. He is directed by statute to
perform for the state as near as practicable the duties that pertain to the chiefs of staff of the amy and air force and the secretaries of the military services, under regulations and customs of the United States armed forces. . . .

Gov't Code 5431.029(2). Federal law provides that the Secretary of the Army

p. 4326

Mr. John Hille - Page 5 (JM-885)

is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Army, including the following functions:

Recruiting.
Organizing.
Supplying.
Equipping (including research and development).
Training.
I:; Servicing.
(7) Mobilizing.
(8) Demobilizing.
(9) Administering (including the morale and welfare of personnel).
Maintaining.
I::; The construction, outfitting, and repair of military equipment.
(12) The construction.
. . maintenance. and repair of buildings. structures, and utilities and the acquisition of real property and interests in real property necessary to carry out the responsibilities specified in this section. (Emphasis added.)

10 U.S.C. §3013. Section 431.029 of the Government Code, read together with section 3013 of title 10, United States Code, gives the Adjutant General some authority to build, maintain and repair buildings as necessary to carry out his duties. Moreover, the Adjutant General has authority to "employ clerks, employees, and laborers as necessary to carry on the operations of the department." (Emphasis added. ) Gov't Code §431.028. The Report to the Sunset Advisory Commission by the Adjutant General's Department indicated that the department had responsibility to see that facilities to house and train the army and air guard units were constructed and maintained in serviceable condition. Adjutant General's Department, Report to the Sunset Advisory Commission at 2. The department's annual report for 1987 described the responsibilities of its Directorate of Facilities Engineering as the development, acquisition, construction, maintenance and operation of facilities for the Texas Army National Guard. Ad jutant General's Department of Texas, Annual Reports, at 22-23. Construction projects included a warehouse, a troop medical clinic, and an armory. Id. at 42. Texas National Guard engineering units performed some of the construction and maintenance work. Id. at 23.

p. 4327

Mr. John Hille - Page 6 (JW-885)

The Adjutant General#s Department has implied
authority to construct and maintain buildings when necessary to carry out its statutory responsibilities. Rider 17 does not confer general law powers on the Adjutant General's Department, but instead recognizes that it has authority to provide construction services. Nor does this rider attempt to confer upon the Adjutant General's Department the Armory Board's discretion to decide what construction and repair projects to undertake. The rider contemplates that the Armory Board will contract with the Adjutant General's Department, instead of a private construction company, for the supervision of construction services necessary to implement its decision.

Rider 17 also requires expenditures for maintenance
of facilities to be made only through interagency con- tracts with the Adjutant General's Office. As already pointed out, the Adjutant General's Office has implied authority to maintain buildings, and the Armory Board's decisions about building maintenance may be implemented by a contract with the Adjutant General's Office. Rider 17 requires some of the Armory Board's expenditures for administration and support services to be made through interagency contract. Attorney General Opinion RW-352 (1981) decided that the National Guard Armory Board could contract with the adjutant general under the Interagency Cooperation Act for the services of employees.

We finally point out that rider 17 differs from the rider which was said to be invalid in Attorney General Opinion MW-585 (1982). The rider at issue in that opinion stated in part:

It is the intent of the Legislature 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 inspec- tions, enforcement and examination.

General Appropriations Act, Acts 1981, 67th Leg., ch. 875, art. I, at 3376. This rider was invalid because it did not appropriate funds, nor did it detail, limit or restrict the use of funds appropriated elsewhere. Instead, it directed the State Board of Barber Examiners and the Texas Cosmetology Commission to take specific affirmative action. Attorney General Opinion WW-585 (1982).

Rider 17 is also distinguishable from the rider held invalid in Attorney General Opinion JM-167 (1984). That

p. 4328

Mr. John Hille - Page 7 (JM-885)

rider to the appropriation for the State Commission for the Blind provided in part:.

9. It is the intent of the Legislature that out of funds appropriated above in item 5.~. Older Blind Contract Training an amount not to exceed $272,146 each fiscal year shall be expended for entering into a con- tract with the Texas Lions League or a similar organization to provide rehabilita- tive services to blind adults. . . .

Acts 1983, 68th Leg., ch. 1095, art. II, §9, at 5954. The opinion pointed out that the State Commission for the Blind had permissive authority to cooperate with public and private agencies in providing facilities and services for vocational rehabilitation of blind individuals. Human Resources Code §91.052(b)(l). The rider attempted to make mandatory a contract which general law made permissive. It therefore was invalid general legislation contained in an appropriations act in violation of article III, section 35, of the Texas Constitution. Attorney General Opinion JM-167 (1984).

Rider 17 does not attempt to impose a mandatory duty on the Armory Board to contract with a private entity, or to enter into any contract at all. Instead, it conditions the boardrs receipt of appropriated funds for construc- tion and maintenance on the board's contracting with the Adjutant General's Department to perform the work. See generally Attorney General Opinion V-1254 at 10 (1951) (discussing appropriations subject to a condition). General law establishes a close relationship between the functions of the Armory Board and those of the Adjutant General's Office, and the appropriations act recognizes this connection by giving the two entities a combined appropriation. In view of these circumstances, we believe the legislature may allocate funding to a cooperative endeavor between the two entities as it has done in rider

17. See aenerally Attorney General Opinion JM-256 (1984)
    (power to allocate public funds between state agencies is a legislative power). Rider 17 does not attempt to enact, amend, or repeal a general law in violation of article III, section 35(a), of the Texas Constitution.

                        SUMMARY
    
          The Adjutant    General's   Department,
     governed by chapter 431 of the Government
     Code, has    implied authority    to   build
     and maintain facilities.   Rider 17 to the
    
                  p. 4329
    

Mr. John Hille - Page 8 (JM-885)

combined 'appropriation to the Adjutant General's Department and the National Guard Armory Board in the current appropriation act, which provides that an appropriation to the Armory Board for construction and maintenance may be spent only through interagency contracts with the- Adjutant General's Office, does not violate article III, section 35, of the Texas Constitution.

Attorney General of Texas

MARY KELLER
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

p. 4330