The opinion
THEATTOEWEY GENERAL
OF -XAS
July 31, 1963
Mr. Lester E. Harre)l, Jr. Opinion No. C- 119
Director
Texas Commission on”Hlgher Re: Various questions concerning
Education the construction of House
Austin 11, Texas Bill No. 86, Article IV,
f~;m;n 26 of the 58th Legls-
Dear Mr. Harrell: .
We quote from your letter requesting an opinion from
this office In part a8 follows:
“House Bill No. 86, Article IV, Section 26,
of the Fifty-eighth Legislature provides as fol-
lows :
“INone of the funds appropriated In this
Article to the general academic teaching instl-
tutlons shall be expended for the operation or
maintenance of compulsory physical training pro-
grams, regardless of whether or sot credits are
granted for participation In such programs, and
regardless of whether such participation Is re-
quired for degree programs. It Is speclflcally
provided, however, that the provisions of this
Section shall not apply to the followlng kinds of
physical training or physical education programs:
“Ia* Organized instructional classes for
students majoring In physical education; and
“lb. Programs of mass calisthenics con-
ducted with the-purpose of encouraging apprecl -
tion of the science of bodily exercise withou t?
apparatus or equipment, or with light hand appara-
ths or equipment, and developing bodily strengthen
and gracefulness.
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I&. mtrr B. Harrell, Jr., page 2 (C- 119 )
“*It Is the Intent of the Legislature that
physical tralning,or phyelcal education programs
of a recrea.tlonal nature be financed from student
rees, auxiliary enterprise funds or other non-
State appropriated source8.’
“In view of the fact that the Legislature
throughout the years, In creating twenty fully
State-supported lnstltutlons ofhigher education,
has vested In the governing boards of these ln-
stltutlons the authority to set the graduation
requirements, determine courses to be offered,
and enact suoh by-laws, rules and regulations ae
are necessary for the successful governanoe of
these aolleges and universities, the Texas Commls-
slon on Higher Education has direoted me to ask
your opinion as to the validity of this section OS
the general appropriations bill whioh restricts
the statutory authority previously granted to the
several governing boards of the State-supported
academic Institutions.
“If Section 26 of Article IV Is valid, It Is
-.lmperative In the administration of Its provlelons
that there be reasonable uniformity among the
twenty State-aupported academic Institutions In
the Interpretation and application of the provlsloneI
of this Section. In order to achieve this unlform-
lty and to carry out Its statutory duty of coordlna-
tlon, the Texas Commission on Higher Education de-
sires to place In the hands of the admlnlatratlve
officials of the several institutions the anawera
to the following questions:
“1. What Interpretation should be given the
term ‘mass callsthenlcs?t . e .
“2. Do courses such a8 gymnastics or tumbling
rhlch are not sports or recreational In nature but
which are solely for the purpose of ‘developing
bodily strength and gracefulness,’ ati SpecIfIcally
mentioned In Sectldn 26 Subsection b come within the
scope of ~callsthenlcs?’
“3. What equipment should be classified an
‘Light hand apparatus?’ , . .
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?4r. Lester E. Harrell, Jr., page 3 (C- 119 )
“4. Does the restriction on using appropriated
funds to support tmass callsthenlcs~ apply to physl-
cal training courses which are not ‘compulsory’ or
required?. . .
“5. In view of the specific language of Section
26 that tphyslcal education programs of a recreational
nature be flnanded from 8tudent fees, auxiliary enter-
prise funds or other non-State appropriated souroes,’
are these costs to be charged under the section of the
statute authorizing a student service fee or under
some other section of the general fee statute? . . .n
Presently there are twenty fully State-supported
lnstltutlons of higher learning In Texas. In creating these
Institutions the Legislature vested in each of the governing
boards the powers of management and government over the af-
fairs of their respective Institutions. For example, Article
2584, Vernon’s Civil Statutes, vests the government of the
University of Texas In a Board of Regents. The basic powers
of the Board of Regents to govern and manage the affairs of
the University are provided for in Article 2585, Vernon’s Civil
Statutes. Article 2585 Is quoted as follows:
~>
“They shall establish the departments of a
first-class university, determine the offices and
professorships, appoin~t a president, who shall, ifs
they think It advisable, also discharge the duties
of a professor, appoint the professors and other
officers, fix their respective salaries; and they
shall enact such by-laws, rules and regulations as
may be necessary for the successful management and
go;ernment of the University; they shall-have power
to regulate the course of Instruction and prescribe,
by and with the advice of the professors, the books
and authorities used in the several departments,
and to confur such degrees and to grant such dlplo-
mas as are usually conferred and granted bye unlier-
sltles.” (Emphasis added).
Pursuant to the powers vested In each of the governing
boards to regulate the courses of studies of those lnstltutione
under their respective jurlsdlctfons, a comprehensive and dlver-
slfled program of compulsory physical education and training has
been established.
Article IV, Section 26 of House Bill 06, 58th Texas
Legislature, 1963, Is a rider to the general appropriation bill
for the next biennium beginning September lo 1963. The validity
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Mr. Lester E. Harrell, page 4 (C- 119 )
of this rider Is controlled by Article III, Section 35 of the
Texas Constitution. Section 35, provides as follows:
‘Sec. 35. No bill, (except general approprla-
tlon bills, which may embrace the various subjects
and accounts for and on account of which moneys are
approprlatedj shall contain more than one subject,
which shall be expressed In Its title. But lf,any
subject shall be embraced In an act, which shall not
be expressed In the title, such act shall be void
only as to so much thereof, as shall not be so ex-
pressed.”
The evils to be avoided by this constitutional limlta-
tlon have been discussed in numerous cases. Typical of these
discussions Is the following from Stone v. Brown 54 Tex. 330 (1881)
at 342, In which the Supreme Court of Texas sal :
“The principal object of this constitutional
provision Is to advise the leglslature and the
people of the nature of each particular bill, so
as to prevent the Insertion of obnoxious clauses,
which otherwise mlght be engrafted thereupon and
become the law; and also to prevent combinations,
whereby would be concentrated the votes of the .
friends of different measures, none of which could
pass singly; thus causing each‘blll to stand on Its
own merits .I’
In dealing with Article III, Section 35, a rule of
liberal lnterpretatlon has always been applied. The tendency of
the decisions Is to construe the constitutional provisions on this
subject liberally rather than to embarrass legislation by a con-
struction whose strictness 1s unnecessary to the accomplishment
of the beneficial purpose for which it was adopted. Qlddlnas v.
SD 47 Tex. 548 (1877); Delllnger v. State, m S.W.2d 537
mex.Crlm.App. 1930). But at the same tl the Court has been care-
ful to point out, as was originally done ti Chief Justice Hemphlll
In Cannon v. Hemphill, 7 Tex. 208 (1851), that this provision cannot
be Ignored and thus nullified.
With reference to general appropriation bills, the Supreme
Court of Texas has held that “the appropriating of funds to.be paid
from the State Treasury Is a Psubjectl within the meaning of’Artlcle
III, Section 35, of our Constitution.” Moore v. Sheppard, 144 Tex.
537, 192 S.W.2d 559 (1946). It Is clear from the terms of the con-
stitutional provision that general appropriation bills may contain
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j : . 8
!
Mr. Lester E. Harrell, pawa 5 (C- 119 1
more than one subject of this same nature, I.e., appropriations
for the various departments and accounts. The exception of general
appropriation bills from the constitutional prohibition against
bills containing more than one subject Is a limited and restrioted
exoeptlon.
As long as a general appropriation bill Includes only
eubjects of sipproprlatlng money and 1lmltlng the ut3e thereof In
harmony with general leglelatlon, It may relate to any number of
different “subjects and accounts.” In such lnatances all of the
subject8 are under the one general object and purpose of appro-
prlatlng funds from the treasury. The obvious purpore of this
limited exception was to make oertaln that appropriations to tipore
than one department In the same bill would not be prohibited: In
all other respects general appropriation bills are subjeot to the
same prohibition as all other bills against containing more than
one subject. The result Is that general legislation oannot be
embodied within a general appropriation bill. Moore v. Sheppard,
eupra.
This doea not mean that a general appropriation bill
may not contain general provisions and details llmltlng and re-
stricting the use of the funds therein appropriated, If such
provisions are necessarily connected with and Incidental to the
awroorlatlon and use of the funds and If they do not confllot
with br amount to general leglslatlon. Conleg v. Daughters of
the Republic, 106 Tex. 80, 156 S.W. 197 n913).
“With special regard to what Incidental pro-
visions may be Included within a general appro-
priation bill, our Texas courts have not stated a
general rule. However, from statements as to what
may not be Included and from numerous opinions of
the Attorney General, we believe the rule may be
stated generally as follows: In addition to ap-
propriating money and stipulating the amount, man-
ner, and purpose of the various Items of expenditure,
a general appropriation bill may contain any provl-
slons or riders which detail, limit, or restrict thk
we of the funds or otherwise Insure that’ the money
Is spent for the required activity for which It Is
therein appropriated, If the provisions or riders
are necessarily connected with and Incidental to the
appropriation and u8e of the funds, and provided
they do not conflict with eneral legislation. See
Linden v. Finley, 92 Tex. &51, 49 S.W. 578 (18%)
d Conleg v. Daughters of the Republic SuPra.”
Etorney Oeneral’s Opinion v-1233 (1951).
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Mr. Lester E. Iiarrell, Jr., page 6 (C-119 )
General leglelatlon does more than approptiate moheyy
and limit Its expehdlture. A8 said by a former Attorney General
in Opinion No. 2965 (1935):
I .lf the Bill doee more than set asId B ~~.
eum of’m&ey, provide the mean8 of lte~dletrlbutlon,
and to whom It’shall be dletrlbuted, then It 18 a
general law. . . ’
Thus, the dlstlnotlon between general appropriation bills
and general legislation has been recognized In this State In the
simple fact that the former merely set8 apart sums of money for
specific objects and uses while the latter does more than merely
appropriate and limit the use of funda. General leglslatlon con-
stitutes a separate subject and aannot be Included rlthln a general
appropriation bill; 1 Moore v. Sheppard, swra.
Appropriation bill riders which violate Section 35 of
Article III have been more frequently discussed by the courta and
the Attorney General than those which are properly within the scope
of such bills. The majority of the riders which have been stricken
are those which attempt to mbdlfy or amend a general etatute. It
Is well settled In this State that a rider attached to a general
appropriation bill cannot repeal,
Applying the above rules to the question of the validity
of Article IV, Section 26 of House Bill 86, we find no basis for
the rider’s validity in a general appropriation bill. The intent
of the Legislature as evidenced by the language of the second para-
graph of Section 26b, Is clearly to prevent the governing boards of
the fully State-supported lnstltutlone of higher learning from ex-
pending funds for compulsory physical training or physical training
courses of a recreational nature. Obviously It seek8 to amend the
pre-existing general law which empowers the governing board8 of these
Institutions to regulate such courses of study. Also, It deal8 with
a subject other than money appropriations. Further, It 1s our opinion
that It attempts to do more than appropriate money and Is therefore
a subject of general legislation which cannot be enacted In a general
appropriation bill. Moore v. Sheppard> su ra. Attorney Qeneralts
Opinion V-1253 (1951). Also, general leg+- slatlon attempted In a general
appropriation bill, even though it Is not designed to modify or amend
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.( . k
/,
Mr. Lester E. Harrell, Jr., page 7 (C- 119 )
an existing statute, has been held unconstitutional. Moore v.
Shep,pard, supraj Attorney General’s Opinion O-445 (19397
If the rider In quest& were valid It would have the
effect of abolishing the presently existing physical education l
and training programs of all the fully State-supported lnstltu-
tlons of higher learning In this State. If the Legislature has
the authority to establish and abolish a program of compulsory
physical education in a general appropriation bill rider it can,
by the same means, prescribe and abolish any academic oouree of
study. The very statement of the proposition demonstrates that
the subject of courses of study or Instruction which are to be
conducted in the fully State-supported lnetltutlone of higher
learning In this State Is a subject of general leglslatlon eepar-
ate from and unrelated to the general appropriation of money to
operate the State agencies. It Is a subject which should have
the full consideration, opportunity for public notice and, hearings,
and opportunlty for amendment or rejection afforded general legls-
latlon but usually denied to subjects Incorporated as riders in a
general appropriation bill.
On the baslWof the authorities cited and the dlecueelon
above, It Is our opinion that the rider to the general approprlatlon
bill In question Is an attempt by the Legislature to enaot general
legislation which would have the effect of amending pre-exlbtling
law and Is therefore void.
Since we have held the general appropriation bill rider
In question invalid, It Is not necessary that we answer Questions
1 through 4, supra.
SUMMARY
Article IY, Section 26 of House Bill 86, 58th
Legislature, 1963, a rider to the general approprla-
tlon bill which prohibits the expenditure of funds
by State supported Institutions of higher learning
for the operation and...,malntenance of compulsory
physical educational programs other than organized
-’ Instructional classes for students majoring In phy-
sical education and pFograms of mass calisthenics,
Is Invalid, because It Is an attempt by the Leglsla-
ture to enact general legislation which Is not the
subject of a general appropriation bill. It Is also
void because It would have the effect of amendln
pro-existing laws which vest the power In the go %rn-
lng boards of the respective fully State-supported
Mr. Lester E. H&rell, Jr., page 8 (C- 119)
lhetltutlons of higher learning to regulate courses
of study, and In these respects It violates Article
III, Section 35 of the Texas Constitution.
Very truly yours,
WAQciONEBCARR
Attorney General
ElyI.J&p.%4~~
Raymond Wllllams, Jr.
Assistant
IRW:wb:mkh
APPROVED:
OPINIONCOMMITTEE
W. V. Qeppert, Chairman
J. C. Davis
Grady Chandler
J. S. Bracewell
Howard Mays
APPROVEDFOR THE ATTORNEY
GENERAL
BY: Stanton Stone
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