The opinion
.
The Attorney General of Texas
it4 MATTOX November 20, 1985
Overrules in part MW-382
AttorneyGeneral
Supr~ma Cauct Building Ronorable Bob Bul:Lock Oplnioo No. JM-382
P. 0. BOX 1254 Comptroller of Pub:licAccbmts
Austin. TX. 7071% 2549 L.B.J. Building Ret Per diem for menbers
51214752Wl Austin, Texas 713774 state boards and commissions
TalKa 91om7c1367
Telecopier SY475M68
Dear Mr. Bullock:
714 Jackson. Suite 700 You ask several questions regarding the scope and application
Dallas. TX. 75202d506 a rider to the current General.Appropriations Act which provides
21u7424944
the per diem of state board and commission members. Ses Acts 1985,
69th Leg., ch. 9BD, art. V, 14, at 7761. Article 6813f, V.T.C.S.,
4924 Albmls Ave.. SuitS 180 furnishes the basis for this rider.
El Paso. TX. 799052793
915lm3484 Article 6813C provides in full:
01 Texas. Suits 700 Sect Lou 1. In this Act, ” state board or com-
rlouston. TX. 77002-3111 UiSSiOll' means a board, commission, committee,
713.223-5886 council, or other similar agency in the stats
government that is composed of two or mere
members.
806 Broadway, Suits 312
Lubbock. TX. 794014479
Sw747.5239 Sec. 2. A member of a state board or com-
mission is entitled to per diam relating to the
member’s service on the board or commission. The
4309 N. Tenth. Suite S
amount of the per diem is the amount prescribed by
McAllan. TX. 78501-1685
512mS2.4!547 the General Appropriations Act.
Sec. 3. Each law prescribing the amount of per
200 Main Plaza. Suite 400 diem rl:l.atingto membership on a state board or
San Antonio. TX 782052797
cossuissionis suspended to the extent of a cou-
512/2254191
flict with this Act. If the General Appropria-
tions iwt does not prescribe the amount of per
An Equal OppOrtUnityI diem to which a member of a state board or
Afflrmrtivs Action EmPlOW commission is entitled by law. the law prescribing
the amount of per diem is not suspended by this
Act. 1.f a law imposes a limit on the number of
days fo,r which a member of a state board or
commission is entitled to claim per diem, the
limit Is not suspended by this Act.
Aonorablo Bob Bullock - Pajle 2 (~'~-3821
Article 6813f does primarily two things. First, it specifies
that the per diem of state board and commission members, as defined in
section 1. shall be the amount prescribed by the General Approprla-
tione Act. Second, it suc.pends each law prescribing the amount of a
board or commieaion membex'r per diem to the extent of conflict. The
bill analyair for article 5813f. as originally enacted, stated that
[t]he per diem ::ate for state boards and commis-
sions is established in the enabling legislation
and cannot be changed short of amending the act.
Because of infla.tion, the mounts in moat in-
stances are grossly inadequate.
Bill Analysis to B.B. No. 957, filed in Bill File to A.B. No.. 957,
Legislative Reference Library. The purpose of article 6813f vas,
therefore,
[t]o provide fc,r the establishment of per diem
entitlements in the General Appropriations Act.
Thus, articIe 6813f c~llowsfor flexibility in firing the rate of
per diem by tying it to the Appropriations Act and attempts te provide
uniformity by making one rate applicable to the various boards and
commissions. General law is a necessary prerequisite to an
Appropriations Act rider ,v'hichpurports to prescribe the per diem of
all board and commissic~n members because of the constitutional
principle that a rider to ,a general appropriations bill cannot amend,
modify, or repeal general lav. See Tsx. Cone. art. III, 135; Moore
v. Sheppard, 192 S.W.Zd 519 (Tex.1946); Coates V. Windham, 613 S.G;.2d
572 (Tex. Clv. App. - .Austin 1981, no writ). Accordingly, an
Appropriations Act rider which provides for per diem must be limited
to the scope of article 681,3f.
Section 4 of article V prescribes the per diem of state board and
commission members as folious:
PER DIW OF 13OARD OR COhXISSION MEMBERS. As
authorized by !iection 2 of Article 6813f. Texas
Revised Civil St,atutesAnnotated, the per diem of
state board an& commission members shall consist
of (1) the amounts of compensatory per diem at $30
per day; (2) ac,:ualexpenses for meals and lodging
as authorized t#y this Act not to exceed the
maximum amount allowed as a deduction for state
legislators wtile away from home during a
legislative se:wion as established pursuant to
the Internal Revenue Code 26 D.S.C. Section
p. 1747
Eonorabla Bob Bullock - Page 3 (~11-382)
162(i) (1)(B)(ii); and (3) transportation. In the
event the maximum smount allowed as a deduction
for state 1eg:lalators pursuant to the Internal
Revenue Code a.8 provided above is raired to an
amount above $100, the m~x9sum amount of meala and
lodging portion of the per diem paid to board and
commiss~oo meu&ers under this sectioo shall not
exceed $100.
The items ,:f appropriation for per diem of
board or comm%ssion members include compensatory
per diem onl!,. No employee paid from funds
appropriated by this Act shall be paid both a
salary and compensatory per diam for concurrent
service as a state employee and as a board or
comission memlwr.
Acts 1985, 69th Leg.. ch. 980. azt. V, 44, at 7761.
Your first question relates to the meaning of “state board or
commission” under artic:.a 6813f (and, therefore, under section 4 of
article V). You ask:
Whether a state board or commission must be
created by statute in order to get per diem under
article 6813f, or can the board or commission be
created by an executive order, a legiblative
resolution. cr pursuant to a state agency’s
statutory authority to appoint advisory com-
mittees.
Section 1 of article 6813f defines state board or conmxissionas
“a board, commission. cmmittee. council, or other similar agency In
the state government that is composed of NO or more members.”
Article 6813f’s bill a:vllysis. quoted above, reveals concern about
fixed per diem rates wtablished “in the enabling legislation” of
boards and commissions. This suggests that only boards and commis-
sions which have fixed per diem rates established by statute are
affected by article 681:,f. Article 6813f. however, also evidences the
legislative intent to m;~icaall per diem rates uniform. Moreover, the
language used In section 1 is broad; it clearly encompasses clore than
just boards and commis:3ions vith per diem rates fixed in their
enabling legislation. N? believe that the phrase “boards and commls-
dons” as used in article 6813f refers to a subcategor]rof adminis-
trative agencies with statewide jurisdiction. See generally Attorney
General Opinions MT-460 (1982); W-352, MW-323 (1981); W-177. MW-142
(1980). Thus, the score of article 6813f is not limited to bodies
created by statute: it may include boards and commissions created
p. 1748
Honorable Bob Bullock - Paw 4 (~11-382)
pursuant to executive ordm, to agency authority, and to legislative
resolution. -See Attorney General Opinion MW-323.
Your second question 1s as follow:
If a board hr.a a specific statute passed prior
to article 68131 which defines how a board is to
be reimbursed f’ve expenses, and that statute is
silent on the Issue of compensation to be paid its
members, are .thc members entitled to receive
compensatory pez’ diem under article V, section 4
of the General Appropriations Act?
Subsection (1) of article V, section 4. provides for “compensatory per
diam at $30 per day.” Act,3 1985. 69th Leg., ch. 980, art. V, 54, at
7761. >
In asking this querlt:ion,you refer specifically to Attorney
General Opinion JM-349 (1%5), In which oe concluded that a member of
the State Property Tax Board is not entitled to receive the
compensatory per diem provided for in subsection (1) of article ?,
section 4. because the st.atutegoverning the Tax Board prohibited its
members from receiving ccnpensation for their service on the board.
Because article 6813f vati intended to preempt only “law prascribing
the amount of per diem relating to membership on a state board or
comnission.” and because the statute in question “prohibited” rather
than “prescribed” the p;%yment of compensatory per diem, Attorney
General Opinion JM-349 conl:ludedthat the compensation section of the
rider did not apply.
Thus, article 6813f preempts prior statutes only to the extent of
confllct . When an existing statute specifies a* amount cf
compensatory per diem or merely that compensatory per diem shall be
paid. article 6813f. in conjunction with subsection (1) of section 4
of article V, supplies the amount of compensatory per diam for the
biennium. For example, if a statute, enacted prior to article 6813f.
provided for reimbursernewt for actual expenses plus $100 per day,
article 6813f .in conjunction with the current rider would (1) replace
the $100 compensation allowance with the $30 compensatory per dizm
provision and (2) limit the amount that can be paid to reimburse for
actual expenses. On the other hand, if a prior statute provides only
for a per diem which covec:sexpenses, article 6813f does not authorize
the Appropriations Act to change the fundamental characteristics of
membership on the board or colmnission; it merely directs that
reimbursement for expenses shall be computed and limited by the
Appropriations Act.
We are aware that the legislature amanded section 2 of article
6813f in 1983 in a manner vhich could suggest that members of 211
p. 1749
Eonorable Bob Bullock - Paye 5 (Jli-382)
state boards and commissi~~ns are entitled to compensatory per diem.
The prior version of section 2 provided that
Ji]f a mamber OL a stata board or coplission is
entitled by 1alL to per diem relating to the
member’s service on the board or commission, the
amount of per diem is the amount prescribed by the
General Appropriatons Act. (Emphasis added).
Acts 1981. 67th Leg., ch., 428, at 1840-41. Tbe amended version of
section 2 provides:
A mamber of a ztate board or commission is en-
titled to per -- diem relating to the member’s
service on the board or commission. The amount of
the per diem i.s the amount prescribed by the
General Appropriations Act. (Emphasis edded).
Acts 1983, 68th Leg., ch. 761. I1 at 4371.
The primary problem at issue here arises because article 68i3f
encompasses wo concepts: compensatory per diem and per diem vhich
represents reimbursement Car expenses. See Attorney General Opinions
JM-349 (1985); NW-388 -(l.SSl). Althoughthe term “per diem” has
historically encompassed both types of payments, very different
considerations apply to er’:h. Texas statutes often created one flat
rate payment vhich inclucladboth compensatory and reimbursement per
diem. Other statutes prcnllded only for reimbursement for expenses.
Some statutes expressly prohibited the receipt of compensation. In
creating the numerous state boards and commissions. however, the
legislature clearly inteniled that some would receive compensation,
i.e.,payment for services, whereas others would not. Article 6813f is
ambiguous because it fails;to adequately delineate between the tvo.
The 1983 amendment to section 2 must be read in context with the
rest of the statute. 11 cardinal rule of statutory construction
requires that new provisions in a statute be construed In harmony with
the statute as a vhole. Shipley v. Floydada Independent School
District, 250 S.W. 159, 160 (Tex. Coonn’nApp. 1923, judgmt adopted).
Section 3 of article 6813f provides:
Each law mz:lbing the amount of per diem
relating to mamlwrship on a state board or commis-
sion is-suspandwl to the extent of a conflict with
this Act. If the General Appropriations Act does
not prescribe the amount of per diem to which a
member of a state board or commission is entitled
by ,lav.the lav prescribing the amount of per diem
is not suspeuded by this Act. If a law imposes a
p. 1750
Eonorable Bob Bullock - Pags 6 (Jn - 382)
limit on the numt’erof days for vhich a member-of
a state board or-commission is entitled Co claim
per diem. the lir2.tis not suspended by this Act.
(Emphasis added).
This section expressly evidences the legislative intent that only laws
“Prescribing the amount of per diem” are suspended. The last sentence
also suggests thmts on per diem which do not relate to the
“amount” of per diem are ncmtsuspended.
A contrary interpretat.ionwould present problems because per dfem
which represents compensa,tion , in contrast to per diem which
represents reimbursement f’or expenses, can transform a nonlucrative
position into a lucrative mane. Willis v. Potts, 377 S.W.2d 622 (Tex.
1964); Attorney General Opinion JM-349. If a position is lucrative
and if it can be deemed 8’1 office, it vi11 constitute an “office of
emolument” for purposes of article XVI. section 40, of the Texas
Constitution, a provision which prohibits a person from holding tvo
offices of emolument at (the same time. Moreover, regardless of
vhether all state board and commission members hold “offices.” we
cannot believe that the legislature intended article 6813f, in
conjunction with an Apprcpriations Act provlslon. to transform all
state boards and commissi~ons into lucrative positions. The last
sentence of the rider supplw:tsthis cdnclusion as veil:
No employee paltl from funds appropriated by this
Act shall be pa:Ltlboth a salary and compensatory
per diem for c,oncurrent service as a state
employee and as a board or commission member.
Consequantly, ‘we respond to your second question in the negative.
If a specific statute, passed prior to article 6813f. is silent on the
issue of compensation, thr:board affected oas probably intended to be
non-lucrative. The board, members are, therefore, not entitled to
receive compensatory per diem under section 4(l) of article V of the
current Appropriations Act.
Your third question is
whether AttorneyrGeneral Opinion MU-388 is still
valid as it applies to article 6813f repealing any
statute which Ue.its the amount of travel reimbur-
sement to which a,board member is entitled.
Attorney General Opinion ‘?lW-388(1981) did not state that article
6813f repeals any statute vhich limits the amount of travel
reimbursement to which a hoard member is entitled. The opinion stated
that article 6813f was intended to supercede only conflicting
provisions regarding per diem. Nevertheless, the opinion did
p. 1751
Roaorable Bob Bullock - Page 7 (JIG382)
determine chat a prior stxcutory provision which expressly prohibited
receipt of expenses was superceded by article 6813f in conjunction
with the Appropriations Act rider then in effect. Attorney General
Opinion JM-349 narroued t,hie holding significantly by noting that
section 3 preempts only “lam prescribing the amount of per diem
relating to membership on ,a state board or cosneission.~ Accordingly,
Attorney General Opinion J&349 overruled W-388 to the extent of
conflict.
Your fourth question concerns the effect of article 6813f on a
statute enacted subsequent to article 6813f. As indicated at the
beginning of this opinion, a rider to a general approprlatlons bill
cannot amend. modify, or repeal general law. Accordingly, the basic
preemptive effect of article 6813f must depend primarily upon when It
was enacted. As a general rule, when two statutes deal with the sme
subject, the most rscentlg enacted statute prevsils. Consequently, a
statute which is passed subsequent to article 6813f and which concerns
the amount of per diem a particular board’s members arc entitled to
receive would create an rrcaption to article 6813f with regard to that
board or cosmission. Becu~sc section 4(l) of article V of the current
Appropriations Act provides for per diem “[a]6 authorized by Section 2
of article 6!13f,” it does not apply to par diem established by other
statutes, i.e., those erw:ted after article 6813f. The statute for
the partlcuxboard and zhe board’s approprfaticn would control.
Your fifth and sixth questions relate to the limit on relmburse-
ment for actual expenses created by sectiou 4(2) of article V. You
ask:
There appears to be a mistake in the citation
to the I.B.S. coda. The correct cite to the
provision relal:l.ngto state legislator’s travel
expenses auay from home is 26 U.S.C. Section
162(h)(1)(B)(ii). Does this make a difference?
May the per d,iamgiven to board and cosmission
members under article 6813f be legally tied to an
Internal Revemtr Service provision relating to
state legislator’s axpenses while avay from home?
If so, vhat Is t.hemaximum amount of expense that
could be allowed under this section?
The limitation on the,meals and lodging portion of reimbursement
per diem is created in a,rticlr V, section 4(2) by reference both to
topic and to specific twction In the Internal Revenue Code. The
section limits the amount of per diem allowed for meals and lodging to
“the maximum amount allowed as a deduction for state legislators while
avay from home during a legislative session as established pursuant to
the Internal Revenue Code, 26 U.S.C. section 162(1)(1)(B)(li).” The
,
p. 1752
Bonorible Bob Bullock - Png~ 8 (Jn- 382)
code section presently in effect which deals with the maximum amount
allowed as a business deliuction for state legislators is section
162(h), not section 162(1). The “error” in citation probably occurred
prior to the redesignatl~s of sections (h) and (i) in the code. See
26 U.S.C. 1162. Codification Note (referring to Pub. La. 97-34 and
97-35). Uo believe that the “error” is harmless because the provision
vhich is applicable is re;ldilydiscernible from the express reference
to the deduction allowad for state legislators and from the rider’s
legislative history. Commre Acts 1985, 69th Leg., ch. 980, art. V,
34; with Acts 1983, 68rh.i;cg..ch. 1095, art. V, 14 (held Ineffective
beca=of vagueness in Attorney General Opinion JM-152 (1984)).
You also ask whether the provision may be legally tied to an
Internal Revenue Code p::ovision. Attorney General Opinion -T-152
(1984) Indicated that cleiu:
, objective standards must guide such a per
diem rider to the Appro?:ciations Act. A variable provision which
refers to a potentially fluctuating standard may be viewed as an
impermlsslble delegation of certain powers. The legislature may
delegate the task of making rules and determining facts to which
existing law and 1egislatPve policy are to apply, but the legislature
must provide standards tcs guide the exercise of delegated powers and
duties. San Antonio Independent School District v. City of San
Antonio, 550 S.W.2d 262 &x. 1976).
The rider in question clearly ties the maximum amount allowed as
reimbursement for the meals and lodging portion of per diem tc the
maximum amount that state ‘Legislatorsmay deduct as a business e:cpense
for meals and lodging u&er section 162(h)(l)(B)(ll). This sectibn
allows deduction of
the amount generally allowable with respect to
such day to em?:Loyecs of the executive branch of
the federal gcvernment for par diem while away
from home but serving in the Unitcd States.
This amount is establishad as “a per diem allowance for travel inside
the contlnental United States at s rate not to exceed $50." See 5
U.S.C. 55702(a). This limit is further qualified by allxng
reimbursement
for the actual and necessary expenses of official
travel when thmz maximum per diem allovance vould
be less than these expenses. except that such
reimbursement shall not exceed $75 for each day in
a travel status vithin the continental United
States when the par diem otherwise allowable Is
determined to tie:
inadequate. . . .
5 U.S.C. 55702(c).
p. 1753
Aonornblc Bob Bullock - Pags 9 (m-382)
The import of section 4(2) of article V of the current Apptspria-
tions Act is to limit stnte board md cosm~isslonmembers in n vay that
ie related to the tax d~cductioa limit on state legisletors. con-
sequently, state board or.d commission members covered by article V.
section 4(2) are entitled to their actual expenses for men16 and
lodging, except that they rneynot receive reimbursement for more than
$75 for the meals and lodging portion of per diem. If section 5702(c)
of the federal net is amended within the next two years to allow a
lesser or greater amount of reimbursement, the board and commission
members may receive that amount so long as it does not exceed SlOO.
Thus, the rider allow only limited fluctuations vhich arc tied to
potential amendments to the federal act. The rider also provides an
absolute maximum on the amount. Consequently, the rider is not an
unconstitutional delegat:lon. _See Attorney General Opinion ?lW-17
(1979).
SUMRARY.
1. The scqc of article 6813f. V.T.C.S., Is
not limited to “boards and commissions” which are
created by statute; it may include boards and
commissions crt,stedpursuant to executive order,
to agency authwity , and to legislative reaolu-
don.
2. If a specific statute, passed prior to
article 6813f. is silent on the issue of compensa-
tion, the board’s members are not entitled to
receive compenoetory per diem under sectton 4(l)
of article V of the current Appropriations Act.
3. Attorney General Opinion MU-388 (1981)‘,as
it applies to Ithe effect of article 6813f. was
modified by Attorney Ganeral Opinion JM-349
(1985).
4. A 6tatut.e passed subsequent to article
6813f, and which concerns the amount of per diem a
particular boa::d’smembers are entitled to, would
create an exception to article 6813f with regard
to that boal,d or commission. Consequently,
section 4(l) of article V of the current
Appropriations Act would not apply.
5. The cil,ation “error” in section 4(2) of
article V Is h;l!rmless.
6. The par diem given to board or commlsslon
members under article 6813f may be tied to an
p. 1754
Eonornble Bob Bullock - Pngo 10 (JM-382)
Internal Revenue, Code provision. The present
msximum *mount t,h,atmay presently be reimbursed
for the meals and lodging portion of per diem is
$75.
Ll /iLh
Very truly your
A
JIM MATTOX
Attorney General of Texas
MARYXXLLXR
Rxecutive Assistant Attornqr General
ROBERT GRAY
Special Assistant Attorney General
RICX GILPIN
Chairmen, Opinion Committe~a
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVXD:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarnh Woelk
p. 1755