The opinion
The Attorney General of Texas
November 20, 1985
JIM MATTOX
Attorney General
Supreme Court Suilding Mr. Vernon M. Arrel.1 Opinion No.JM-374
P. 0. BOX 12548 Comissioner
Austin, TX. 76711. 2548 Texas Rehabilitat:tonCcnnnission Ret Whether a member of the Texas
512/475-2501
118 E. Riverside Drive Planning Council for Developmental
Telex 9101874.1367
Telecopier 512/4750266
Austin, Texas 711704 Disabilities is entitled to com-
pensatory per diem
714 Jackson. Suite 700 Dear Mr. Arrell:
Dallas, TX. 75202.4506
214/742-6944
You ask whether members of the Texas Planning Council for
Developmental Disabilities may be paid compensatory per diem for
4824 Alberta Ave.. Suite 160 performing their official duties.
El Paso, TX. 79905-2793
9151533-3464
Section 112.312 of the Texas Human Resources Code provides for
the creation of a,25-member planning council. Subsections (c) and (d)
10ot Texas, Suite 700 of section 112.01:2 detail the 18 gubernatcrial appointees to the
Hcxston, TX. 77002-3111 council. Section 112.015 of the TexansHuman Resources Code provides
71312255886 for the expenses of these council members as follows:
(a) C:ouncil members appointed under Section
606 Broadway. Suite 312
Lubbocft, TX. 79401.3479
112.0121:~:)or (d) of this code serve without
8061747.5238 salary but are entitled to reimbursement for
actual expenses incurred in performing their
duties, including travel, meals, lodging, and
4309 N. Tenth. Suite 6
f.dc~tten. TX. 785wi6a5
telephone. long-distance charges. (Emphasis
512/662-4547 added).
Your question arose because of article 6813f. V.T.C.S., and
200 Main Pla2a, Suite 400 article V, section 4 of the 1986-87 General Appropriations Act.
San Antonio, TX. 78205.2797
Article 6813f provides in full:
512/225-4191
Secthxl 1. In this Act, 'state board or
An EqUill Opportunity/ commissi~on'means a board, commission, committee,
Affirmative Action Employer council, or other similar agency in the state
governmmt that is composed of two or more
members.
Sec. 12. A member of .a state board or com-
mission is entitled to per diem relating to the
mamber'e service on the board or commission. The
amount cf the per diem is the amount prescribed by
the General Appropriations Act.
P. 1710
Mr. Vernon M. Arrell - Page:2 (m-374) _.
Sec. 3. --
Each law prescribing the amount of per
diem relating tc membership on a state board or
commission is :%spended to the extent of a
conflict with th:z&. If the General Appropria-
tions Act does not orescribe the amount of per
diem to which a member of a state board -or
commission is entitled by law, the law prescribing
the amount of per diem is not suspended by this
Act. If a law ,tmposesa limit on the number of
days for which ,% member of a state board or
commission is eatitled to claim per diem, the
limit is not srspended by this Act. (Emphasis
added).
Article V, section 4 of the General Appropriations Act states:
PER DIEM OF :3OARD OR COMMISSION MEMBERS. As
authorized by Section 2 of Article 6813f, Texas
Revised Civil Statutes Annotated, the per diem of
state board and commission members shall consist
of (1) the amounlz%of compensatory per diem at $30
per day; (2) actual expenses for meals and lodging
as aurhorized by this Act not to exceed the maxi-
mum amount allowed as a deduction for state legis-
lators while awsy from home during a legislative
session as established pursuant to the Internal
Revenue Code 26 U.S.C. Section 162(i)(l)(B)(ii);
and (3) transportation. In the event the maximum
amount allowed ,313a deduction for state legis-
lators pursuant to the Internal Revenue Code as
provided above is raised to an amount-above $100,
the maximum amount of meals and lodging portion of
the per diem paid to board and commission members
under this section shall not exceed $100.
The items of appropriation for per diem of
board or cormsissionmembers include compensatory
per diem only. No employee paid from funds
appropriated by this Act shall be paid both a
salary and compensatory per diem for concurrent
service as a state employee, and as a board or
commission member. (Emphasis added).
Acts 1985, 69th Leg., ch. 980, art. V. 54, at 7761.
In Attorney General 0pinion JM-349 (1985), we concluded that a
member of the State Proper,tyTax Board is not entitled to receive then
compensatory per diem pror:tded for in article V. section 4, because
p. 1711
Mr. Vernon M. Arrell - Page 3 (JM-374)
section 5.01(i) of the Texas Tax Code states that "[al member of
the board may not receiw compensation for his service on the
board. . . .ll The opinion reasoned that article 6813f, V.T.C.S., was
intended to preempt only "law prescribing the amount of per diem
relating to membership m a state board or commission." Because
section 5.01(i) "prohibim" rather than "prescribes" the payment of
any amount that does not represent reimbursement for expenses, the
opinion concluded that the compensation section of the rider based on
article 6813f did not apply. Similar considerations apply to the case
at hand.
Section 112.015 specif,Lesthat "[clouncil members appointed under
Section 112.012(c) or (d) of this code serve without salaq but are
entitled to reimbursement for actual expenses. . . ." The flat rate
compensatory per diem estxblished by subsection (1) of section 4 of
article V of the General Appropriations Act clearly represents com-
pensation for services rather than reimbursement for expenses. See
Attorney General Opinion .JM-349 (1985). Although section 112.015
prohibits the payment of 'salaries" rather than of "compensation," we
believe that the import of ,:hrprovision is to prohibit payments which
represent something otner than reimbursement for expenses.
Accordingly, the members oE the council who are appointed according to
section 112.012(c) and (d'lare not entitled to the compensatory per
diem provided for in subswtion (1) of sectiun 4 of article V of the
current General Appropriations Act.
SUMMARY
Members of the Texas Planning Council for
Developmental I~isabilities who are appointed
pursuant to sectI.on112.012(c) or (d) of the Texas
Human Resources Code are not entitled to the
compensatory per diem provided for in subsection
(1) of section l+ of article V of the current
General Appropria‘tionsAct.
Jx&
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attornq General
ROBERT GRAY
Special Assistant Attorney General
p. 1712
Mr. Vernon M. Arrell - Page 4 (JM-374)
RICK GILPIN
Chairman, Opinion Comittes
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
I
p. 1713