The opinion
The Attorney General of Texas
May 2, 1984
JIM MATTOX
Attorney General
Supreme Court Building Mr. Raymon L. Bynum Opinion No. ~~-152
P. 0. Box 12546 Commissioner of Education
Austin. TX. 76711. 2546
Texas Education Agency Re: Limitation on payment of
51214752501
Telex 910/674-1367 201 East 11th Street per diem to members of the
Telecopier 5121475-0266 Austin, Texas 78701 Texas State Board of Education
and Texas State Board of Public
Mr. Bob E. Bradley Accountancy
714 Jackson, Suite 700
Dallas, TX. 75202-4506
Executive Director
2141742-6944
Texas State Board of Public
Accountancy
1033 La Posada, Suite 340
4624 Alberta Ave.. Suite 160 Austin, Texas 78752
El Paso. TX. 79905.2793
915/533-3464
Gentlemen:
n
001 Texas. Suite 700 You ask whether your respective board members' reimbursement for
HOUS,DII, TX. 77002-3111 actual expenses, incurred while performing their official duties, is
71312255666 controlled by each board's individual statutory expense authorization
or by article 6813f, V.T.C.S., in conjunction with the current
606 Broadway, Suite 312 appropriations act. Additionally, you ask whether the comptroller may
Lubbock, TX. 79401-3479 validly limit the meals and lodging portion of per diem for members of
6061747-5236 boards and commissions to $75 under article V, section 4 of the
current appropriations act.
4309 N. Tenth, Suite S
._._....
-.., TX~ 76501-1665
M~Allen~ .~ We conclude that members of boards and commissions are entitled
5121662-4547 to per diem pursuant to article 6813f, in conjunction with the General
Appropriations Acts. Acts 1983, 68th Leg., ch. 1095, art. V.
However, the comptroller's limitation of reimbursement for actual
200 Main Plaza, Suite 400
sari Antonio, TX. 76205-2797
expenses for meals and lodging to $75 per day is invalid because no
5121225-4191 clear, objective standards guide the limiting provision of the
appropriations act. Article 6813f does not suspend specific laws
prescribing the amount of per diem for board and commission members
An Equal Opportunity1
when the appropriations act-fails to prescribe the amount of per diem.
Atfirmative Action EmplOW’
Article 6813f states:
Section 1. In this Act, ‘state board or
commission' means a board, colmnission,committee,
council, or other similar agency in the state
government that is composed of two or more
members.
p. 661
. c
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 2 (JM-152)
Sec. 2. A member of a state board or
commission is entitled to per diem relating to the
member's service on the board or commission. The
amount of the per diem is the amount prescribed by
the General Appropriations Act.
Sec. 3. Each law prescribing the amount of per
diem relating to membership on a state board or
commission is suspended 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 law, the law prescribing
the amount of per diem is not suspended by this
Act. If a law imposes a limit on the number of
days for which a member of a state board or
commission is entitled to claim per diem, the
limit is not suspended by this Act.
The General Appropriations Act purports to prescribe a limit on
the amount of per diem for meals and lodging for board and commission
members as follows:
As provided by authority of House Bill No. 957,
Acts of the Sixty-seventh Legislature, Regular
Session, the per diem of board or commission
members shall consist of actual expenses for meals
and lodging (not to exceed the maximum daily
amount allowed as of the first of January of that
year for federal income tax purposes as a
deduction for ordinary and necessary business
expenses) and transportation plus the amounts of
compensatory per diem specifically authorized in
this Act or as otherwise authorized by this Act.
Acts 1983. 68th Leg., ch. 1095, art. V, 54, p. 6201. The ceiling
created on the portion of per diem allowed for meals and lodging is
"the maximum daily amount allowed . . . for federal income tax
purposes as a deduction for ordinary and necessary business expenses."
Article V, section 4, does not expressly refer to specific provisions
of the Internal Revenue Code. Because the Internal Revenue Code
presently does not set a fixed maximum daily amount generally allowed
as a deduction for ordinary and necessary business expenses, see 26
U.S.C. 9162; Commissioner of Internal Revenue v. Flowers, 326 U.S.
465, 470 (1946), the language of section 4 is ambiguous.
Examination of the history of the current appropriations act
reveals that committee members intended the language of article V,
section 4 to tie the par diem limit to the Internal Revenue Code and
p. 662
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 3 (JM-152)
to set some sort of maximum per diem. Senate Bill No. 179 of the
Sixty-eighth Legislature, which became the current appropriations act,
article V, section 4, contained no limitation on actual expenses as it
passed the Senate. The House version expressly provided that the per
diem of board or commission members shall consist of actual expenses
for meals and lodging not to exceed $75 per day. Tapes of the
Conference Committee meeting on the two versions of section 4 indicate
that committee members, by adding "I.R.S. language" as a limitation,
had in mind a limitation of $75 per day. However, article V, section
4 of the current appropriations act does not, by its terms, impose a
$75 limit on per diem, nor does it clearly direct the comptroller to
adopt a $75 limit.
In light of the ambiguity of the limitation, the comptroller's
interpretation, limiting the meals and lodging portion of per diem,
appears reasonable. The comptroller's interpretation appears as
follo"s:
Pursuant to Tex. Rev. Civ. Stat. art. 6813f and
Article V, Section 4 of the General Appropriations
Act, members of boards and commissions engaged in
the active discharge of their official duties
shall receive:
1. For the year ending December 31, 1983,
actual expenses for meals and lodging not to
exceed $75 per day. For the years beginning
January 1, 1984, and January 1, 1985, actual
expenses for meals and lodging not to exceed the
maximum allowed as a deduction for travel expenses
of state legislators while away from home pursuant
to 26 U.S.C. S162.
Travel Allowance Guide, 012, $1(a)(l), p. 38. The only express
Internal Revenue Code reference to a limit on the per diem that may be
deducted as an ordinary and necessary business expense is the limit on
the amount allowed as a deduction for state legislators while away
from home during legislative session. 26 U.S.C. 5162(i)(l)(~)(ii).
The maximum allowed under the Internal Revenue Code as a deduction for
state legislators while away from home is
the amount generally allowable with respect to
such day to employees of the executive branch of
the Federal Government for per diem while away
from home . . . . (Emphasis added).
Id. The maximum per diem for federal employees traveling on official
business in the United States is $75. subject to change in subsequent
years. 5 U.S.C. 55702(c). Thus, the comptroller's interpretation
p. 663
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 4 (JM-152)
appears logical and consistent with legislative intent. However, the
comptroller's interpretation is not the only plausible, reasonable
interpretation of the legislative limit "not to exceed the maximum
daily amount allowed as of the first of January of that year for
federal income tax purposes as a deduction for ordinary and necessary
business expenses," especially in light of the fact that the Internal
Revenue Code itself sets no fixed, maximum per diem. Therefore, in
order to determine the validity of the comptroller's interpretation,
we must construe the language of article V, section 4 of the current
appropriations act.
As indicated, the legislature linked the per diem limitation to
"the maximum daily amount allowed as of the first of January of that
year for federal income tax purposes as a deduction for ordinary and
necessary business expensef3.u As demonstrated, this language is
ambiguous. We conclude that the lack of legislatively expressed
standards in article V, section 4 of the current appropriations act
renders the per diem limitation unenforceable.
The legislature may delegate the task of making rules and
determinations of fact to which existing law and legislative policy
are to apply, but the legislature must provide standards to guide the
exercise of delegated powers and duties. San Antonio Independent
School District v. City of San Antonio, 550 S.W.2d 262 (Tex. 1976);
Housing Authority of City of Dallas v. Higginbotham, 143 S.W.2d 79
(Tex. 1940). An administrative body may be given the authority to
ascertain the conditions upon which an existing law may operate,.and
standards may be broad when conditions must be considered which cannot
conveniently be investigated by the legislature. Housing Authority of
City of Dallas v. Higginbotham, a. However, statutory delegations
of power may not be accomplished by language so broad and vague that
persons of ordinary intelligence must guess at their meaninn and
differ as to their application. Texas Antiquities Committee v. Dallas
COUnty Community College District, 554 S.W.2d 924 (Tex. 1977);
Browning-Ferris, Inc. v. Texas Department of Health, 625 S.W.2d 764
(Tex. APP. - Austin, 1981, writ ref'd n.r.e.). The considerable
controversy and confusion generated by the limiting language in the
current appropriations act amply attest its failure to accomplish a
clear purpose and its failure to provide standards to guide its
enforcement.
Even if the comptroller were correct in construing article V,
section 4 of the current appropriations act to permit the per diem
limit to fluctuate in accordance with federal tax law, that provision
fails to provide sufficient standards to limit and guide coordination
with such federal statutes and regulations. See 5 U.S.C., 55702(c),
5707 (general services administration may set and change maximum
federal per diem).
p. 664
.
Mr. Baymon L. Bynum
Mr. Bob E. Bradley
Page 5 (JM-152)
Delegations allowing fluctuating standards in certain
circumstances have been recognized and approved in Texas. -- See San
Antonio Independent School District v. City of San Antonio, supra;
Cherokee County Electric Cooperative Association v. Public Utility
Commission of Texas, 618 S.W.2d 127 (Tex. Civ. App. - Austin 1981.
writ ref'd n.r.e.) (and cases cited therein); Attorney General Opinion
MW-17 (1979). The purpose of such provisions is to allow adjustments
in response to fluctuations in costs without the necessity for
full-scale determinations each time costs increase or decrease.
Cherokee County Electric Cooperative Association, 618 S.W.2d at 130.
Such provisions are usually utilized in circumstances where sudden,
drastic cost changes are expected. See, e.g., San Antonio Independent
School District, supra (electric utyeye; rates); Attorney General
Opinion MW-17 (interest rates). such clauses cannot be
arbitrary or standardless; they must contaii limitations.
The Texas Supreme Court in San Antonio Independent School
District upheld a delegation authorizing use of a fuel adjustment
formula 'in setting rates because no discretion was left to the City
Public Service Board except the computation of charges pursuant to the
rate formula and the cost of fuel. The court favorably cited Attorney
General Opinion H-741 (1975) which determined the validity of a
fluctuating rate schedule because the schedule provided an objective
P formula to guide computation of future rates. Similarly, Attorney
General Opinion MW-17 (1979) determined that an amendment to article
5069-1.02, V.T.C.S., which provided for "floating" interest rates, was
constitutional because it allowed limited fluctuations and created an
absolute maximum rate of interest. The fluctuatine adiustment clause
in Cherokee County Electric Cooperative Association, &, was upheld
in part because the Public Utility Commission set limits, and retail
rate adjustments pursuant to the formula were subject to commission
review and approval. Thus, even if the language in article V, section
4 of the current appropriations act was intended to adopt the $75
federal employee per diem limit, that limit is a fluctuating one, and
the Texas legislature has provided the comptroller with no standards
with which to apply the limit. We therefore conclude that article V,
section 4 lacks legislatively expressed standards, thus rendering the
comptroller's per diem limit of $75 unenforceable.
Section 3 of article 6813f states, in part, that "[ilf 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 law,
the law prescribing the amount of per diem is not suspended by this
Act." In this instance, as demonstrated, the General Appropriations
Act fails to prescribe either a specific per diem amount or standards
that can, from such an amount, be clearly determined. As a result,
article 6813f does not suspend individual statutes which authorize
reimbursement for board or commission members of actual expenses
r relating to the member's service on the board or commission.
p. 665
--..
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 6 (JM-152)
SUMMARY
Article V, section 4 of the current appropria-
tions act is ineffective in attempting to limit
the amount of per diem, for members of state
boards and commissions. Such per diem is to be
determined by the individual statutes or
appropriations act provisions which govern
specific boards and commissions.
.
L-L-k
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1.
Very truly you]
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 666