JIM MATTOX 

# The Attorney General of Texas
May 2, 1984

Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 51214752501 Telex 910/674-1367 Telecopier 5121475-0266 Mr. Raymon L. Bynum Commissionerof Education Texas EducationAgency 201 East 11th Street Austin, Texas 78701

714 Jackson, Suite 700 Mr. Bob E. Bradley
Dallas, TX. 75202-4506 ExecutiveDirector
2141742-6944 Texas StateBoard of Public Accountancy 1033La Posada, Suite 340 4624 Alberta Ave.. Suite 160 78752 El Paso. TX. 79905.2793 Austin, Texas

915/533-3464 Gentlemen: OpinionNo. ~~-152

Re: Limitation on payment of per diem tomembers of the Texas State Board of Education and Texas StateBoard of Public Accountancy

n 001 Texas. Suite 700 You ask whether your respectiveboard members' reimbursement for HOUS,DII, TX. 77002-3111 actual expenses, incurredwhile performing their official duties, is 71312255666 controlledby each board's individual statutory expense authorization
or by article 6813f, V.T.C.S., in conjunction with the current
606 Broadway, Suite 312 appropriationsact. Additionally,you askwhether the comptrollermay Lubbock, TX. 79401-3479 validly limit themeals and lodgingportion of per diem formembers of 6061747-5236 boards and commissions to $75 under article V, section 4 of the currentappropriationsact.

4309 N. Tenth, Suite S M~Allen~ TX~ 76501-1665 We conclude that members of boards and commissions are entitled

._._.... -.., .~ 5121662-4547 toper diem pursuant to article 6813f, in conjunctionwith the General Appropriations Acts. Acts 1983, 68th Leg., ch. 1095, art. V.

200 Main Plaza, Suite 400 However, the comptroller's limitation of reimbursement for actual
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 Atfirmative Action EmplOW’ when the appropriationsact-fails toprescribe the amount of per diem.
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.

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Sec. 2. A member of a state board or commissionis entitled to per diem relating to the member's service on the board or commission. The amount of theper diem is the amountprescribedby the GeneralAppropriationsAct.

Sec. 3. Each lawprescribingthe 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 AppropriationsAct does not prescribe the amount of per diem to which a member of a stateboard or commissionis entitledby law, the lawprescribing 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 isnot suspendedby thisAct.
The General AppropriationsAct purports to prescribe a limit on the amount of per diem formeals and lodging forboard 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 consistof actual expenses formeals 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 transportationplus the amounts of compensatory per diem specifically authorized in thisAct or as otherwiseauthorizedby thisAct.

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 ordinaryand necessarybusiness expenses." Article V, section 4, does not expressly refer to specificprovisions of the Internal Revenue Code. Because the Internal Revenue Code presently does not set a fixedmaximum daily amount generallyallowed
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 languageof section4 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 InternalRevenue Code and

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Mr. Bob E. Bradley Page 3 (JM-152)

to set some sort of maximumper diem. Senate Bill No. 179 of the Sixty-eighthLegislature,which became the currentappropriationsact, articleV, section 4, containedno limitationon actual expensesas it passed the Senate. The House version expresslyprovided that the per diem of board or commissionmembers shall consist of actual expenses for meals and lodging not to exceed $75 per day. Tapes of the ConferenceCommitteemeeting on the twoversions of section 4 indicate that committeemembers, by adding "I.R.S. language" as a limitation, had in mind a limitationof $75 per day. However, articleV, section 4 of the current appropriationsact 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

ArticleV, Section4 of the GeneralAppropriations Act, members of boards and commissionsengaged 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 allowedas a deduction for travelexpenses of state legislatorswhile away fromhome pursuant to 26 U.S.C. S162.

Travel Allowance Guide, 012, $1(a)(l), p. 38. The only express InternalRevenue Code referenceto a limit on theper diem thatmay be deductedas an ordinaryand necessarybusiness expense is the limit on the amount allowed as a deduction for state legislatorswhile away from home during legislative session. 26 U.S.C. 5162(i)(l)(~)(ii). Themaximum allowedunder the InternalRevenue Code as a deduction for state legislatorswhile away fromhome 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 fromhome

. . . . (Emphasisadded).
Id. The maximum per diem for federal employees travelingon 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

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appears logical and consistentwith 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 appropriationsact.

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 theper diem limitationunenforceable.

The legislature may delegate the task of making rules and determinations of fact to which existing law and legislativepolicy
are to apply,but the legislaturemust 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 conditionsupon which an existing law may operate,. and standardsmay be broadwhen conditionsmust be consideredwhich cannot convenientlybe investigatedby the legislature. HousingAuthority of City of Dallasv. Higginbotham,a. However, statutorydelegations of power may not be accomplishedby language so broad and vague that persons of ordinary intelligence must guess at their meaninn and differ as to their application. TexasAntiquitiesCommitteev. 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 accordancewith 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 federalper diem).

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r 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'dn.r.e.) (and cases cited therein);AttorneyGeneralOpinion 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 CooperativeAssociation, 618 S.W.2d at 130. Such provisions are usually utilized in circumstanceswhere sudden, drastic cost changesare expected. See, e.g., SanAntonio Independent School District, supra (electric utyeye; rates); Attorney General Opinion MW-17 (interest rates). such clauses cannot be arbitraryor standardless;theymust contaii limitations.

The District formula Texas Supreme Court in San Antonio Independent School

upheld a delegation authorizing use of a fuel adjustment 'in setting rates because no discretionwas left to the City Public ServiceBoard except the computationof chargespursuant to the rate formulaand the cost of fuel. The court favorablycitedAttorney General Opinion H-741 (1975) which determined the validity of a fluctuating rate schedulebecause the schedule provided an objective 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"interestrates,was constitutionalbecause it allowed limited fluctuationsand created an absolutemaximum rate of interest. The fluctuatineadiustment clause in CherokeeCountyElectricCooperativeAssociation,&, 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 articleV, section 4 of the current appropriations act was intended to adopt the $75 federal employeeper diem limit, that limit is a fluctuatingone, and the Texas legislaturehas provided the comptrollerwith no standards with which to apply the limit. We therefore conclude that articleV, section 4 lacks legislativelyexpressed standards, thus rendering the comptroller'sper diem limit of $75unenforceable.
Section 3 of article 6813f states, in part, that "[ilf the General AppropriationsAct does not prescribe the amount of per diem to which a member of a state board or commission is entitledby law, the law prescribing the amount of per diem is not suspendedby this Act." In this instance, as demonstrated, the General Appropriations Act fails to prescribe either a specificper 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 relatingto themember's serviceon theboard or commission.

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Mr. Bob E. Bradley Page 6 --..

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SUMMARY
ArticleV, section 4 of the currentappropriations 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 specificboards and commissions.

# I 1.
Very trulyyou] 

# . L-L-k

- JIM MATTOX AttorneyGeneral of Texas

TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICRARDS ExecutiveAssistantAttorneyGeneral
Preparedby Rick Gilpin AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman Jon Bible David Brooks SusanGarrison JimMoellinger Nancy Sutton

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