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 

Commissioner of Education 

Texas Education Agency 

201 East 11th Street 

Austin, Texas 78701 

714 Jackson, Suite 700 

Mr. Bob E. Bradley 

Dallas, TX. 75202-4506 

Executive Director 

2141742-6944 Texas State Board of Public 

Accountancy 

1033 La Posada, Suite 340 

4624 Alberta Ave.. Suite 160 78752 

El Paso. TX. 79905.2793 

Austin, Texas 

915/533-3464 Gentlemen: 

Opinion No. ~~-152 

Re: Limitation on payment of 

per diem to members of the 

Texas State Board of Education 

and Texas State Board of Public 

Accountancy 

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 

._._.... M~Allen~ -.., TX~ 76501-1665 .~ 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. 

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 appropriations act-fails to prescribe 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. 

p. 661 
Mr. Raymon L. Bynum 

Mr. Bob E. Bradley 

Page 2 

. c 

(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) 

P 

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'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 

District 

formula 

Texas Supreme Court in San Antonio Independent School 

upheld a delegation authorizing use of a fuel adjustment 

'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 

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 

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 appropriations 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. 

I 

1. 

Very truly you] . L-L-k - 

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