DAN MORALES A-0-L 

flEWice of tfy Bttotnep @enetaI 

%tate of llCtxas 

May 2,199l 

Honorable John Sharp 

Comptroller of Public Accounts 

L.B.J. State office Bldg. 

Austin, Texas 78774 

Opinion No. DM-23 

Re: Whether the legislature may 

authorize expense payments to members 

of the legislature (RQ-73) 

Dear Mr. Sharp: 

You ask whether the legislature may “authorize expense payments to 

members of the legislature to cover the expenses incurred during a regular or 

special session as a supplement to the per diem and mileage mentioned in Article 

III, Section 24 of the Texas Constitution.” We conclude that the legislature may 

authorize such payments so long as the payments constitute reimbursement for 

“legislative expenses.” 

Article III, section 24, of the Texas Constitution provides: 

Members of the Legislature shall receive from the Public 

Treasury a salary of Six Hundred dollars ($600) per month. 

Each member shall also receive a per diem of Thirty Dollars 

($30) for each day during each Regular and Special Session of 

the Legislature. No Regular Session shall be of longer duration 

than one hundred and forty (140) days. 

In addition to the per diem the Members of each House 

shall be entitled to mileage at the same rate as prescribed by law 

for employees of the State of Texas. 

The language of article III, section 24, has been amended numerous times 

since the section’s original inclusion in the’ constitution in 1876. The provision for an 

annual salary in addition to mileage and per diem was first added by amendment in 

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1960. The salary amount was increased by amendment in 1975. The 1975 

amendment also changed the section’s provisions regarding mileage, which 

previously had provided a specific dollar amount for a member’s mileage “in going 

to and returning from the seat of government.” The 1975 amendment removed this 

limitation and provided simply that members were entitled to mileage as provided 

by law for state employees. 

TerrelZ v. King, 14 S.W.2d 786 (Tex. 1929), considered a statute creating a Tax 

Survey Committee composed in part of members of the legislature and providing for 

“compensation” of such committee members of $10 per day for each day actually 

served and for payment of their “expenses” for railroad fare, hotel, telegraph, 

telephone, postage, and express charges. The Terre11 court found that article 111, 

section 24, limited payment of compensation to legislators to that provided for in 

that section, and struck down the portion of the statute calling for the additional $10 

per day compensation. Id. at 791. Finding no constitutional limitation on payment 

of “legislative expenses,” however, the court upheld the portion of the statute 

providing for payment of “expenses,” noting that payable “legislative expenses” would 

include “expenses reasonably incurred in order to perform duties devolving on duly 

authorized committees of the Legislature.” Id at 792; see also Spears v. Sheppard, 

150 S.W.2d 769 (Tex. 1941) (article III, section 24, per diem is compensation for 

services required of member during term of office; entitlement to per diem does not 

depend on actual attendance at legislative sessions); Attorney General Opinion 

V-772 (1949) (lump sum payment of $10 per day for contigent expenses during 

session barred as prohibited additional compensation). 

Subsequent attorney general opinions consistently invoked a distinction 

between “legislative expenses” and “personal expenses.” See gener@y Tex. Const. art. 

III, 0 51 (prohibiting gifts of public funds). Expenses deemed “personal” were those 

not related to a legislator’s exercise of official duties, and-were not reimburseable. 

Thus, a blanket expense allowance to members without regard to the nature and 

amount of expense was held to be an unconstitutional “gratuity” to the extent “items 

claimed constituted personal business of the respective members.” Attorney 

General Opinion V-84 (1947) at 4. 

In addition to drawing a distinction between “legislative” and “personal” 

expenses, the authorities articulated a distinction between expenses incurred during 

a legislative session and those incurred between sessions. This distinction was based 

on the pre-1960 language of section 24 that had only allowed for per diem 

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compensation and mileage expenses incurred during or directly in connection with 

legislative sessions. These early opinions established a presumption that all expenses 

incurred between sessions were personal, regardless of the nature of the expense. 

The presumption that interim expenses were personal was first articulated in 

Attorney General Opinion O-3778 (1941). That opinion considered a senate 

resolution which allowed senators a blanket $50 per month allowance during an 

interim between sessions for defraying stenographic, telephone, telegraph, and 

postage expenses incurred in transacting state business incident to the office of 

senator. The opinion followed the rule that under the constitution, “personal 

expenses are not allowable, whereas legislative expenses are.” Id. at 9. It further 

concluded that while expenses of members during a session were presumptively 

payable “legislative expenses,” expenses incurred by a member between sessions 

working at his own discretion’and not under extraordinary assignment from the 

legislature were presumptively “personal expenses.” The source of the presumption 

was the language of article III, section 24, which provided for legislative per diem 

only when the legislature was in session. The opinion accordingly found the 

resolution in question purporting to establish an additional blanket allowance for 

interim expenses, constitutionally invalid. See also Attorney General Opinions 

WW-563 (1959) (provision invalid to extent it authorizes state payment of expenses 

incurred by members working neither as a part of legislature in session nor under 

legislative assignment); WW-177 (1957) (expenses for members’ stationery, supplies, 

postage, and telephone and telegraph calls during interim not “legislative expenses”; 

thus provision for payment thereof invalid); WW-148 (1957) (provision that interim 

telephone expenses must be for “official calls” insufficient to render resolution 

providing payment of such expenses constitutional); WW-131 (1957) (members’ 

telephone expenses during interim not payable); V-211 (1947) (payment of 

member’s interim newspaper subscription would be for personal expense and thus 

unconstitutional). 

With the 1960 and 1975 amendments, compensation and mileage were no 

longer tied to legislative sessions. This change marked an acknowledgement that 

the demands of legislative duty frequently extend between sessions. Construing the 

1960 salary amendment to recognize “that official duties of members of the 

Legislature are performed throughout the year and are not limited to duties 

performed while the Legislature is in session,” Attorney General Opinion M-104 

(1967) concluded that interim secretarial, telephone, and other office expenses of 

members might therefore be considered “legislative expenses” which could be paid 

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for with state funds. Thus, as of adoption of the 1960 and 1975 amendments, the 

constitution no longer supported a presumption that interim expenses were 

personal. The constitutionality of a particular expense is now determined solely by 

reference to the nature of the expense and the relation of that expense to a 

legislator’s official duties. The time in which the expense is incurred no longer 

appears to be a determining factor. What constitutes a nonreimbursable personal 

expense, as opposed to a reimbursable legislative expense, is a determination that 

must be made on a case-by-case basis. 

Reimbursement of mileage expenses is dealt with separately in section 24. 

There are no cases or attorney general opinions yet construing the effect of the 1975 

mileage amendment. In our opinion, the current mileage provisions of article III, 

section 24, contemplate that a member is entitled to the mileage expenses for all 

travel necessary for attendance at legislative’sessions or in carrying out other official 

business of the legislature. Compare V.T.C.S. art. 6823a (state employees entitled 

to travel expenses incurred “in the active discharge of their duties”). We do not 

believe that the 1975 mileage provisions altered the basic distinction previously 

developed between personal and legislative expenses. If a trip is not necessitated 

by official legislative business, mileage expenses incurred are personal and not 

payable with state funds. 

In response to your question, we conclude that the constitution does not 

restrict payment of the “legislative expenses” of legislators incurred during a 

legislative session. Although the 1960 and 1975 amendments to article III, section 

24, dispensed with the presumption that interim expenses were personal expenses, 

the amendment did not alter the conclusion that the constitution prohibits payment 

of personal expenses or compensation to members of the legislature in addition to 

the amounts provided for in that section. This continues to be the standard by 

which the propriety of expense reimbursement for legislators is measured. 

You have not asked us to consider the constitutionality of any particular 

expense item or appropriation for reimbursement of expenses, and we have not 

attempted to do so in this opinion. We have, however, set forth the constitutional 

parameters within which legislative appropriations for legislators’ expenses should 

be construed. 

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SUMMARY 

Article III, section 24, of the Texas Constitution does not 

limit payment of “legislative expenses” to members of the 

legislature. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

b&4RY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Madeleine B. Johnson & William Walker 

Assistant Attorneys General 

p. 107