- - 

THEATT~ICNEY GENERAL 

OFTEXAS 

Hon. WI W. Glass, Chaillnan Opinion NO. ~-563 

contingent Expense Colmllittee 

House of Representa~ivss 

Awtin, Texas 

Dear Mr; Glass: 

Re: Conetitutionality of House 

Bill Iio. 89, 56th Leg., relating to the payment of 

Legislative expenses due to 

official telephone calls 

made during the interim by 

members of the Legislature. 

Yo-,J have requested an opinion on the constitutionality of House 

fill 85; of the 56th Legislature, which reads in part as follows: 

"Sec,tlon I. The following words, texms or phrases 

when need in t&ix Act have the meanings ascribed to them 

12 this ee;tion. 

"(a) 'Legislativexpense' means that expense insident y;o i&e workings of the Legislature as an actual 

law-making body, as a whole, as the Legislature itself, 

when in session; through a special committee delegated 

by k&e Legislature while in se&ion to work on a legisIatlve m&tes between sessions; through personnel emplop3 to close ma,ttern after adJournmentj through emp;opeas maintained between sessions for the care of the 

legislative hallis or for maintenance of a central offioe 

or -,l"earirAg home i for legislative matters between sessions; 

31" -31-w;@ &s elect:ve members acting, during the Interim, 

in their offiial zapacity aa Members of the Legislature 

in the perfoxmsnce of duties necessary to the proper condiet cf +2x business of the Legislature. 

"tb) 'Official telephone calls' means all telephone cells made by &mbers of the Legislature pertaining 

to state affairs with which the Legislature is or may be 

C0~,$CTE33.. 

“Sec. 2. The Committee on ContingeM Expenses of 

each, House of tie Legislature shall appropriate from 

its Ccntingent Expense Fund whatever sums shall be considere?. necessary by the Committee to pay official telephone calls during Interim periods and such calls shall be 

considered Iwgislative expenses as defined herein, Said 
- - 

Hon. W. W. Glass, page 2 (~~-563) 

Committees may set reasonable limits on such legislative expense." 

Section 24, Article III, Constitution of Texas, provides aa follows: 

"Members of the Legialature‘shall receive from the 

public Treasury a per diem of not exceeding Twenty-five 

($25.00) Dollars par day for the first I.20 days only of 

each cession of the legislature. 

"In addition to the per diem the members of each House 

shall be entitled to mileage in going to and returning from 

the seat of government, which mileage shall not exceed $2.50 

for every 25 miles, the distance to be computed by the 

nearest and moat direct route of travel, from a table of 

distances prepared by the Comptroller, to each county seat 

now or hereafter to be established; no member to be entitled 

to mileage for any extra session that may be called within 

one day after the adjournment of a regular or called session." 

The Supreme Court of Texas In Spears v. Sheppard, 136 Tex. 277, 

150 s.w.2d 769 (l94l), in construing the provisions of Section 24 of 

Article III of the Constitution of Texas, held: 

I . " * Moreover, the compensation provided for in this 

Article of the Constitution Covers and includes all services 

that may be required of the member during his entire term of 

office, including the time served by him on committees between sessions of the Legislature. . . ." 

LikewIse, it ie stated in h'alker v. Baker, 145 Tex. 121, 196 S.W. 

2d 324 (1946): 

” 

* 0 0 Thie per diem multiplied by the number of days 

the Legislature remains in regular or called seaeion, is the 

entire compensation a member is entitled to receive, and for 

ithe must attend the legislative sessions and perform all 

the other duties of his office each bienniun. . . ." 

Attorney Generals' Opinions WW-148 (1957), WU-131 (1957), and 

O-3778 (1941) conclude that expenses incurred a8 a result of the actlvities of the Legislature may properly be divided Into two categories 

which are "legislative" and "personal." The Legislature is authorized 

to provide for the payment of "legislative" expense, but cannot authorize 

the payment of "personal" expense by the uae of public moneys. The dlfference between legislative and personal expense has been defined as follows: 

"It is believed that the matter of Legislative and 

personal expense may be reationallzed as follows. Legis - 

lative expense is that incident to the workings of the 
r - 

Hon. W. W. Glase, page 3 (~~-563) 

Legislature as an actual law-making body, as a whole, 

as the Legislature itself, when in session; through a 

special committee delegated by the Legislature while in 

session to work on a legislative matter between sessions; 

through personnel employed to close matters after 

adjournment; or through employee6 maintained between 

sessions for the care of the legislative halls or for 

maintenance of a central office or clearing house for 

legislative matters between sessions. These expenses 

are for the mutual benefit of all members--for the Leglslature itself. 

"Personal expense, on the other hand, is that incurred, or which may be incurred, by a Member between 

sessions working under his own will, in his own discretion and as a matter of individual enterprise--not as 

a part of the Legislature in session or under extraordinary assignment from the body between sessions." Attorney 

Generals' Opinions WW-148, WW-131, and o-3778. 

In House Bill 89 submitted with your request, the term “legislative expense" has been defined, and that definition includes expenses 

"through the elective members' acting, during the interim, in their 

official capacity as members of the Legislature in the performance of 

duties necessary to the proper conduct of the business of the Leglslature." This definition of the legislative expense would not only 

authorize a member of the Legislature to be paid expenses incurred as : 

a result of extraordinary assignment from the Legislature between 

sessions, but would also authorize payment of expenses which may'be 

incurred by the member working under his own will in his own discretion,~ 

and not pursuant to any particular assigoment of the Legislaimre. To 

this extent it would authorize the payment of personal expenses and 

would thereby constitute an increase in the compensation of the member 

of the Legislature in excess of that permitted in Section 24 of Article 

III of the Constitution of Texas. It is therefore our opinion that 

House Bill 89, as written, au.thorizes the expenditure of public moneys 

in excess of the amount limited by Section 24 of Article III of the 

Constitution of Texas and is therefore unconstitutional. 

SUMMARY 

Insofar as House Bill 89 authorizes the payment of 

expenses incident to the workings of the Legislature and 

through special committees delegated by the Legislature 

and through personnel employed to close matters after 

adjournment and through employees maintained between aesaions for the care of the legislative halls or for maintenance of a central office or clearing house for legislative matters between sessions and the payment of 
eon. W. w. Glass, pge 4 (w-563) 

telephozie exp&nses incidetit thereto 'House Sill'89 

is oonstitu~ional; that portion Of House siu8g' 

which &uthorizes the payment of expeneea which may 

be itiourred by a msmber~betweeh sessions working, 

not as a pert of the Legislature in eessioti or 

under an aesigtment Pram the Legislature between 

eeeaione, is in violation of Section 24, Article III, 

Constitution of Texas. 

Yours very truly, 

WIU WIISON 

Attorney General of Texas 

AFPRovND: 

OPImIOIJ COMuITTgE 

Gee. P. Blackbnm, Chainnan 

J. Milton Richarason 

L. P. Iollar 

Leonard Passmore 

Wm. It. Hemphill 

George C. Reed 

REVlEUEDFORlSEATTORSYGENE%L 

BY: W. V. Geppert