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### THEATT~ICNEY GENERAL OFTEXAS

Hon. WI W. Glass, Chaillnan Opinion NO. 

### ~-563 contingent

ExpenseColmllittee House of Representa~ivss Awtin, Texas

Dear Mr; Glass: Re: Conetitutionality of House Bill Iio.

89, 

### 56thLeg.,

relating to the paymentof Legislative

expenses

due to official

telephone

calls made during the interim by members of the Legislature. Yo-,J have requested

an opinionon 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&ixAct have the meanings ascribedto them 12 this ee;tion. "(a) 'Legislative

xpense'

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 specialcommittee delegated by k&e Legislature

while in se&ion to work on a legisIatlve m&tes betweensessions; through

personnel

emplop3 to closema,ttern after adJournmentj through

emp;opeas

maintained

betweensessions

for the care of the legislative

hallis or for maintenance

of a central

offioe or -,l"earirAg

home i for legislative

matters betweensessions; 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 cellsmade 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 Expensesof each, House of tie Legislature shall appropriate

from its Ccntingent

Expense

Fund whateversums shall be considere?.

necessary

by the Committee

to pay official

telephone calls during Interim periodsand such calls shall be considered

Iwgislative

expenses

as defined

herein, Said- -

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

Committees

may set reasonable limitson such legislativeexpense." Section 24, Article III, Constitution of Texas,provides

aa follows: "Members of the Legialature‘shall receivefrom the public Treasury

a per diem of not exceeding Twenty-five ($25.00)

Dollarspar day for the first I.20 days only of each cessionof the legislature.
"In additionto the per diem the members of each House shall be entitledto mileage in going to and returning from the seat of government, which mileage shall not exceed $2.50 for every 25 miles, the distanceto be computed by the nearestand moat direct route of travel, from a table of distances

prepared

by the Comptroller, to each county seat now or hereafterto be established; no member to be entitled to mileage for any extra session thatmay be calledwithin one day after the adjournment of a regularor called session." The SupremeCourt 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 Coversand includes all services thatmay be required of the member during his entire term of office, including

the time servedby him on committeesbetween 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 regularor called seaeion,is the entire compensation a member is entitled to receive,

and for ithe must attend the legislative sessions

and performall 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 paymentof "legislative" expense,

but cannotauthorize the paymentof "personal" expense

by the uae of public moneys. The dlfference between legislative and personal

expense

has been definedas follows:
"It is believedthat the matter of Legislative and personal

expense may be reationallzed as follows. Legis

- lativeexpense is that incident to the workings

of ther -

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 specialcommittee

delegated

by the Legislature

while in session to work on a legislative matter betweensessions; through

personnel

employedto closematters after adjournment;

or through

employee6

maintained

between sessions

for the care of the legislative halls or for maintenance

of a centraloffice or clearing house for legislative

matters betweensessions. These expenses are for the mutual benefitof 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

workingunder his own will, in his own discretionand as a matter of individual enterprise--not

as a part of the Legislature in session

or under extraordinary assignment

from the body betweensessions." Attorney Generals'

Opinions

WW-148,

WW-131, and o-3778.
In House Bill 89 submitted with your request,the term “legislativeexpense"

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 dutiesnecessary

to the proper conductof the business of the Leglslature." This definition of the legislative

expense

would not only authorize

a member of the Legislature to be paid expensesincurred as : a result of extraordinary assignment

from the Legislature between sessions,

but would also authorize paymentof expenses which may'be incurred

by the member workingunder his own will in his own discretion,~ and not pursuant to any particular assigoment

of the Legislaimre. To this extent it would authorize the paymentof 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 paymentof expensesincident

to the workings

of the Legislature

and throughspecialcommittees delegated

by the Legislature and through

personnel

employedto closematters after adjournment

and through

employees

maintained

betweenaesaions for the care of the legislative halls or for maintenance

of a centraloffice or clearing house for legislative matters betweensessions and the paymentofeon. W. w. Glass, pge 4 (w-563)

telephozie

exp&nses incidetit

thereto 'House

Sill'89 is oonstitu~ional;

that portionOf House siu8g' which &uthorizes

the paymentof 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

Generalof 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