Eon. Ben Ramsey Opinion Bo. V-1525. 

Lieutenant Governor 

Capitol Station Re: Constltutlonallty,of proAustin, Texas posed legislation to relmburse the subsistence expenses of State employees 

while traveling on official 

business by a fixed per 

Dear Sir: diem allowance. 

Your request for an ~oplnlon oi this office 

the above subject reads in part as follows: 

"The Legislative Budget Board Is exasrlnlng State laws concerning offlolal travel by 

government empl 

3 

888, with the view of recommending to the 5 rd Legislature any modlflcatlons that seem to be desirable. 

"That examination has disclosed an element of 'hidden' expense in the present procedure of preparing and ohecklng detailed expense aooount claims, and has led to a search 

for sFmpler and more effeotlve ‘means of-reiaburslng travel expenses. One proposal Is to 

substitute a flat per dlem.subslstenoe allovante for the resent plan of paying aatual expenses up to $ 6.00 a day. 

"In arriving at the per diem rate for 

subslstenoe allowance, we think the legislature 

could reasonably be expected to select a figure 

that fairly represents the average daily costs 

for meals and lodging lnourred by state officials and employees while in travel status. 

"The use of a fixed, average ~rate~ln lieu 

of reimbursing actual expenses up to a maximum 

-might mean that in some Instances an employee 

would receive reimbursement slightly In excess 

of actual expenses. In other instances the employee might receive less than actual expenses. 

on 

I 
Hon. Ben Ramsey, Page 2 (V-1525) 

"1. Would the use of a flat, per diem 

rate for subslstenoe allowanoe be contraarJr~te 

Article III, Sections 44 and 53 of the Texas 

Constitution? 

"2 . Would Article 1, Section 3; Artlcle III, Section 51; Article XVI, Section 

6; or any other provision of the Texas Constitution, deny validity to the use of a 

per diem rste for relmburalng aubslstenae 

expense Incurred In official travel?" 

The pertinent provisions of the Texas Constltutlen are as follows: 

Article 1, Section 3: 

"All free men, when they form a s-81 

aompact, have equal rights, and no IME', 01 

set of men, Is entitled to exclusive asparate pub110 emoluments, 

aonslderatlon of public 

or privileges, bnt In 

services. 

Artlole III, Section $4: 

"The Legislature shall provide by laws 

for the compensation of all officers, semts, 

agents and publla contractors, not provided 

for In this Constitution, but shall not wnt 

e%trs compensation to any offloer, agent, servsnt. or pub110 contractors. after such pub110 

se*00 shall have Men performed or centrdct 

entered Into, for the performance of the same; 

nor grant, by appropriation or otherwlse, any 

amowt of money out of the T,masurf of the 

State, to any lndlvldual, on a claim, real or 

pretended, when the same shall not have been 

provided for Zyr pre-existing law; nor employ 

anj one In the name of the State, unless authorlzed by pre-existing law." 

Article III, Section 51: 

"The Legislature shall have no power to 

make sny grant or authorlse the making of any 

grsnt of pub110 moneys to any lndlvldual, association of Individuals, muulalpal or other corporation whatsoever; . . ." 
Hon. Ben Ramsey, Page 3 (V-1525) 

Artlale III, Section 53: 

"The Leglslaturs shall have no power to 

grant, or te authorize any county or nnnlcipal 

authority to grant, any extm compeasatiou, 

se4 or allowance to a public officer, ag4at, 

servant or asntraotor, after aervlae has been 

Pbndered, Dr a contract has been ernter4d Into, and performed In whole or In part . . .* 

Artlole XVI, Section 6: 

'Ho appropriation for private or Individual purposes shall b4 made. . . ." 

It la our understanding that the &pose! laglslatlon Is to be In ths Sons of a general law, leaving 

only rates of reimbursement and appropriated amcluntb for 

,travel to be set,forth In appropriation bills. :Ther4& 

fore, we do not deem It necessary to discuss the.necesslty for general leglslatlon as a prerequlslt4 to prevl.sions In an appropriation bill or the validity of 

approprlatlon bill "fiders' whloh alter the gsaeral law., 

In this oonnectlon your attention 1s Invited to Attorney 

General Opinion V-1254 (1951). 

The rule Is fundamental that the Legislature 

can eaaot all laws not prohibited by the Constitution, 

either In expr4ss terms or by necessary lmplloatlon. 

1 cooleg on Coastltutlonal Limltatloas (8th Ed.) 355; 

9 Tex. Jur. 444, 446. If the Constitution dues,not rastrain ths Leglslatur4 from providing for rsiabursement 

for travel expense In the proposed manner, than It Is 

wlthla the Leglslatursls power to enact sucha statute. 

s4ctions 44 and, 53 0s Arti III or th4 constitution prohlblt the Legislature from provldliig- "extra 

coapensatlen" or Lany extra compensitlon, r44 4r allowanae" to an officer or employee after pub110 s~4rvloe has 

been.rendered. We do sot understand that.the proposed 

. legislation Is intended to be retroactive, so aa. to all44 

officers and 4mployees additional reimbursement for subsistence expenses on travel. performed befors ths passage 

0s the statute. That being true, w4 do not thlnk.thew 

constitutional provisions have any applic.atlon, as they 

would relate only to allowances for servloes perfofMd 

prior to the legislative authorlsatlon. See Dallas 

County v. Lively, 106 Tex. 364, 167 S.W. 219 TTvlf4T, and 

dlsa4ntlng opinion by Mr. Justice Hawkins at p. 382; Jo&ma 
Eon. Ben Ramsey, Page 4 (V-1525) 

v, Veltmann 171 S-Y. 287 (Tex. Clv. App. 1914, error 

'~inmd 27 S 

urnor 71. Barnes, 19 S.W. 26 325 (T4x. Clv. App. 

.W.2d 532 (Tox.CORBI.A~P. 1930); 

Pierson v. Galveston county 131 s.w.2d 27 (T4x.civ.A~~. 

1939). We therefore hold &at the.relmburseme&t DFOdd&h by ths proposed statute and the apprcprlatl& pursuant the-to vi11 not be In contravention of these conatltntlonal provlslona, as It vi11 operate cm19 on futurs 

transaotlons between the State and Its officers and employees and will not affect prior a4rvlc4s. 

Section 51, Article III of the Cun~tltutlon 

prohibits the Legislature from.maklng any.gratit of public moneys to any Individual except for a pubIlc purpose. Section 3 of Article I condemns the granelng of 

"publlo 4m01wmntsU ~4xoept in consideration of public 

servlees . Per diem reimbursement would be lnvalld'lf 

oonstrabd as a gr&&iy or~donatlon of public funds to an 

lndlvidrul for 

ti 

rlvate purposes. In 

( 

i'.' c'l!i# O'S Dal- 

& 118 Tex. 2 , 6 s.u.28 738, 740 , t@3 court. 

~'A'. 

n 

. . . Without dlsousslng In d&all these 

plvvislons of the Constltutlon, it Is sufflolent to say each of them Is Intended to pr4- 

v4nt the ap&lcation of public funds to PI%- 

vat& purposesi In other words, to prevent the 

gratuitous grant of suoh funds to any Indlvldual, 

aorporatlon, or purpose whatsoever. This, llmltatlon upon tbn power of the Leglslatur4 Is a 

wholesome one and is plainly stated in unepuiroar1 terms. It la academic to say the I&Isl&urn has power te pass any law which Its asdcm snggests that la not forblddeti by some prcvlslons of the Constitution (ftederdl or state). 

If the pensloh provided for ln'thls acti ls~a 

gmatulty or dcnatlon to the beu4fLolary, It la 

clearly forbidden by the fundlllentalaw. On 

the other hand, If It 18 a part of the oompensation of such employee for 84rv104s rendered 

to the city, or If It be for a public purpos4, 

then olearly It Is a valid aercise of the laglslatlve power.n 

Unqnmstlonably, an official or employee who Is 

requl& to travel on official duty undertak4s that travel in the perform&nce of public services. Them can be 

no qpsstlon that reimbursement for actual and necessary 

exp4ns4s which the lndfvldual must Incur because of har- 
Hon. Ben Ramsey, Page 5 (V-1525) 

lng to travel on official business-is not a gratuity or 

a grant sr money for a private purpose. The per diem 

rate of reimbursement under the propsoed bill would be 

based oa the average daily expense vhlch orflcials and 

employ008 aould be reasenably expected to Incur for meals 

ma lodgings. In aotme instances the actual reasonable 

oost to the emplgee might be slightly less and In othexa 

it might be slightly more than the rate allowed, but the 

State's total output for subsistence vould' l pprcxlmate 

;Eg~l neoeasary expenditures vhlch its agents had 

. The question arises as to ðer any excess 

over the employee's actual expenditures would be a gratuity to the employee. 

In our oplnlon, suoh an excess would not be a 

gratuity. The provisions for reimbursements are a part 

of the terms on which the State contracts with lta empleyees ror their services In traveling OE official 

bim.lless . The employee by agreeing to accepk the fixed 

per diem rate relinquishes his right to relrborsement 

for a possible exoesa over that amount la his actual, 

reasonable expenses. This plaees the paymemt ef the 

fired rate on a valid contractual basis, regardless of 

whether the emplcyeels actual expenses In any one day 

ara more or less thaa the per diem rate. 

The passage 0r any piece of leglslatlon 1s 

preatmed to be preoeded by luvestlgatlon and.faet f'lndlng by the Legislature. This serves as a reasemable 

foundation for the subsequent lavr. Thus, In passing an 

enactment of this character the Legislature would be flxlng the amount. which would, according to ita flndlngs, 

reascaably compensate State employees for expenses lncurred vhlle traveling on State'8 business. The Leglslature Is prohibited from approprlatlng the' public money 

to other than strictly goverumental purposes by 'Sectioa 

6, Artlole,XVI of the Texas Constltutlon, but.thls prohibition Isnot applicable here It the Legislature rlxes 

an amount which Is reasonable repayment for expenses 

l rlalng when au oifioer or employee is avay rrem his homs 

station. 

It is within the constitutional authority 

of the Legislature to reimburse subsistence ex- 
Hoa. Ben Ramsey, Page 6 (V-1525) 

penses of State employees while traveling oa 

OrriGiai business bj a fixed pes diem allewanoe. 

Ponra very truly, 

APPROVED: 

Maw K. Wall 

Reviewing Assistant 

PRICEDANIEL 

Attoraey General 

Charles D. Mathews 

First Assistant 

JFJ:df 

i