JIM MATTOX 

Attorney General 

Supreme Court Suilding 

P. 0. BOX 12548 

Austin, TX. 76711. 2548 

512/475-2501 

Telex 9101874.1367 

Telecopier 512/4750266 

714 Jackson. Suite 700 

Dallas, TX. 75202.4506 

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El Paso, TX. 79905-2793 

9151533-3464 

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Hcxston, TX. 77002-3111 

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Lubbocft, TX. 79401.3479 

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San Antonio, TX. 78205.2797 

512/225-4191 

An EqUill Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

November 20, 1985 

Mr. Vernon M. Arrel.1 

Comissioner 

Opinion No.JM-374 

Texas Rehabilitat:ton Ccnnnission Ret Whether a member of the Texas 

118 E. Riverside Drive Planning Council for Developmental 

Austin, Texas 711704 Disabilities is entitled to compensatory per diem 

Dear Mr. Arrell: 

You ask whether members of the Texas Planning Council for 

Developmental Disabilities may be paid compensatory per diem for 

performing their official duties. 

Section 112.312 of the Texas Human Resources Code provides for 

the creation of a,25-member planning council. Subsections (c) and (d) 

of section 112.01:2 detail the 18 gubernatcrial appointees to the 

council. Section 112.015 of the Texans Human Resources Code provides 

for the expenses of these council members as follows: 

(a) C:ouncil members appointed under Section 

112.0121:~:) or (d) of this code serve without 

salary but are entitled to reimbursement for 

actual expenses incurred in performing their 

duties, including travel, meals, lodging, and 

telephone. long-distance charges. (Emphasis 

added). 

Your question arose because of article 6813f. V.T.C.S., and 

article V, section 4 of the 1986-87 General Appropriations Act. 

Article 6813f provides in full: 

Secthxl 1. In this Act, 'state board or 

commissi~on' means a board, commission, committee, 

council, or other similar agency in the state 

governmmt that is composed of two or more 

members. 

Sec. 12. A member of .a state board or commission is entitled to per diem relating to the 

mamber'e service on the board or commission. The 

amount cf the per diem is the amount prescribed by 

the General Appropriations Act. 

P. 1710 
Mr. Vernon M. Arrell - Page: 2 (m-374) 

Sec. 3. Each law prescribing the amount of per -- 

diem relating tc membership on a state board or 

commission is :%spended to the extent of a 

conflict with th:z&. If the General Appropriations Act does not orescribe 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 ,tmposes a limit on the number of 

days for which ,% member of a state board or 

commission is eatitled to claim per diem, the 

limit is not srspended by this Act. (Emphasis 

added). 

Article V, section 4 of the General Appropriations Act states: 

PER DIEM OF :3OARD OR COMMISSION MEMBERS. As 

authorized by Section 2 of Article 6813f, Texas 

Revised Civil Statutes Annotated, the per diem of 

state board and commission members shall consist 

of (1) the amounlz% of compensatory per diem at $30 

per day; (2) actual expenses for meals and lodging 

as aurhorized by this Act not to exceed the maximum amount allowed as a deduction for state legislators while awsy from home during a legislative 

session as established pursuant to the Internal 

Revenue Code 26 U.S.C. Section 162(i)(l)(B)(ii); 

and (3) transportation. In the event the maximum 

amount allowed ,313 a deduction for state legislators pursuant to the Internal Revenue Code as 

provided above is raised to an amount-above $100, 

the maximum amount of meals and lodging portion of 

the per diem paid to board and commission members 

under this section shall not exceed $100. 

The items of appropriation for per diem of 

board or cormsission members include compensatory 

per diem only. No employee paid from funds 

appropriated by this Act shall be paid both a 

salary and compensatory per diem for concurrent 

service as a state employee, and as a board or 

commission member. (Emphasis added). 

Acts 1985, 69th Leg., ch. 980, art. V. 54, at 7761. 

In Attorney General 0pinion JM-349 (1985), we concluded that a 

member of the State Proper,ty Tax Board is not entitled to receive then 

compensatory per diem pror:tded for in article V. section 4, because 

_. 

p. 1711 
Mr. Vernon M. Arrell - Page 3 (JM-374) 

section 5.01(i) of the Texas Tax Code states that "[al member of 

the board may not receiw compensation for his service on the 

board. . . .ll The opinion reasoned that article 6813f, V.T.C.S., was 

intended to preempt only "law prescribing the amount of per diem 

relating to membership m a state board or commission." Because 

section 5.01(i) "prohibim" rather than "prescribes" the payment of 

any amount that does not represent reimbursement for expenses, the 

opinion concluded that the compensation section of the rider based on 

article 6813f did not apply. Similar considerations apply to the case 

at hand. 

Section 112.015 specif,Les that "[clouncil members appointed under 

Section 112.012(c) or (d) of this code serve without salaq but are 

entitled to reimbursement for actual expenses. . . ." The flat rate 

compensatory per diem estxblished by subsection (1) of section 4 of 

article V of the General Appropriations Act clearly represents compensation for services rather than reimbursement for expenses. See 

Attorney General Opinion .JM-349 (1985). Although section 112.015 

prohibits the payment of 'salaries" rather than of "compensation," we 

believe that the import of ,:hr provision is to prohibit payments which 

represent something otner than reimbursement for expenses. 

Accordingly, the members oE the council who are appointed according to 

section 112.012(c) and (d'l are not entitled to the compensatory per 

diem provided for in subswtion (1) of sectiun 4 of article V of the 

current General Appropriations Act. 

SUMMARY 

Members of the Texas Planning Council for 

Developmental I~isabilities who are appointed 

pursuant to sectI.on 112.012(c) or (d) of the Texas 

Human Resources Code are not entitled to the 

compensatory per diem provided for in subsection 

(1) of section l+ of article V of the current 

General Appropria‘tions Act. 

Jx& 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attornq General 

ROBERT GRAY 

Special Assistant Attorney General 

p. 1712 
Mr. Vernon M. Arrell - Page 4 (JM-374) 

RICK GILPIN 

Chairman, Opinion Comittes 

Prepared by Jennifer Riggs 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

I 

p. 1713