JIM MATTOX Attorney General

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An EqUill Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas
November 20, 1985

Mr. VernonM. Arrel.1 Comissioner OpinionNo.JM-374
Texas Rehabilitat:ton Ccnnnission Ret Whether a member of theTexas 118E. RiversideDrive Planning Council forDevelopmental Austin,Texas 711704 Disabilities is entitled to compensatoryper 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 officialduties. Section 112.312 of the Texas Human Resources Code provides for the creationof a,25-memberplanning council. Subsections (c)and (d) of section 112.01:2detail the 18 gubernatcrial appointees to the council. Section 112.015of the TexansHuman Resources Code provides for the expensesof these councilmembers as follows:

(a) C:ouncilmembers 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 6813fprovides 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 amountprescribedby theGeneralAppropriationsAct.

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Sec. 3. Each lawprescribing the amount of per

-- diem relating tc membership on a state board or commission is :%spended to the extent of a conflictwith th:z&. If the GeneralAppropriations Act does not orescribe the amount of per diem to which a member of a state board -or commission is entitledby law, the law prescribing the amount of per diem is not suspended by this Act. If a law ,tmposesa 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). ArticleV, section 4 of the GeneralAppropriationsAct states:

PER DIEM OF :3OARDOR 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 compensatoryper diem at $30 per day; (2)actual expenses formeals and lodging as aurhorizedby thisAct 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, themaximum amount ofmeals and lodgingportion of the per diem paid to board and commissionmembers under this section shallnot 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 commissionmember. (Emphasisadded).
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:tdedfor in article V. section 4, because _.

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section 5.01(i) of the Texas Tax Code states that "[al member of theboard may not receiw compensation for his service on the board.
. . .llThe 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 compensationsection of the riderbased on article 6813f did not apply. Similar considerationsapply to the case at hand. Section 112.015 specif,Les that "[clouncilmembers appointedunder 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 AppropriationsAct 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 prohibitpaymentswhich represent something otner than reimbursement for expenses. Accordingly,themembers oE the councilwho are appointedaccording to section 112.012(c) and (d'lare not entitled to the compensatory per diem provided for in subswtion (1) of sectiun 4 of articleV of the currentGeneralAppropriationsAct. 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 GeneralAppropria‘tions Act.

Jx&

JIM MATTOX AttorneyGeneral of Texas
MARY KELLER ExecutiveAssistantAttornq General ROBERT GRAY SpecialAssistantAttorneyGeneral

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RICK GILPIN Chairman,Opinion Comittes Preparedby JenniferRiggs AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory JimMoellinger JenniferRiggs Nancy Sutton SarahWoelk

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