September 16, 1988

Mr.Vernon M.Arrell Commissioner Opinion No. JM-954

Texas Rehabilitation Commission Re: Per diem formembers 118E.Riverside Drive of the Board ofTexas ReAustin, Texas 78704-9982 habilitation Commission and its subordinate components (RQ-1330)

Dear Commissioner Arrell:

you ask about the **per** diem tobepaid tomembers of the Texas Rehabilitation Commission aswell as the per diem to be paid to members of several subordinate or related committees, councils, and advisory boards.

Article 6813f,V.T.C.S., isageneral provision dealing with per diem formembers of "stateboards or commissions.11 Article 6813f, which was originally enacted in 1981, provides:

Sec. 1. In thisAct, "state board or

commission11 means a board, commission, committee, council, or other similar agency inthe executive or judicial branch of state government that is composed of two or more members.

Sec. 2. (a)Amember of a state board or commission isentitled toper diem relating to the member's service on the board or commission. The amount of the per diem is the amount prescribed by the General Appropriations Act.
(b)This section does not apply to a member of the legislature who serves on a board or commission byvirtue of themember's position as a legislator.

Sec. 3. Each lawprescribing the amount ofper diem relating tomembership on a state board or commission is suspended to the

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extent of aconflict with this Act. If the General Appropriations Act does notprescribe the amount ofper diem towhich a **member** of a state board or commission isentitled by law, the lawprescribing the amount ofper diem is not suspended by thisAct. Ifa law imposes
a limit on the number of days forwhich a member of a stateboard or commission is entitled to claim per diem, the limit is not suspended by this Act.

See aener llv Attorney General JR-426 (19t6) Opinions JR-888 (1988);

;JM-382, JR-349 (1985);MW-388 (1981).

The current appropriations act sets out the following per diem allowances:

Sec. 4. PER DIEM OF BOARD OR COMMISSION MEMBERS. a.As authorized by Section 2 of Article 6813f, Texas Revised Civil Statutes Annotated, theper diem of state board and commission members shall consist of (1)compensatory per diem at $30per day: (2)actual expenses formeals and lodging not to exceed $75per day: and (3)transportation.

b. Ifa lawenacted after Article 6813f authorizes per diem formembers of aparticular state board or commission, but does not specify the amount of theper diem, then the . amount of theper diem shall be as listed in thepreceding paragraph.

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch. 78, art.V §4(a), at 820.

you first askhow much members of the board of the Rehabilitation Commission are entitled to receive for their expenses. Section 111.015 of theHuman Resources Code was amended in 1985 toprovide as follows:

(a)Boardmembers [ofthe Rehabilitation Commission] are entitled to reimbursement for actual andnecessary expenses incurred inthe discharge of their official duties and the compensatory per diem ~-authorized by the General Appropriations Act foreach day at an official meeting as authorized by the board.
(b)Amember of theboard who is disabled andwho, because of the disability, requires special aids or travel attendants isentitled

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to reimbursement forthe cost of the special aids or travel attendants.

The prior version of section 111.015 provided:

Boardmembers servewithout compensation but are entitled to reimbursement for actual and necessary expenses incurred in the discharge of their official duties.

Act6 1979, 66th Leg., ch. 842, at 2421.

.-. The Rehabilitation Commission and the Comptroller agree

that a statute passed after the enactment of article 6813f that sets per diem fora particular board prevails over article 6813f. However, theRehabilitation Commission and the Comptroller disagree about the effect of the 1985 amendments to section 111.015 of theHuman Resources Code. The Rehabilitation Commission takes the position that the original version of section 111.015,which authorized actual expenses, was superseded byarticle 6813f, but that the 1985 amendments reenacted the authorization for actual expenses andmade section 111.015 a later enactment than article 6813f. The Comptroller argues that the 1985 amendments do notmake section 111.015 a later enactment than 6813f for purposes of determining the amount of expenses to which board members are entitled. The Comptroller bases his argument on the fact that the 1985amendment left the words regarding actual expenses unchanged.

The Board of Irrigators raised essentially the same argument inAttorney General Opinion JR-888 (1988). In that opinion we considered a 1985 amendment to the statute governing per diem formembers of the Board of Irrigators. That amendment replaced language allowing $25 a day in compensatory per diem with a reference to the General Appropriations Act; but itretained the exact language of theprior version regarding actual expenses. We concluded that the 1985 amendment reenacted the authorization for actual expenses because the statutory reference to the appropriations act eliminated any argument that the legislature was unaware of the existence of the appropriations act and the conflict on the appropriations actprovisions and theprovisions of section 111.015. We concluded, therefore, that the statute governing the Board of Irrigators prevailed over article 6813f. The reasoning ofAttorney General Opinion JR-888 applies to the 1985 amendment to section 111.015 of the Human Resources Code. Therefore, we conclude that theprovision authorizing actual travel expenses for board members of the Rehabilitation Commission hasbeen reenacted and that theboard members are entitled to reimbursement foractual expenses.

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you next askwhether members of the Consumer Advisory Committee of the Rehabilitation Commission are entitled to actual expenses. The committee isestablished pursuant to section 111.016 of the Human Resources Code. Subsection (d) of section 111.016 provides that the committee members are entitled to reimbursement for actual and necessary expenses. Before 1985, section 111.016 permitted the Rehabilitation Commission to set up advisory committees. In 1985 it was amended to require theRehabilitation Commission to setup a consumer advisory committee, and the commission's general authority to setup advisory committees was deleted. Acts 1958, 69th Leg., ch. 603, at 2273. Before the 1985 amendment subsection (d)of section 111.016 provided:

The members of the advisory committee
servewithout compensation but are entitled to reimbursement for actual and necessary expenses incurred in attending the official meetings of the advisory committee.

Acts 1969, 61st Deg., ch. 40, 55(b), at 105;Acts 1971, 62d Leg., ch. 405, 554(2), at 1533. The 1985 amendment changed subsection (d)to read as follows:

The members of the consumer advisory committee are entitled to compensatory per diem authorized by theGeneral Appropriations Act for each day engaged inthe performance of their duties asdirected by the board and to reimbursement for actual and necessary expenses incurred in attending the official meetings of the consumer advisory committee.
Again, forthe reasons set out inAttorney General Opinion JM-888, we conclude that the 1985 amendment reenacted the provision regarding actual expenses and that themembers of the Consumer Advisory Committee are entitled to reimbursement for actual expenses.

your third question * whether Governor's Committee for Dis%ed Persons members of the
are entitled to receive reimbursement for actual expenses. The Governor's Committee for Disabled Persons was reestablished by an executive order issued onOctober 5, 1987. Executive Order No.WPC 87-16 (1987). The executive order provides in section 11-3:

APWINTED committee members shall serve without pay, but shall be entitled to actual and necessary expenses incurred in performance ofCOMMITTEE business, suchbusiness to include attendance at Committee meetings,

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telephone calls to conduct Committee business, and attendance at functions to officially represent the Committee, but such expenses shall be limited to funds available.

InAttorney General Opinion JM-382 (1985)we concluded that the per diem provisions of article 6813f,V.T.C.S., apply to boards and committees established by executive order. The governor has nopower to change existing law **merely** by issuing a proclamation. T.errell Wells Swimmina Pool **V.** Rodriw 182 S.W.2d 824, 827 (Tex.Civ.App. - SanAntonio 1944,wri.4 ref'd). Therefore, absent specific statutory authority todo so, the governor may not set aper diem for
aboard orcommittee that conflicts with the general law set out inarticle 6813f. Themembers of the Governor's Committee for Disabled Persons are therefore entitled to reimbursement for expenses subject to the limitations set out in the appropriations act.

.- You next askwhether members of the State Independent

Living Council are entitled to compensatory per diem and reimbursement forexpenses. Federal lawprovides that each state receiving federal funds for the provision of independent living services forthe disabled must set up a State Independent Living Council. 29 U.S.C. §796d(a)(l). See aenerallv 29U.S.C. §§ 796-796i. The federal statute sets out the qualifications for membership on the council and provides that the state agency designated under section 796d(a)(l) isresponsible forappointing themembers of the council. We assume that the Rehabilitation Commission is the agency designated in section 796d(a)(l). See Hum. Res. Code 65 111.051, 111.053; 40T.A.C.'§ 101.1; ch. 107 (independent living). In Attorney General Opinion JM-382 we concluded that the provisions of article 6813f apply to state committees created pursuant to agency authority. The Independent Living Council is apparently such an agency. See aenerally Hum. Res. Code g 111.053 (commissionmay adopt methods of administration foundnecessary by federal government); 5 111.054 (Rehabilitation Commission may comply with any requirements necessary to obtain federal funds). Absent specific authority, however, anagency may not enact a rule allowing reimbursement forexpenses inexcess of the amount authorized by article 6813f and the appropriations act. See Attorney General Opinion JM-457 (1986) (providing that agency rules may not conflict with statute). Therefore, members ,ofthe Independent Living Council are entitled to reimbursement for expenses asprovided **by** the appropriations act. We also conclude thatmembers of the Independent Living Council are not entitled to compensatory per diem in the absence ofa specific statute authorizing compensatory per diem. &S Attorney General Opinion JM-382 (1985).

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You also ask about per diem for members of the Deaf-Blind Advisory Committee, which was created by the commission pursuant to the commission's authority to establish programs to help deaf-blind multihandicapped individuals. Hum. Res. Code 5 113.001. Because there isno specific statutory authority governing the committee, article 6813f isapplicable. Thus, themembers are entitled to reimbursement for travel expenses asprovided in the appropriations act, and they are not entitled to compensatory per diem.

You also ask about per diem formembers of the Statewide Steering Committee, which was established pursuant to a Senate Concurrent Resolution. Acts 70th Leg., S.C.R. 135. It iscomposed of representatives ofvarious agencies, and itspurpose isto report to the legislature. The resolution issilent as to compensatory per diem and reimbursement for expenses. Because all themembers of the committee are apparently employees orvolunteer agents of specific state agencies, we conclude that the committee is inthe executive branch and that article 6813f isapplicable. See V.T.C.S art. 6813f, 5 1. (per diemprovisions of article 6813f not applicable to committees inthe legislative branch). Therefore, committee members are~entitled to reimbursement for 

### expenses in accordance with the provisions of the appropriations act, and they are not entitled to compensatory per diem.

Your final question.regards theMedical Consultation Committee. You provide the following information about the committee:

TheMedical Consultation Committee created by the Commission pursuant to Section 111.052, Human Resources Code, V.T.C.A., the membership ofwhich isappointed by the Commission-

. This Committee is Ezactitioners agroup of medical

that meet at various times during the year to provide consultation on medical matters to the Commission and as such
are reimbursed inaccordance with Art. 664.4, Professional Services Procurement Act, and the provisions of attachment G.

We assume that the.committee was created either pursuant to subsection (b)(6)of section 111.052 of the Human Resources Code, which permits the rehabilitation commission to "contractwith
. . . doctors . . .for training, physical restoration, transportation, and other rehabilitation services," or pursuant to the more general subsection (b)(3),which authorizes the Rehabilitation Commission to contract with individuals asnecessary to implement the -

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provisions of Chapter 111 of the Human Resources Code. Those provisions and your reference to the Professional Services Procurement Act suggest that the the physicians in question have contracted with theRehabilitation Commission toprovide professional services. If so, they are entitled topayment inaccordance with the terms of their contracts.

SUMMARY
Members of the board of the Texas Rehabilitation Commission are entitled to reimbursement for actual expenses incurred in the discharge of their duties. Members of the Consumer Advisory Committee of the Rehabilitation Commission are entitled to reimbursement for actual expenses incurred inattending official meetings. Members of the Governor's Committee forDisabled Persons
are entitled toper diem forexpenses subject to the limitations set out inthe appropriations act. Members of the State Independent Living Council, members of the Deaf-Blind Advisory Committee, and members of the Statewide Steering Committee are entitled to per diem for expenses subject to the limitations set out inthe appropriations act and are not entitled to compensatory per diem.

JIM MATTOX Attorney General of Texas

MARYEELLBR FirstAssistant Attorney General
LQUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by SarahWoelk Assistant Attorney General C

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