September 16, 1988 

Mr. Vernon M. Arrell 

Commissioner 

Opinion No. JM-954 

Texas Rehabilitation Commission Re: Per diem for members 

118 E. Riverside Drive of the Board of Texas ReAustin, Texas 78704-9982 habilitation Commission 

and its subordinate components (RQ-1330) 

Dear Commissioner Arrell: 

you ask about the per diem to be paid to members of the 

Texas Rehabilitation Commission as well 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., is a general provision dealing 

with per diem for members of "state boards or commissions.11 

Article 6813f, which was originally enacted in 1981, 

provides: 

Sec. 1. In this Act, "state board or 

commission11 means a board, commission, 

committee, council, or other similar agency 

in the executive or judicial branch of state 

government that is composed of two or more 

members. 

Sec. 2. (a) A member of a state board or 

commission is entitled to per 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 by virtue of the member's 

position as a legislator. 

Sec. 3. Each law prescribing the amount 

of per diem relating to membership on a state 

board or commission is suspended to the 

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Mr. Vernon M. Arrell - Page 2 (JM-954) 

extent of a conflict with this Act. If the 

General Appropriations Act does not prescribe 

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 imposes 

a limit on the number of days for which a 

member of a state board 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, the per diem of state board and 

commission members shall consist of (1) compensatory per diem at $30 per day: (2) actual 

expenses for meals and lodging not to exceed 

$75 per day: and (3) transportation. 

b. If a law enacted after Article 6813f 

authorizes per diem for members of a particular state board or commission, but does not 

specify the amount of the per diem, then the . 

amount of the per diem shall be as listed in 

the preceding paragraph. 

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., 

ch. 78, art. V § 4(a), at 820. 

you first ask how much members of the board of the 

Rehabilitation Commission are entitled to receive for their 

expenses. Section 111.015 of the Human Resources Code was 

amended in 1985 to provide as follows: 

(a) Board members [of the Rehabilitation 

Commission] are entitled to reimbursement for 

actual and necessary expenses incurred in the 

discharge of their official duties and the 

compensatory per diem ~-authorized by the 

General Appropriations Act for each day at an 

official meeting as authorized by the board. 

(b) A member of the board who is disabled 

and who, because of the disability, requires 

special aids or travel attendants is entitled 

p. 4830 
Mr. Vernon M. Arrell - Page 3 (JM-954) 

to reimbursement for the cost of the special 

aids or travel attendants. 

The prior version of section 111.015 provided: 

Board members serve without 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 for a particular board prevails over 

article 6813f. However, the Rehabilitation Commission and 

the Comptroller disagree about the effect of the 1985 

amendments to section 111.015 of the Human Resources Code. 

The Rehabilitation Commission takes the position that the 

original version of section 111.015, which authorized actual 

expenses, was superseded by article 6813f, but that the 1985 

amendments reenacted the authorization for actual expenses 

and made section 111.015 a later enactment than article 

6813f. The Comptroller argues that the 1985 amendments do 

not make 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 1985 amendment left the words 

regarding actual expenses unchanged. 

The Board of Irrigators raised essentially the same 

argument in Attorney General Opinion JR-888 (1988). In that 

opinion we considered a 1985 amendment to the statute 

governing per diem for members 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 it retained the exact language of 

the prior 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 

act provisions and the provisions of section 111.015. We 

concluded, therefore, that the statute governing the Board 

of Irrigators prevailed over article 6813f. The reasoning 

of Attorney General Opinion JR-888 applies to the 1985 

amendment to section 111.015 of the Human Resources Code. 

Therefore, we conclude that the provision authorizing actual 

travel expenses for board members of the Rehabilitation 

Commission has been reenacted and that the board members are 

entitled to reimbursement for actual expenses. 

p. 4831 
Mr. Vernon M. Arrell - Page 4 (m-954) 

you next ask whether members of the Consumer Advisory 

Committee of the Rehabilitation Commission are entitled to 

actual expenses. The committee is established 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 the Rehabilitation Commission to set up a 

consumer advisory committee, and the commission's general 

authority to set up 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 

serve without 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, 5 5(b), at 105; Acts 1971, 62d 

Leg., ch. 405, 5 54(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 the General Appropriations 

Act for each day engaged in the performance 

of their duties as directed by the board and 

to reimbursement for actual and necessary 

expenses incurred in attending the official 

meetings of the consumer advisory committee. 

Again, for the reasons set out in Attorney General Opinion 

JM-888, we conclude that the 1985 amendment reenacted the 

provision regarding actual expenses and that the members 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 on October 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 of COMMITTEE business, such business to 

include attendance at Committee meetings, 

p. 4832 
Mr. Vernon M. Arrell - Page 5 (JR-954) 

telephone calls to conduct Committee business, and attendance at functions to officially represent the Committee, but such 

expenses shall be limited to funds available. 

In Attorney 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 no power 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. - San Antonio 

1944, wri.4 ref'd). Therefore, absent specific statutory 

authority to do so, the governor may not set a per diem for 

a board or committee that conflicts with the general law set 

out in article 6813f. The members 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 ask whether members of the State Independent 

Living Council are entitled to compensatory per diem and 

reimbursement for expenses. Federal law provides that each 

state receiving federal funds for the provision of independent living services for the disabled must set up a State 

Independent Living Council. 29 U.S.C. § 796d(a)(l). See 

aenerallv 29 U.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) is responsible for appointing the members 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; 40 T.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 (commission may adopt 

methods of administration found necessary by federal government); 5 111.054 (Rehabilitation Commission may comply with 

any requirements necessary to obtain federal funds). Absent 

specific authority, however, an agency may not enact a rule 

allowing reimbursement for expenses in excess 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 ,of the Independent Living Council are entitled to 

reimbursement for expenses as provided by the appropriations 

act. We also conclude that members of the Independent 

Living Council are not entitled to compensatory per diem in 

the absence of a specific statute authorizing compensatory 

per diem. &S Attorney General Opinion JM-382 (1985). 

p. 4833 
Mr. Vernon M. Arrell - Page 6 (JM-954) 

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 is no 

specific statutory authority governing the committee, 

article 6813f is applicable. Thus, the members are entitled 

to reimbursement for travel expenses as provided in the 

appropriations act, and they are not entitled to 

compensatory per diem. 

You also ask about per diem for members of the Statewide Steering Committee, which was established pursuant to a 

Senate Concurrent Resolution. Acts 70th Leg., S.C.R. 135. 

It is composed of representatives of various agencies, and 

its purpose is to report to the legislature. The resolution 

is silent as to compensatory per diem and reimbursement for 

expenses. Because all the members of the committee are 

apparently employees or volunteer agents of specific state 

agencies, we conclude that the committee is in the executive 

branch and that article 6813f is applicable. See V.T.C.S 

art. 6813f, 5 1. (per diem provisions of article 6813f not 

applicable to committees in the 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 the Medical Consultation 

Committee. You provide the following information about the 

committee: 

The Medical Consultation Committee created by 

the Commission pursuant to Section 111.052, 

Human Resources Code, V.T.C.A., the membership of which is appointed by the Commission- 

. This Committee is 

Ezactitioners 

a group of medical 

that meet at various times 

during the year to provide consultation on 

medical matters to the Commission and as such 

are reimbursed in accordance 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 "contract with . . . 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 as necessary to implement the 

- 

p- 4834 
Mr. Vernon M. Arrell - Page 7 (JM-954) 

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 the Rehabilitation Commission 

to provide professional services. If so, they are entitled 

to payment in accordance 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 

in attending official meetings. Members of 

the Governor's Committee for Disabled Persons 

are entitled to per diem for expenses subject 

to the limitations set out in the 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 in the appropriations act 

and are not entitled to compensatory per 

diem. 

JIM MATTOX 

Attorney General of Texas 

MARYEELLBR 

First Assistant Attorney General 

LQU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

C Assistant Attorney General 

p. 4835