Arrs~xiw ,&TEXAS
October 6, 1965

Honorable Robert S. Calvert Opinion No. C-522 Comptroller **of** Public Accounts Austin, Texas Re: Whether a rooming house qualifies as a commercial lodging establishment as that term is used in **Section** 15 **of** Article V of the General Appropriation Act of 1965 and related quesDear Mr. Calvert: tions
.

Your request for an opinion on the above subject matter asks the following questions, in view of the provisions of paragraph (a) of Section 15 of the General Appropriation Act of the 59th Legislature:

"1. Does a rooming house qualify as a commercial establishment? "2
. Does an apartment qualify as a commercial establishment?

. . . "3. If you hold that the renting of an apartment follows within the definition of 'commerciallodging',what would two or more State employees renting and living in the **same** apartment be entitled to for reimbursement on a per diem basis? "4. At what rate of per **diem** would an employee.'be

entitled to who secures lodging at YMCA, YWCA, and membership clubs? "5. Would a statement or billing received as a result of the use of a credit card from a company other than a commercial hotel, motel, or other coannercial

lodging establishment, entitle the employee to qualify under the $12.00 per day per diem rate?" -2457--.

.~; .



### Hon.. RobertS. Cslvert,page,2 (Ce5221

Cslvert,

,, This officein Opinion,~NoVo. C-472defined.a,"comer&aP
.,.~eatabliahxaantt' aa~followa: : "In i&w of ~the foq*goiig,, .it iS ciarop+lon 

### that thb phrase ‘comnerciai 

### .h'otelr mot,el, or other cokaarciallodgingeatabliahment,~ refers 

### to.thoae' **puqtia,** 

### firm,'corporations;, aaaocfati~ona

**or** 

### ., -'eatabliahmatitar

engagsdin thebuaineaaof 

### furnishinglodging to the publicgazketally for pay, '*D .'I : .~,' ~, ,' **~A8**

### p&nted'.outin .the abo+o$inion, UArtlcle4596, Raviaod~.Civil~Statutea.of Texaa, 1925,.deftnea **a** 

### hotel or inn as *&place'

whereItha,buaineae is.,@ furnish**f&d** 

### and lodgin4or of&d; to 'all

who,kp~l~and.

wy theragor.“’ 

### (EnWaai? added.) 

### ,100 l .uch,

### ra8trlction.I8 placedon the.tem Wnmercia1 

### lodging aatabli9hmaRt"; The onlyroQaireuunti ,ofthe latterare that > tli~.~mfurriiali 

### lodg,ing to, the.vublicasnerallv**for** 

### MY I4 0 '. (Nmphaaia

added,) ",Applyingthe,above.definitfon to questions1, 2,. and 4, rooming 

### houaea,'apartmanta, andYMCAla~andYWCA's failwithin tha .definition

of "cokercial loQq.ing~establishment". Conae- **.q~~tlf,c~any State**  

### employaewho mat remainout **of** 

### town in order **~to~perfbrm** 

### his,

dutiesfor eithera .day or,aeveralmonthsand .,+18&a .to.

stay at one ,of

the above,:18

entltled'to~

twelvedollars **(S&2) pur**  **‘ diem.** 



### .Quaation

number4 doaa',not

reveal the typamembership

. . cl&~ 

### to'whichyou ark referring. 

### '.If meaberahip~is~both limited and la d pre~aquiaitefor.usingtha facilitiea,of the club, its is,not’ 

### R,,Comaaklaleatabliahmnt~opento the. Q&UC even though it my 'require

iemReration.frm, tha individual memberwho stays overnight.'

'Forexample,a 'social fraternity

wouldbe a ambertih,ip 

### .clubwhichw.ould.furniah -lodging,

to its itinerant'mcmbera for pay'buttiould'not be a 

### coma~oiel establishment yithin the

**~. above**  **hef**inition. :. 

### .Ina&wer.to queatiofi nun&et 3,~

paragraph (e)of '.

. .'...'&ioR~

i5 of.~Aiticle,'Vof~ the generalAppropriatfou~,Act of the 59th **LugUlatutr.** 

### ptoyldea : .~

.,

.‘~~, 

### 'IRatea bf ,allcwance.:

Nach employeetraveling .o@**#t$te** 

### buainaaa. insidethebouudRri& **of me** Hon. Robert S. Calvert, page 3 (C-522 )

State of Texas shall be allowed, in ,lieuof actual expenses incurred for meals and lodging, a flat per **diem** rate not to exceed twe~&ve dollars ($12) provided there is attached to his expense account when submitted a 'Paid'bill or receipt from a commercial hotel, motel, or other commercial lodging establishment for his lodging, but provided further that if such receipt is not submitted, the flat per diem rate shall not exceed seven dollars ($7)." Section 15 of Article V places no limitation on the actual cost of lodging: it merely requires that the State employee has paid for his lodging and such payment is evidenced by a "Paid"bill or receipt from a commercialhotel, motel, or other commercial lodging establishment in order to qualify for the twelve dollar ($12)per diem rate. When two or **more** State employees are renting and living in the same apartment, each employee's expense for lodging is that portionwhich he pays of the total bill. Upon the submissionby the State employee of a "Paid"bill or receipt, or copy thereof, indicating **that** the employee was one of the tenants, he will qualify for the twelve dollar ($12)per diem rate for the days covered by the receipt. Article 155533, Vernon's Texas Penal Code, defines credit card as follows:

"Sec. 3. The term 'creditcard' as used herein means an identification card, plate, coupon, book, device or number issued to a person, association of persons, or corporation by a person,orbusiness organizationwhich permits such person, associations of persona, or corporations to attempt to obtain, or obtain, or pay for items of value or services of any type, irrespective of whether such items of value or services can be obtained or paid for bv a credit card issuedby the person or business organization offering the items of value or services or by another person or entity engaged in providing credit facilities for said person or business organization." (Emphasisadded.) -2459-Ron. Robert S. Calvert, page 4 (C-522 )

The credit card represents a contract between the credit card holder and the issuer **of** the card. Once the credit card holder has used the card, he becomes liable to the issuing company. Texaco, Inc. v. Goldstein, 229 **N.Y.S.2d** 51, 34 Misc.26 751 (MunicipalCourt of New York, 1962). Similarly, the issuing company becomes liable to the ,party who accepted the card. As between the credit card holder and the party accepting the credit card, the holder is relieved Of further liability and **for** purposes **of** Bection 15 of Article V the accepting party has been "paid" thus qualifying the Gtate employee for the twelve dollar ($12) per diem rate upon the presentation of the statement or billing received from the company issuing the credit card.
SUMMARY Apartments, boarding houses, YWCA's, and YEA"8 are commercial establishments and State **employees** are entitled to the twelve dollar ($12) per diem rate upon presentation of a "Paid"bill or receipt from one of the above. A membership club, that is limited as to its membership, and membership is a prerequisite for using the facili-
-,. ties of the club, is not a "commercial lodging establishment" as that term is used in Section 15 of Article V. TWO or more State employees may occupy the same apartment and qualify for the twelve dollar ($12) per diem rate upon the presentation of a "Paid"bill or receipt, or copy thereof,which indicates that they were tenants. A statement or billing received as a result of the use of a credit card from a company other than a commercial hotel, motel, or other commercial lodging establishment entitles the employee to qualify under the twelve dollar ($12) per diem rate **for** the days covered by the bill or statement.

**-24&J-** tI-Ion, Rbbert S. Calvert, page 5 (C-522 )

Very truly yours, WAGGONER **CARR** Attorney General

Wade Anderson Assistant
WA:ra APPROVED: OPINION COMMITTEE
W. v. Geppert, Chairman Malcolm Quick Dougless Chilton Linward Shivers APPROVED FOR THE ATTORNBY GENERAL By: T. B, Wright