JIM MAlTOX 

Attorney General 

Supreme Court BulldIng 

P. 0. Box 12545 

Austin. TX. 78711-2545 

512U75-2501 

T**x em57c1357 

TalecoDlsr 5121475.0286 

714 J8ckson. Suite 700 

Dallas. TX. 752024505 

214n42B944 

4S24 Alberta Ave.. Suite 160 

El Pare. TX. 799012793 

915/5333464 

. Texas. Sui1e 7DO 

tio~ston. TX. 770029111 

713/22365S5 

SO6 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

SO5/747.5238 

4309 N. Tenth. Suits B 

McAllen. TX. 78501-1685 

5126524547 

200 Main Plaza, Suite 400 

San Antonio. TX. 782052797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

.kugust 31, 1985 

Hr. Ron Pattarson 

Executive Director 

State Property Tax P#oard 

9501 North 18-35 

Austin. Texan 78161 

Opinion No. JM-349 

Rt: Whether members of the 

State Property Tax Board are 

entitled to compensatory per 

diem 

Dear tlr. Pattenon: 

You have requested our opinloa regarding the payment of 

compensatory per di.em to members of the State Property Tax Board. 

Article 6813f, V.T.C.S., last amended In 1983, provides in Its 

entirety: 

Sectlc’n 1. In this Act, “state board or 

comlssic~n” means a board, commission, committee, 

council, IDr other similar agency In the state 

governmet t that Is composed of two or more 

members. 

kec. 2:. A member of a State board or 

conmlssicn Is entltled to per diem relating to the 

mamber’m a’errrick on the board or commission. The 

amount of the per diem Is the amount prescribed by 

the General Appropriations Act. 

3ec. 3. Each law prescribing the amount of per 

diem rel~ltlng to membership on a state board or 

comlasian la auspeaded to the extent of a 

conflict with this Act. If the GtntXti 

Appropriations Act does not prescribe the amount 

of per dj,em to which a member of a state board or 

commissloa ICI entitled by law, the law prescribing 

the amount of per diem ia not suspended by this 

Act. If 1~ la+ lmpoeea a limit m.the number of 

dayr for vhlch a member of a state board or 

comlasloo is entitled to claim per diem. the 

llmlt la tmt suspended by this Act. 

p. 1593 
. I 

Ur. Ron Patterson - Page 2 

The General Appropriations Act for the 1983-85 bieoolum established a 

per diem allowance consisting of 

actual expenses for meals and lodging (not to 

exceed the maximun daily amount allowed as of the 

first of January of that year for federal income 

tax purposes as a deduction for ordinary and 

necessary busineta expenses) and transportation 

plus the amountf~ of compensatory w diem 

apecif ically authorized in this Act or as 

otherwise authorized by this Act. 

Acts. 1983, 68th Leg., cll., 1095, art. V. $4. The uew General 

Appropriations Act. which became effective on September 1. 1985, 

substitutes for the foregoluf; the following language: 

Sec. 4. PER DIW OF BOARD OR COMMISSION 

MaBERS . As auttlcrized by Section 2 of Article 

6813f. Texas Revirred Civil Statutes Annotated, the 

per diem of state board and commlasion members 

shall consist of (1) the amounts of compensatory 

per diem at $30 I’er day; (2) actual expenses for 

meals and lodging as authorized by this Act not to 

exceed the maximum amount allowed as a deduction 

for state legislators while away from home during 

a legislative session as established pursuant to 

the Internal Rewnue Code 26 D.S.C. Section 

162 (I) (1) (B) (Ii) ; and (3) transportation. In the 

event the maximuu amount alloved as a deduction 

for state legiale~tora 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 commlssi.ca 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 atr.te employee and as a board or 

commission member,. 

Acts 1985, 69th Leg., ch. !)80. art. V. 14. The principal difference 

betveen the two riders la that, for 1985-87. the rate of “compensatory 

per diem” Is specified in the rider at e particular amount, i.e., $30 

per day. as well as in the :tine item for compensatory per diem in each 

agency’s appropriation. 1.n the prior act. only the latter was 

p. 1594 
Mr. Ron Pattereou - Paga 3 

included. In both Instance@; hwever, as vell aa hlatorlcally, the 

kind of flat rate compmaatory par diem l atabllehed by the 

Appropriatlonr Act does not repressat reimbursement for l xpenses but 

compenaatiou for e.ervicer. Thlo office reached a similar conclualou 

in Attorney General Opinion W-388 (1981): 

We believe the vocding of article 6813f and this 

appropriations acj: provlrlon plainly reflects a 

legislative intent to adopt, for at least the tvo 

year biennium. a more expanelve definition of per 

diem which embraces both actual expenaee for meals 

and lodging ,a& a flxally rate paymant. 

When a per diem which represents compensation, in contrast to per 

diem which repreeentr reimbursement for expenses. is provided by law 

for a particular office, that office may be held to be "lucrative," 

Wlllla v. Potta. 377 S.W.2d 622 (Tex. 1964). and thus, an "office of 

emolument" for purposes of article 16. aectloo 40 of the Texas 

Constitution, the dual offi':e holding provlaion. As a result, If a 

member of the State Property Tax Board is entitled to compensatory per 

diem, he could be prohibLt:ed from holding any other office of 

emolument. Compare Whiteheed v. Julian, 476 S.W.2d 844 (Tex. 1972); 

Willis v. Potts. suprcr. 

In our opinion, hovever, a,mamber of the Board is not entitled to 

compensatory per diem. Sect,Lon 5.01(i) of the Tax Code provides: 

A member of the bo;i:rd may not receive compensation 

for his service ou the board but is entitled to 

reimbursement for actual and neceaaary expenses. 

as provided by 1eg:lslative appropriation. incurred 

vhlle on travel etatus in the performance of 

official duties. 

Section 3 of article 6813f, the statute vhich furnishes the basis for 

the per diem rider, preempts every "law prescribing the amount of per 

diem relating to membership on a state board or c~laslon." Section 

5.01(l) lo not, hovever. such a lav. Rather tban "preacrlbing" an 

amount of per diem. that proMsion Prohibits the payment of any amount 

that does not represent reldburaement for expenses. Numerous other 

statutes apeclflcally prohlb:t the payment of compensation to board or 

coxrniraion members, and to the extent they do so, they are not 

preempted by article 6813f. See, e.g., Education Code, C161.026, 

85.15. This conclusion Is bcAatered by the deletion of a key sentence 

from the original bill vhlch became article 6813f. Rouse Bill 401 

Initially provided: 

p. 1595 
ns. Ron Pattereon - Psgc 4 

If a law prohit,its a per diem to be paid to 6 

member of a etate board or CO666isSiOU. the 

prohibition is smpended by this Act. 

We believe that the dlrletion of this language from the final bill 

a6 enacted indicates (r largislative intent in article 6813f not to 

modify the provisions of prlrticular statutes vhich prohibit payment of 

compensation. Accordingly, a member of the State Property Tax Board 

1s not entitled to receiw compensatory per diem for service on the 

Board. Since we ansver ycur first question in the negative, we need 

not address your other quetztione. 

SUMMARY 

A member of the State Property Tax Board is not 

entitled to recct:lve compensatory per diem, a6 

provided in article V, section 4 of the current 

General Approprirltions Act, for service on the 

Board. 

JIM MATTOX 

Attorney Geueral of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

SpeCid ASSiStant Attorney Gmeral 

RICK CILPIR 

Chairman, Opinion Committee 

Prepared by Rick Cilpln 

ASsiSt.¶nt Attorney General 

p. 1596 
, 

Mr. Ron P6tterson - P6ge 5 

APPROVED: 

OPINION COMMITTEE 

Rick Cilpin. Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Hoellinger 

Jennifer Riggs 

Nancy Sutton 

p. 1597