JIM MAlTOX Attorney General

Supreme CourtBulldIng P.0. Box12545 Austin.TX. 78711-2545 512U75-2501 T**x em57c1357 TalecoDlsr 5121475.0286

714J8ckson. Suite700 Dallas.TX. 752024505 214n42B944

4S24Alberta Ave..Suite160 ElPare. TX.799012793 915/5333464

.Texas. Sui1e7DO tio~ston. TX. 770029111 713/22365S5

SO6Broadway, Suite312 Lubbock,TX. 79401-3479 SO5/747.5238

4309N.Tenth.Suits B McAllen.TX. 78501-1685 5126524547

200Main Plaza,Suite400 SanAntonio.TX. 782052797 51212254191

AnEqualOpportunity/ Affirmative Action Employer 

# TheAttorney General ofTexas

.kugust 31, 1985

Hr. RonPattarson Executive Director State Property TaxP#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
Deartlr. Pattenon:
You have requested our opinloa regarding the payment of compensatory per di.emto membersof the State Property TaxBoard.
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, IDrother similar agency In the state governmett 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’ma’errrick on the board or commission. The amountof the per diem Is the amountprescribed by the General Appropriations Act.
3ec. 3. Each lawprescribing the amount ofper 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,emto which amemberof a state board or commissloa ICIentitled by law, the lawprescribing 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. RonPatterson - 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 maximundaily amountallowed 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 BOARDOR COMMISSION MaBERS

. As auttlcrized by Section 2 of Article 6813f. Texas RevirredCivil 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 maximumamount allowed as a deduction for state legislators while awayfrom homeduring 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 maximuuamount alloved as a deduction for state legiale~tora pursuant to the Internal Revenue Code as provided above is raised to an amountabove $100, the maximumamountof 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 tworiders 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. 1594Mr. RonPattereou - Paga 3

included. In both Instance@; hwever, as vell aa hlatorlcally, the kind of flat rate compmaatory par dieml 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):

Webelieve 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 diemwhich embraces both actual expenaee for meals and lodging ,a& a flxally rate paymant. Whenaper diemwhich represents compensation, in contrast to per diem which repreeentr reimbursement for expenses. is provided by law for a particular office, that office maybe 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 memberof the State Property TaxBoard 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 TaxCodeprovides:

Amember of the bo;i:rdmaynot 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 akey sentence from the original bill vhlch became article 6813f. Rouse Bill 401 Initially provided:

p. 1595ns. RonPattereon - 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.
Webelieve 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 memberof 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, weneed not address your other quetztione.
SUMMARY
Amemberof the State Property TaxBoard 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
TOMGREEN First Assistant Attorney General
DAVIDR. 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: OPINIONCOMMITTEE
Rick Cilpin. Chairman Colin Carl SusanGarrison TonyGuillory JimHoellinger Jennifer Riggs NancySutton

p. 1597