## THE 

# ATTORNEY GENERAL OF TEXAS ,~-‘,---- ---.. ,

Hon. Ben Ramsey Lieutenant Governor of Texas Hon. Waggoner Carr, Speaker House of Representatives Capitol Station Austin, Texas Opinion No. WW-7 Re: Social Security participation by Senators and Representatives

Dear Sirs: Your letter requesting our opinion in reference to the captioned matter reads as follows:

“The Texas Legislature authorized ‘State Employees’, as defined inthe Law, to participate inOldpage and Survivor~s Insurance (Social Security). Specific reference is made to Section lo,Subsection (c) of House Bill No. ,666, Acts of the 54th Legislature, Regular Session, 1955, which became effective September 6, 1955, and which provides in part as follows:

“‘(c) The term “State Employee” inaddition, to its usual meaning shall include elective and appointive officials of the State, but shall not include those persons rendering services in positions, the compensation for which is on a fee basis.

. .’ “The Senators and Representatives are, no,.doubt,

‘elective officials of the State’

. As elective officials, they could be included for Social Security participation. The question arises, however, as to their eligibility for participation because of the method of their compensation since ‘positions, the compensation for which is on afee basis’ are excluded. Ifthey are not within the exclusion, it is assumed that they must participate inSocial Security along with all other elective officials.” Article III, Section 24 of the Texas Constitution provides, in part, as follows:

“Members of the Legislature shall receive from the public treasury a per diem of not exceeding TwentyHon. Ben Ramsey Hon. Waggoner. Carr, page 2 (WW-7)

five ($25) Dollars per day for the first one hundred twenty (120) days only of each session of the Legislature.” The Supreme Court ofTennessee in construing a similar provision of the Tennessee Constitu,tion which provides for a per diem of Four Dollars per day for members of the general assembly, held that the term Uper diem” as used inArticle II, Section 23 of the Tennessee Constitution is synonymous with “salary” and stated that the term “salary” imports the idea of compensation for personal service, and not the repayment of money expended in the discharge of the duties of the office. 7S.W.Zd 815 (1928). Peay The Court inMcNair v. Allegheny County, 195 A. 118, 328 Pa. 3 held that “fees”, constitute payment for particular services performed, while “salaries” constitute fixed compensation for continuous services over a period of time.

The Texas Supreme Court in the case ofWichita County v. Robinson, 276 S.W.Zd 509 (1954) held that fees are compensation for particular services rendered at an irregular period, payable at the time the services are rendered.

Based upon the above authorities, it is clear to us that Section 24 ofArticle IIIof our Constitution does not provide that members of the Legislature shall be compensated on afee basis. It is our further opinion that members of the Legislature are elective officials of the State and are “State employees” as that term is defined inSubsection (c) of House Bill No. 666, Acts of the 54th Legislature. SUMMARY

Section 24 ofArticle III of our Constitution does not provide that members of the Legislature shall be compensated on afee basis. Members of the Legislature are elective officials of the State and are “State employees” as that term 1sdefined inSubsection-(cj of House Bill No. 666, Acts of the 54th,Legislature.

APPROVED: Opinion Committee H. Grady Chandler Chairman WVG:cs Yours very truly, WILL WILSON Attorney General of Texas