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 in the Law, to participate 

in Old page 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” in addition, 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 a fee basis’ are excluded. If they are not within 

the exclusion, it is assumed that they must participate 

in Social 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 Twenty 
Hon. 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 of Tennessee 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 in Article 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. 

7 S.W.Zd 815 (1928). 

Peay 

The Court in McNair 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 of Wichita 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 of Article III of our Constitution does not provide that 

members of the Legislature shall be compensated on a fee 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 in Subsection (c) of House Bill No. 666, Acts of 

the 54th Legislature. 

SUMMARY 

Section 24 of Article III of our Constitution does 

not provide that members of the Legislature 

shall be compensated on a fee basis. Members 

of the Legislature are elective officials of the 

State and are “State employees” as that term 

1s defined in Subsection-(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