.



## it4 MATTOX AttorneyGeneral

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An Equal OppOrtUnityI Afflrmrtivs Action EmPlOW 

# The Attorney General of Texas

November 20, 1985 Overrules in part MW-382

Ronorable Bob Bul:Lock Comptroller of Pub:lic Accbmts L.B.J. Building Austin, Texas 713774

Dear Mr. Bullock: Oplnioo No. JM-382

Ret Per diem for menbers state boards and commissions

You ask several questions regarding the scope and application a rider to the current General. Appropriations Act which provides the per diem of stateboard and commission members. Ses Acts 1985, 69th Leg., ch. 9BD, art. V, 14, at 7761. furnishes the basis for this rider. Article 6813f, V.T.C.S.,

Article 6813C provides in full:

SectLou 1. In this Act, ”state board or comUiSSiOll' means a board, commission, committee, council, or other similar agency in the stats government that is composed of two or mere members.
Sec. 2. A member of a state board or commission is entitled to per diam relating to the member’s service on the board or commission. The amount of theper diem is the amountprescribedby the GeneralAppropriationsAct.
Sec. 3. Each lawprescribing the amount of per diem rl:l.ating

to membership on a state board or cossuissionis suspended to the extent of a couflict with this Act. If the General Appropriations iwt does not prescribe the amount of per diem to which a member of a state board or commission is entitledby law. the law prescribing the amount of per diem is not suspendedby this Act. 1.fa law imposes a limit on the number of days fo,rwhich a member of a state board or commission is entitled to claim per diem, the limit Is not suspendedby this Act.Aonorablo Bob Bullock - Pajle2 (~'~-3821

Article 6813f does primarily two things. First, it specifies that theper diem of state board and commissionmembers, as defined in section 1. shall be the amount prescribedby the General Approprlatione Act. Second, it suc.pendseach law prescribing the amount of a board or commieaionmembex'r per diem to the extent of conflict. The bill analyair for article 5813f.as originallyenacted, stated that

[t]he per diem ::atefor stateboards and commissions is established in the enabling legislation and cannot be changed short of amending the act. Because of infla.tion,the mounts in moat instancesare grossly inadequate.
Bill Analysis to B.B. No. 957, filed in Bill File to A.B. No..957, Legislative Reference Library. The purpose of article 6813f vas, therefore,
[t]o provide fc,rthe establishment of per diem

entitlements in the GeneralAppropriationsAct.

Thus, articIe 6813f c~llowsfor flexibilityin firing the rate of per diemby tying it to the AppropriationsAct and attempts te provide uniformity by making one rate applicable to the various boards and commissions. General law is a necessary prerequisite to an AppropriationsAct rider ,v'hich purports to prescribe the per diem of all board and commissic~n members because of the constitutional principle that a rider to ,ageneralappropriationsbill cannot amend, modify, or repeal general lav. See Tsx. Cone. art. III, 135; Moore
v. Sheppard, 192 S.W.Zd 519 (Tex.1946); CoatesV. Windham, 613 S.G;.2d 572 (Tex. Clv. App. - .Austin 1981, no writ). Accordingly, an AppropriationsAct rider which provides for per diem must be limited to the scope of article 681,3f.
Section 4 of article V prescribestheper diem of stateboard and commissionmembers as folious:

PER DIW OF 13OARDOR COhXISSIONMEMBERS. As authorized by !iection2 of Article 6813f. Texas Revised Civil St,atutesAnnotated,the per diem of state board an& commission members shall consist of (1) the amounts of compensatoryper diem at $30 per day; (2) ac,:ualexpensesformeals and lodging
as authorized t#y this Act not to exceed the maximum amount allowed as a deduction for state legislators wtile away from home during a legislative se:wion as established pursuant to the Internal Revenue Code 26 D.S.C. Section

p. 1747Eonorabla Bob Bullock - Page 3 (~11-382)

162(i) (1)(B)(ii); and (3) transportation. In the event the maximum smount allowed as a deduction for state 1eg:lalatorspursuant to the Internal Revenue Code a.8 provided above is raired to an amount above $100, the m~x9sumamount of meala and lodging portion of the per diem paid to board and commiss~oo meu&ers under this sectioo shall not exceed $100.

The items ,:fappropriation for per diem of board or comm%ssion members include compensatory per diem onl!,. No employee paid from funds appropriated by this Act shall be paid both a salary and compensatory per diam for concurrent service as a state employee and as a board or comission memlwr.

Acts 1985, 69th Leg.. ch. 980. azt. V, 44, at 7761.

Your first question relates to the meaning of “state board or commission” under artic:.a6813f (and, therefore, under section 4 of articleV). You ask:

Whether a state board or commission must be created by statute in order to get per diem under article 6813f, or can the board or commissionbe created by an executive order, a legiblative resolution. cr pursuant to a state agency’s statutory authority to appoint advisory committees.
Section 1 of article 6813f defines stateboard or conmxission as “a board, commission. cmmittee. council, or other similar agency In the state government that is composed of NO or more members.” Article 6813f

’s bill a:vllysis.quoted above, reveals concern about fixed per diem rates wtablished “in the enabling legislation” of boards and commissions. This suggests that only boards and commissions which have fixed per diem rates established by statute are affectedby article 681:,f. Article 6813f.however, also evidences the legislative intent tom;~ica all per diem rates uniform. Moreover, the language used In section 1 isbroad; it clearly encompasses clorethan just boards and commis:3ionsvith per diem rates fixed in their enabling legislation. N? believe that the phrase “boards and commlsdons” as used in article 6813f refers to a subcategor]r of administrative agencieswith statewide jurisdiction. See generallyAttorney General Opinions MT-460 (1982);W-352, MW-323 (1981);W-177. MW-142 (1980). Thus, the score of article 6813f is not limited to bodies created by statute: it may include boards and commissions created

p. 1748Honorable Bob Bullock - Paw 4 (~11-382)

pursuant to executive ordm, to agency authority, and to legislative resolution. See Attorney General Opinion MW-323.

- Your second question 1sas follow:

If a board hr.aa specific statute passedprior to article 68131 which defines how a board is to be reimbursed f

’ve expenses, and that statute is silent on the Issue of compensation to be paid its members, are .thc members entitled to receive compensatory pez’diem under article V, section 4 of the GeneralAppropriationsAct?
Subsection (1)of articleV, section 4. provides for “compensatoryper diam at $30 per day.” Act,31985. 69th Leg., ch. 980, art. V, 54, at 7761. >
In asking this querlt:ion, you refer specifically to Attorney General Opinion JM-349 (1%5), In which oe concluded that a member of the State Property Tax Board is not entitled to receive the compensatory per diem provided for in subsection (1) of article ?, section 4. because the st.atute governing the Tax Board prohibited its members from receiving ccnpensation for their service on the board. Because article 6813f vatiintended to preempt only “law prascribing the amount of per diem relating to membership on a state board or comnission.” and because the statute in question “prohibited” rather than “prescribed” the p;%ymentof compensatory per diem, Attorney General Opinion JM-349 conl:luded that the compensation section of the rider did not apply.
Thus, article 6813f preemptsprior statutesonly to the extent of confllct

. When an existing statute specifies a* amount cf compensatory per diem or merely that compensatory per diem shall be paid. article 6813f. in conjunctionwith subsection (1) of section 4 of article V, supplies the amount of compensatory per diam for the biennium. For example, if a statute, enacted prior to article 6813f. provided for reimbursernewtfor actual expenses plus $100 per day, article 6813f.in conjunctionwith the current riderwould (1) replace the $100 compensation allowance with the $30 compensatory per dizm provision and (2) limit the amount that can be paid to reimburse for actual expenses. On the otherhand, if a prior statuteprovides only for a per diemwhich covec:s expenses, article 6813fdoes not authorize the Appropriations Act to change the fundamental characteristics of membership on the board or colmnission; it merely directs that reimbursement for expenses shall be computed and limited by the AppropriationsAct.

We are aware that the legislature amanded section 2 of article 6813f in 1983 in a manner vhich could suggest that members of 211

p. 1749Eonorable Bob Bullock - Paye 5 (Jli-382)

state boards and commissi~~nsare entitled to compensatoryper diem. The priorversion of section 2 provided that

Ji]f a mamber OL a stata board or coplission is entitled by 1alL to per diem relating to the member’s service on the board or commission, the amount of per diem is the amountprescribedby the GeneralAppropriatonsAct. (Emphasisadded).

Acts 1981. 67th Leg., ch.,428, at 1840-41. Tbe amended version of section 2 provides:

A mamber of a ztate board or commission is entitled to per diem relating to the member’s

-- serviceon theboard or commission. The amountof the per diem i.s the amount prescribed by the GeneralAppropriationsAct. (Emphasisedded).
Acts 1983, 68thLeg., ch. 761. I1 at 4371.

The primary problem at issue here arises because article 68i3f encompasses wo concepts: compensatory per diem and per diem vhich represents reimbursement Car expenses. See Attorney General Opinions JM-349 (1985); NW-388 -(l.SSl)

. Althoughthe term “per diem” has historically encompassed both types of payments, very different considerationsapply to er’:h. Texas statutes often created one flat rate payment vhich inclucladboth compensatoryand reimbursement per diem. Other statutes prcnlldedonly for reimbursement for expenses. Some statutes expressly prohibited the receipt of compensation. In creating the numerous state boards and commissions. however, the legislature clearly inteniledthat some would receive compensation, i.e.,paymentfor services,whereas otherswould not. Article 6813f is ambiguous because it fails;to adequatelydelineatebetween the tvo.
The 1983amendment to section 2 must be read in contextwith the rest of the statute. 11 cardinal rule of statutory construction requires thatnew provisions in a statutebe construedInharmonywith the statute as a vhole. Shipley v. Floydada Independent School District, 250 S.W. 159, 160 (Tex. Coonn’n App. 1923, judgmt adopted). Section 3 of article 6813f provides:

Each law mz:lbing the amount of per diem relatingtomamlwrship on a stateboard or commission is-suspandwl to the extentof a conflictwith this Act. If the General AppropriationsAct does not prescribe the amount of per diem to which a member of a state board or commission is entitled by ,lav.the lavprescribing the amountof per diem is not suspeudedby this Act. If a law imposesa

p. 1750Eonorable Bob Bullock - Pags 6 (Jn- 382)

limit on thenumt’erof days for vhich a member-of
a state board or-commission is entitled Co claim per diem. the lir2.tis not suspendedby this Act. (Emphasisadded).
This section expressly evidences the legislative intent that only laws “Prescribing the amount of per diem” are suspended. The last sentence also suggests thmts on per diem which do not relate to the “amount” of per diem arencmtsuspended.

A contrary interpretat.ion would present problems because per dfem which represents compens a,tion , in contrast to per diem which represents reimbursement f’orexpenses, can transform a nonlucrative position into a lucrativemane. Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); Attorney General Opinion JM-349. If a position is lucrative and if it can be deemed 8’1office, it vi11 constitute an “office of emolument” for purposes of article XVI. section 40, of the Texas Constitution, a provisionwhich prohibits a person from holding tvo offices of emolument at (the same time. Moreover, regardless of vhether all state board and commission members hold “offices.” we cannot believe that the legislature intended article 6813f, in conjunction with an Apprcpriations Act provlslon. to transform all state boards and commissi~onsinto lucrative positions. The last sentence of the rider supplw:ts this cdnclusion asveil:

No employee paltlfrom funds appropriatedby this Act shall be pa:Ltl both a salary and compensatory per diem for c,oncurrent service as a state employee and as aboard or commissionmember.
Consequantly, ‘werespond toyour second question in thenegative. If a specific statute,passed prior to article 6813f. is silenton the issue of compensation,thr: board affected oas probably intended to be non-lucrative. The board,members are, therefore, not entitled to receive compensatoryper diem under section 4(l) of article V of the currentAppropriationsAct.

Your third question is

whether Attorneyr General Opinion MU-388 is still valid as it applies to article 6813f repealingany statutewhich Ue.its the amount of travel reimbursement towhich a, board member is entitled.
Attorney General Opinion ‘?lW-388(1981) did not state that article 6813f repeals any statute vhich limits the amount of travel reimbursementto which a hoard member is entitled. The opinion stated that article 6813f was intended to supercede only conflicting provisions regarding per diem. Nevertheless, the opinion did

p. 1751Roaorable Bob Bullock - Page 7 (JIG382)

determine chata prior stxcutory provision which expressly prohibited receipt of expenseswas superceded by article 6813f in conjunction with the AppropriationsAct rider then in effect. Attorney General Opinion JM-349 narroued t,hieholding significantly by noting that section 3 preempts only “lam prescribing the amount of per diem relating to membershipon ,astateboard or cosneission.~Accordingly, Attorney General Opinion J&349 overruled W-388 to the extent of conflict.

Your fourth question concerns the effect of article 6813f on a statute enacted subsequent to article 6813f. As indicated at the beginning of this opinion, a rider to a general approprlatlonsbill cannot amend. modify, or repeal general law. Accordingly, the basic preemptive effectof article 6813f must depend primarilyuponwhen It was enacted. As a general rule, when two statutesdealwith the sme subject, the most rscentlg enacted statute prevsils. Consequently,a statutewhich ispassed subsequent to article 6813fandwhich concerns the amount of per diem a particular board’s members arc entitled to receivewould create an rrcaption to article6813f with regard to that board or cosmission. Becu~sc section 4(l) of articleV of the current AppropriationsAct provides for per diem “[a]6 authorizedby Section 2 of article 6!13f,” it does not apply to par diem establishedby other statutes, i.e., those erw:ted after article 6813f. The statute for the partlcuxboard and zheboard’s approprfaticnwould control.
Your fifthand sixth questions relate to the limiton relmbursement for actual expenses created by sectiou 4(2) of articleV. You ask:

There appears to be a mistake in the citation

to the I.B.S. coda. The correct cite to the provision relal:l.ng to state legislator’s travel expenses auay from home is 26 U.S.C. Section 162(h)(1)(B)(ii). Does this make a difference?
May the per d,iamgiven to board and cosmission membersunder article 6813f be legally tied to an Internal Revemtr Service provision relating to state legislator’saxpenses while avay fromhome? If so,vhat Is t.he maximum amount of expense that couldbe allowedunder this section?

The limitationon the, meals and lodgingportion of reimbursement per diem is created in a,rticlr V, section 4(2) by referenceboth to topic and to specific twction In the Internal Revenue Code. The section limitsthe amount ofper diem allowed for mealsand lodging to “the maximum amountallowedas a deduction for state legislatorswhile avay fromhome duringa legislative sessionas establishedpursuant to the Internal Revenue Code, 26 U.S.C. section 162(1)(1)(B)(li).” The

,

p. 1752Bonorible Bob Bullock- Png~ 8 (Jn-382)

code section presently in effect which deals with the maximum amount allowed as a business deliuctionfor state legislators is section 162(h), not section 162(1). The “error” in citationprobably occurred prior to the redesignatl~sof sections (h) and (i) in the code. See 26 U.S.C. 1162. Codification Note (referring to Pub. La. 97-34 and 97-35). Uo believe that the “error” is harmlessbecause the provision vhich is applicable is re;ldilydiscernible from the express reference to the deduction allowad for state legislators and **from the**  rider’s legislative history. Commre **Acts** 1985, 69th Leg., ch. 980, art. V, 34; with Acts 1983, 68rh.i;cg..ch. 1095, art. V, 14 (held Ineffective beca=of vagueness inAttorney General Opinion JM-152 (1984)).

You also ask whether the provision may be legally tied to an Internal Revenue Code p::ovision. Attorney General Opinion -T-152 (1984) Indicated that cleiu: ,objective standardsmust guide such a per diem rider to the Appro?:ciationsAct. A variable provision which refers to a potentially fluctuating standard may be viewed as an impermlsslble delegation of certain powers. The legislature may delegate the task of making rules and determining facts to which existing law and 1egislatPvepolicy are to apply, but the legislature must provide standards tcsguide the exercise of delegatedpowers and duties. San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262 &x. 1976).

The rider in question clearly ties the maximum amount allowed as reimbursement for the meals and lodging portion of per diem tc the maximum amount that state ‘Legislators may deduct as a business e:cpense for meals and lodging u&er section 162(h)(l)(B)(ll). This sectibn allows deduction of

the amount generally allowable with respect to such day **to** em?:Loyecs of the executive branch of the federal gcvernment for par diem while away fromhome but serving in the Unitcd States.
This amount is establishad as “a per diem allowance for travel inside the contlnental United States **at** s **rate** not to exceed $50." See 5 U.S.C. 55702(a). This limit is further qualified by allxng reimbursement

for the actual and necessary expenses of official travel **when** thmzmaximum per diem allovance vould be less than these expenses. except that such reimbursementshall not exceed $75 for each day in
a travel status vithin the continental United States when the par diem otherwise allowable Is determined to tie:

inadequate.

. . . 5 U.S.C. 55702(c).

p. 1753Aonornblc Bob Bullock - Pags 9 (m-382)

The import of section4(2) of articleV of the current ApptspriationsAct is to limit stnteboard md cosm~isslon members in n vay that ie related to the tax d~cductioalimit on state legisletors. consequently, state board or.dcommissionmembers covered by article V. section 4(2) are entitled to their actual expenses for men16 and lodging, except that they rneynot receive reimbursementfor more than $75 for themeals 

### and lodgingportionof per diem. If section 5702(c) of the federal net is amendedwithin the next two years to allow a lesser or greater amount of reimbursement, the board and commission members may receive that amount so long as it does not exceed SlOO. Thus, the rider allow only limited fluctuations vhich arc tied to potential amendments to the federalact. The rider also provides an absolute maximum on the amount. Consequently, the rider is not an unconstitutional delegat:lon.

_ See Attorney General Opinion ?lW-17 (1979).

SUMRARY.

1. The scqc of article 6813f. V.T.C.S., Is not limited to “boards and commissions”which are created by statute; it may include boards and commissions crt,stedpursuant to executive order, to agency authwity , and to legislative reaoludon.

2. If a specific statute, passed prior to article 6813f. is silenton the issue of compensation, the board’s members are not entitled to receive compenoetory per diem under sectton 4(l) of articleV of the currentAppropriationsAct.

3. Attorney General OpinionMU-388 (1981)‘, as it applies to Itheeffect of article 6813f. was modified by Attorney Ganeral Opinion JM-349 (1985).

4. A 6tatut.epassed subsequent to article 6813f,andwhich concernsthe amount of per diem a particularboa::d’smembers are entitled to,would create an exception to article 6813f with regard to that boal,d or commission. Consequently, section 4(l) of article V of the current AppropriationsActwould not apply.

5. The cil,ation“error” in section 4(2) of articleV Ish;l!rmless.

6. The par diem given to board or commlsslon members under article 6813f may be tied to an

p. 1754Eonornble Bob Bullock - Pngo 10 (JM-382)

Internal Revenue, Code provision. The present 

### msximum*mount t,h,at may presently be reimbursed 

### for the meals and lodging portion of per diem is $75.

Very trulyyour 

# Ll /iLh

A JIM MATTOX AttorneyGeneral of Texas

MARYXXLLXR RxecutiveAssistant Attornqr General

ROBERT GRAY SpecialAssistantAttorney General

RICX GILPIN Chairmen,Opinion Committe~a
Preparedby Jennifer Riggs AssistantAttorney General

APPROVXD: OPINION COMMITTEE
Rick Gilpin,Chairman Colin Carl SusanGarrison Tony Guillory Jim Moellinger JenniferRiggs Nancy Sutton SarnhWoelk

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