. 

it4 MATTOX 

Attorney General 

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P. 0. BOX 1254 

Austin. TX. 7071% 2549 

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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 state board 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: 

Sect Lou 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 the per diem is the amount prescribed by 

the General Appropriations Act. 

Sec. 3. Each law prescribing the amount of per 

diem rl:l.ating to membership on a state board or 

cossuission is 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 entitled by law. the law prescribing 

the amount of per diem is not suspended by this 

Act. 1.f a law imposes a limit on the number of 

days fo,r which a member of a state board or 

commission is entitled to claim per diem, the 

limit Is not suspended by this Act. 
Aonorablo Bob Bullock - Pajle 2 (~'~-3821 

Article 6813f does primarily two things. First, it specifies 

that the per diem of state board and commission members, as defined in 

section 1. shall be the amount prescribed by the General Approprlatione Act. Second, it suc.pends each law prescribing the amount of a 

board or commieaion membex'r per diem to the extent of conflict. The 

bill analyair for article 5813f. as originally enacted, stated that 

[t]he per diem ::ate for state boards 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 instances are 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,r the establishment of per diem 

entitlements in the General Appropriations Act. 

Thus, articIe 6813f c~llows for flexibility in firing the rate of 

per diem by tying it to the Appropriations Act and attempts te provide 

uniformity by making one rate applicable to the various boards and 

commissions. General law is a necessary prerequisite to an 

Appropriations Act 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 ,a general appropriations bill cannot amend, 

modify, or repeal general lav. See Tsx. Cone. art. III, 135; Moore 

v. Sheppard, 192 S.W.Zd 519 (Tex.1946); Coates V. Windham, 613 S.G;.2d 

572 (Tex. Clv. App. - .Austin 1981, no writ). Accordingly, an 

Appropriations Act rider which provides for per diem must be limited 

to the scope of article 681,3f. 

Section 4 of article V prescribes the per diem of state board and 

commission members as folious: 

PER DIW OF 13OARD OR COhXISSION MEMBERS. As 

authorized by !iection 2 of Article 6813f. Texas 

Revised Civil St,atutes Annotated, the per diem of 

state board an& commission members shall consist 

of (1) the amounts of compensatory per diem at $30 

per day; (2) ac,:ual expenses for meals 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. 1747 
Eonorabla 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:lalators pursuant to the Internal 

Revenue Code a.8 provided above is raired to an 

amount above $100, the m~x9sum amount 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 ,:f appropriation 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:.a 6813f (and, therefore, under section 4 of 

article V). 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 commission be 

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 state board 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 

affected by article 681:,f. Article 6813f. however, also evidences the 

legislative intent to m;~ica all per diem rates uniform. Moreover, the 

language used In section 1 is broad; it clearly encompasses clore than 

just boards and commis:3ions vith 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 agencies with statewide jurisdiction. See generally Attorney 

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. 1748 
Honorable 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 1s as follow: 

If a board hr.a a specific statute passed prior 

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 General Appropriations Act? 

Subsection (1) of article V, section 4. provides for “compensatory per 

diam at $30 per day.” Act,3 1985. 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 vati intended 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;%yment of compensatory per diem, Attorney 

General Opinion JM-349 conl:luded that the compensation section of the 

rider did not apply. 

Thus, article 6813f preempts prior statutes only to the extent of 

conf llct . When an existing statute specifies a* amount cf 

compensatory per diem or merely that compensatory per diem shall be 

paid. article 6813f. in conjunction with 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 reimbursernewt for actual expenses plus $100 per day, 

article 6813f .in conjunction with the current rider would (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 other hand, if a prior statute provides only 

for a per diem which covec:s expenses , article 6813f does 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 

Appropriations Act. 

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

state boards and commissi~~ns are entitled to compensatory per diem. 

The prior version 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 amount prescribed by the 

General Appropriatons Act. (Emphasis added). 

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 -- 

service on the board or commission. The amount of 

the per diem i.s the amount prescribed by the 

General Appropriations Act. (Emphasis edded). 

Acts 1983, 68th Leg., 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 

considerations apply to er’:h. Texas statutes often created one flat 

rate payment vhich incluclad both compensatory and reimbursement per 

diem. Other statutes prcnllded only for reimbursement for expenses. 

Some statutes expressly prohibited the receipt of compensation. In 

creating the numerous state boards and commissions. however, the 

legislature clearly inteniled that some would receive compensation, 

i.e.,payment for services, whereas others would not. Article 6813f is 

ambiguous because it fails; to adequately delineate between the tvo. 

The 1983 amendment to section 2 must be read in context with the 

rest of the statute. 11 cardinal rule of statutory construction 

requires that new provisions in a statute be construed In harmony with 

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 

relating to mamlwrship on a state board or commission is-suspandwl to the extent of a conflict with 

this Act. If the General Appropriations Act does 

not prescribe the amount of per diem to which a 

member of a state board or commission is entitled 

by ,lav. the lav prescribing the amount of per diem 

is not suspeuded by this Act. If a law imposes a 

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

limit on the numt’er of days for vhich a member-of 

a state board or-commission is entitled Co claim 

per diem. the lir2.t is not suspended by this Act. 

(Emphasis added). 

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 are ncmt suspended. 

A contrary interpretat.ion would present problems because per dfem 

which represents compens a,tion ,in contrast to per diem which 

represents reimbursement f’or expenses, can transform a nonlucrative 

position into a lucrative mane. 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 8’1 office, it vi11 constitute an “office of 

emolument” for purposes of article XVI. section 40, of the Texas 

Constitution, a provision which 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~ons into lucrative positions. The last 

sentence of the rider supplw:ts this cdnclusion as veil: 

No employee paltl from funds appropriated by this 

Act shall be pa:Ltl both a salary and compensatory 

per diem for c,oncurrent service as a state 

employee and as a board or commission member. 

Consequantly, ‘we respond to your second question in the negative. 

If a specific statute, passed prior to article 6813f. is silent on the 

issue of compensation, thr: board affected oas probably intended to be 

non-lucrative. The board, members are, therefore, not entitled to 

receive compensatory per diem under section 4(l) of article V of the 

current Appropriations Act. 

Your third question is 

whether Attorneyr General Opinion MU-388 is still 

valid as it applies to article 6813f repealing any 

statute which Ue.its the amount of travel reimbursement to which 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 

reimbursement to 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. 1751 
Roaorable Bob Bullock - Page 7 (JIG382) 

determine chat a prior stxcutory provision which expressly prohibited 

receipt of expenses was superceded by article 6813f in conjunction 

with the Appropriations Act rider then in effect. Attorney General 

Opinion JM-349 narroued t,hie holding significantly by noting that 

section 3 preempts only “lam prescribing the amount of per diem 

relating to membership on ,a state board 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 approprlatlons bill 

cannot amend. modify, or repeal general law. Accordingly, the basic 

preemptive effect of article 6813f must depend primarily upon when It 

was enacted. As a general rule, when two statutes deal with the sme 

subject, the most rscentlg enacted statute prevsils. Consequently, a 

statute which is passed subsequent to article 6813f and which concerns 

the amount of per diem a particular board’s members arc entitled to 

receive would create an rrcaption to article 6813f with regard to that 

board or cosmission. Becu~sc section 4(l) of article V of the current 

Appropriations Act provides for per diem “[a]6 authorized by Section 2 

of article 6!13f,” it does not apply to par diem established by other 

statutes, i.e., those erw:ted after article 6813f. The statute for 

the partlcuxboard and zhe board’s approprfaticn would control. 

Your fifth and sixth questions relate to the limit on relmbursement for actual expenses created by sectiou 4(2) of article V. 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,iam given to board and cosmission 

members under article 6813f be legally tied to an 

Internal Revemtr Service provision relating to 

state legislator’s axpenses while avay from home? 

If so, vhat Is t.he maximum amount of expense that 

could be allowed under this section? 

The limitation on the, meals and lodging portion of reimbursement 

per diem is created in a,rticlr V, section 4(2) by reference both to 

topic and to specific twction In the Internal Revenue Code. The 

section limits the amount of per diem allowed for meals and lodging to 

“the maximum amount allowed as a deduction for state legislators while 

avay from home during a legislative session as established pursuant to 

the Internal Revenue Code, 26 U.S.C. section 162(1)(1)(B)(li).” The 

, 

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

code section presently in effect which deals with the maximum amount 

allowed as a business deliuction for state legislators is section 

162(h), not section 162(1). The “error” in citation probably occurred 

prior to the redesignatl~s of 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 harmless because the provision 

vhich is applicable is re;ldily discernible 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 in Attorney 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 standards must guide such a per 

diem rider to the Appro?:ciations Act. 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 1egislatPve policy are to apply, but the legislature 

must provide standards tcs guide the exercise of delegated powers 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 

from home 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 thmz maximum per diem allovance vould 

be less than these expenses. except that such 

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

The import of section 4(2) of article V of the current Apptspriations Act is to limit stnte board md cosm~isslon members in n vay that 

ie related to the tax d~cductioa limit on state legisletors. consequently , state board or.d commission members covered by article V. 

section 4(2) are entitled to their actual expenses for men16 and 

lodging, except that they rney not receive reimbursement for more than 

$75 for the meals and lodging portion of per diem. If section 5702(c) 

of the federal net is amended within 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 federal act. 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,sted pursuant to executive order, 

to agency authwity , and to legislative reaoludon. 

2. If a specific statute, passed prior to 

article 6813f. is silent on the issue of compensation, the board’s members are not entitled to 

receive compenoetory per diem under sectton 4(l) 

of article V of the current Appropriations Act. 

3. Attorney General Opinion MU-388 (1981)‘, as 

it applies to Ithe effect of article 6813f. was 

modified by Attorney Ganeral Opinion JM-349 

(1985). 

4. A 6tatut.e passed subsequent to article 

6813f, and which concerns the amount of per diem a 

particular boa::d’s members 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 

Appropriations Act would not apply. 

5. The cil,ation “error” in section 4(2) of 

article V Is h;l!rmless. 

6. The par diem given to board or commlsslon 

members under article 6813f may be tied to an 

p. 1754 
Eonornble 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 truly your Ll A /iLh 

JIM MATTOX 

Attorney General of Texas 

MARYXXLLXR 

Rxecutive Assistant Attornqr General 

ROBERT GRAY 

Special Assistant Attorney General 

RICX GILPIN 

Chairmen, Opinion Committe~a 

Prepared by Jennifer Riggs 

Assistant Attorney General 

APPROVXD: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarnh Woelk 

p. 1755