Untitled Texas Attorney General Opinion ( 1957 )

February 15, 1957
Honorable Price Daniel Opinion No. WW-7-A
Governor of Texas
Capitol Station Re: Reconsideration of Opinion
Austin, Texas No. WW-7 --Social Security
participation by Senators
Dear Governor Danie I: and Representatives.
On January 22, 1957, we held in Opinion No. WW-7 that
members of the Legislature were 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. We also held that
Article III, Section 24 of the Texas Constitution, which provides that
members of the Legislature shall receive from the public treasury
a per diem of not exceeding Twenty-five Dollars per day, etc., does
not provide for the members of the Legislature to be paid upon a fee
basis. Said Subsection (c) reads, 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. . . *
You state that you have before you S.B. No. 138 which
amends Subsection (c), above quoted, by expressly providing that the
term “State employee ” shall not include members elected to the
House of Representatives and Senate. You request our opinion as to
the effect of this Bill in view of the contract between the State and
the Federal Government on coverage of State employees.
After receiving your letter, this Department has reconsider-
ed Opinion WW-7, in light of additional facts coming to our attention.
We are enclosing herewith said Opinion, which states the
basis of our holding. The writer of this reconsideration opinion, in
discussing this matter this morning with Honorable John H. Winters,
Executive Director of the Department of Public Welfare, who is
charged with the enforcement of our Laws relative to Old Age and
Survivor’s Insurance, learned that such Department, since the passage
of House Bill No. 666, Acts of the 54th Legislature, 1955, has con-
sistently construed the term “per diem” as employed in various boards
whose members are paid on a per diem basis, to the effect that such
compensation is on a fee basis. Since writing our original opinion,
Hon. Price Daniel, page 2 (WW-7-A’)
we have been informed that the Treasury Department of the United
States has also placed a like construction on the term “per diem”.
Black’s Law Dictionary, 4th Edition, among other defini-
tions, states that per diem means:
“Per diem is sometimes and by some courts
held to be included in the term fees and sometimes
otherwise, and the two terms are not always
synonymous. Anderson v. Beadle County, 51 S.D. 6,
211 N.W. 968, 969.”
The courts of this State have often stated that the con-
struction placed upon a statute by the governmental agency charged
with the enforcement thereof, should not be overturned unless such
departmental construction is clearly wrong.
In view of the fact that some courts, as stated in Black’s
Law Dictionary, have held that compensation on a “per diem” basis
is included in the term “fees”, we do not believe we can say that
the departmental construction of the Welfare Department is clearly
wrong. You are therefore advised that our Opinion WW-7 is with-
drawn and that it is our considered opinion thnt the members of the
Legislature are excluded from pqr.ticipation in the Old Age and
Survivor’~s Insurance by virtues of the exemption contained in House
Bill No, 666 which-states; ” . , , but shall not include those persons
rendering services in positions, the compensation for which is on a
fee basis. . . ”
You are further advised that S.B. No. 138, which expressly
excludes members of the Legislature from coverage under Chapter
467, Acts of the 54th Legislature, will accomplish no purpose whatso-
ever if it becomes a law, as the members of the Legislature are
excluded under the present law.
SUMMARY
Subsection (c) of Article 1 of H.B. No. 666,
Chapter 467, Acts 54th Legislature which
provides that the term “State employee”
shall not include persons rendering services
in positions, the compensation for which is
on a fee basis, excludes members of the
Legislature from being cove,red under the
Hon. Price Daniel, page 3 (WW-7-A)
Act, in that the “per diem” of the
members of the Legislature consti-
tutes payment on a fee basis.
Yours very truly,
WILL WILSON
Attorney General
W. V. Geppert
Assistant
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
WVG:cs