Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 29,2005
Mr. Paul Mallett Opinion No. GA-03 18
Executive Director, Commission on State
Emergency Communications Re: Whether certain members of the Commission
333 Guadalupe Street, Suite 2-212 on State Emergency Communications are entitled
Austin, Texas 78701-3942 to receive compensatory per diem (RQ-028%GA)
Dear Mr. Mallett:
You ask whether certain members ofthe Commission on State Emergency Communications
are entitled to receive compensatory per diem.’
The Commission on StateEmergency Communications (the “Commission”) is created under
subchapter B of chapter 771 of the Health and Safety Code. See TEX. HEALTH & SAFETY CODE
ANN. §§ 771.031-.039 (Vernon 2003). The Commission is “composed ofnine appointed members
and three ex officio members.” Id. § 771.031(a). The executive director of the Public Utility
Commission, the executive director ofthe General Services Commission, and the Commissioner of
Public Health, or their designees, serve as nonvoting ex officio members. See id. $771 .031@).2 The
lieutenant governor and the speaker of the house of representatives each appoints two members to
serve as representatives of the general public. See id. § 771.031(c). The governor appoints five
members, as follows:
(1) one member who serves on the governing body of a regional
planning commission;
(2) one member who serves as a director or is on the governing body
of an emergency communication district;
(3) one member who serves on the governing body of a county;
‘See Letter from Paul Mallett, Executive Director, Commission on State Emergency Communications, to
Honorable Greg Abbott, Texas Attorney General (Oct. 27,2004) (on file with opinion Committee, also avoidable af
http:Nwww.oag.state.tx.us)[hereinafter Request Letter].
‘The Texas general ServicesCommissionhas been renamed the TexasBuilding and ProcurementCommission,
and the Texas Department of Public Health has become a part of the Texas Department of State Health Services.
Mr. Paul Mallett - Page 2 (GA-03 18)
(4) one member who serves on the governing body of a home-rule
municipality that operates a 9-l-l system that is independent of the
state’s system; and
(5) one member as a representative of the general public.
Id. 5 771.031(d).
Section 771.034 of the Health and Safety Code provides that “[tlhe expenses of a member
of the commission shall be paid as provided by the General Appropriations Act.” Id. 5 771.034.
You acknowledge that “the ex officio members, who serve by reason of their state office, are not
entitled to compensatory per diem.” Request Letter, supra note 1, at 1. You also note that section
574.005 ofthe Government Code prohibits local elected and appointed members ofthe Commission
from receiving compensatory per diem. See id.’ You ask whether the remaining members of the
Commission - the public representative appointed by the governor and the four public members
appointed, respectively, by the lieutenant governor and the speaker of the house - are entitled to
receive compensatory per diem. See id. at 2. We limit our answer accordingly.
Section 659.032 of the Government Code provides that “[a] member of a state board is
entitled to a per diem in an amount set by the General Appropriations Act for the member’s service
on the board.” TEX. GOV’T CODE ANN. 5 659.032(a) (Vernon 2004). ‘State board” is defined for
purposes of this provision as “a board, commission, committee, council, or similar agency in the
executive or judicial branch of state government that is composed of two or more members. The
term does not include a board, commission, committee, council, or similar agency whose
membership is elected by vote of the people.” Id. 5 659.03 1. Because the Commission is a part of
the executive branch, it is a “state board” whose members are entitled to receive per diem.
‘Section 574.005 provides, in relevant part:
(a) In this section:
(1) “Local government” means a county, a municipality, a special district or
authority, or another political subdivision of this state.
(2) “State agency” means a deparhnent, commission, board, office, council,
authority, or other agency in the executivebranch of state government that is created by
the constitution DIa statute of this state, including a university system 01institution of
higher education as defined by Section 61.003, Education Code.
(b) An individual who holds an elected or appointed local government office may be
appointed to the governing body of a state agency if otherwise eligible. The individual
may not receive compensation for sewing on the governingbody ofthe state agency but
may be reimbursed as provided by other law for a reasonable and necessary expense
incurred in the performance of an official function.
TEX.GOV’TCODEANN.5 574.005(a)-(b)(Vernon 2004)
Mr. Paul Mallett - Page 3 (GA-0318)
The 2003 General Appropriations Act describes three kinds of per diem. Only the first is
relevant to your question. Article IX, section 4.04(a)( 1) of the General Appropriations Act provides,
in relevant part:
(a) As authorized by [section] 659.032, Government Code, the per
diem of state board and commission members consists of:
(1) compensatory per diem, if specifically authorized by law,
at $30 per day[.]
General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, 5 4.04(a)(l), 2003 Tex. Gen. Laws
5023, 5893-94. “Compensatory per diem” constitutes a fixed compensation at a daily rate, in
contrast to reimbursement for expenses. See Tex. Att’y Gen. Op. No. JM-349 (1985) (“[tlhe kind
of flat rate compensatory per diem established by the Appropriations Act does not represent
reimbursement for expenses but compensation for services”). Thus, under this provision, the five
public members of the Commission are entitled to receive compensatory per diem at the rate of $30
per day ifspecifcally authorized by law. See General Appropriations Act, 78th Leg., R.S., ch. 1330,
art. IX, 5 4.04(a)(l), 2003 Tex. Gen. Laws 5023,5894.
Section 4.04(a) itselfrefers to section 659.032 ofthe Government Code, which in turn refers
to subsection 4.04(a) ofthe General Appropriations Act provision. See id.; TEX. GOV’T CODE ANN.
$659.032 (Vernon 2004). However, neither subsection 4.04(a), section 771.034 of the Health and
Safety Code, nor any other provision of law specifically authorizes the payment of compensatory per
diem. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, 5 4.04(a)(l), 2003 Tex.
Gen. Laws 5023,5894; TEX. HEALTH & SAFETYCODE ANN. § 771.034 (Vernon 2003). We believe
the most reasonable approach is to construe section 4.04(a) to require a specific grant of
compensatory per diem in the enabling legislation that creates a governmental body.“ Jn the situation
you pose, no such grant appears in chapter 771 of the Health and Safety Code, the Commission’s
enabling legislation.
4Theamount of compensatory per diem may not be specified, but merely the fact of its availability. Section
659.033 of the Government Code provides:
(a) A law setting the amount of per diem for members of a state board is
suspended to the extent of conflict with this subchapter.
(b) The law setting the amount of per diem for a member of a state board is not
suspended if the General Appropriations Act does not set the amount of per diem to
which the member is entitled.
(c) A law setting a limit on the number of days for which a state board member
is entitled to a per diem is not suspended by this subchapter.
TEX.G~V’TCODEANN.
5 659.033 (Vernon 2004) (emphasis added).
Mr. PaulMallett - Page 4 (GA-0318)
It has been suggested, however, that subsection (d) of section 4.04 of article IX of the 2003
General Appropriations Act provides the necessary authorization for the payment of compensatory
per diem by the Commission. See Request Letter, supra note 1, at 2. That provision states:
(d) An agency that has a “Schedule of Exempt Positions and Per
Diem of Board (or Commission) Members” following the agency’s
appropriations may expend appropriations for board or commission
member compensatory per diem in an amount not to exceed the
amount specified in the schedule for each respective fiscal year.
General Appropriations Act, 78thLeg., R.S., ch. 1330, art. IX, § 4.04(d), 2003 Tex. Gen. Laws 5023,
5894. We must first determine whether subsection (d) is an item of appropriation or a non-
appropriating rider.
In Jessen Associates v. Bullock, 531 S.W.2d 593 (Tex. 1975), the Texas Supreme Court
considered a rider to the appropriation for the University of Texas which read as follows:
The Board of Regents of The University of Texas System is hereby
authorized (1) to expend such amounts of its Permanent University
Fund bond proceeds and/or other bond proceeds and such amounts of
its other available moneys as may be necessary to fund one or more
ofthe following projects either in whole or in part, (2) to accept gifts,
grants, and matching grants to fund any one or more of such projects
either in whole or in part, and (3) to acquire, construct, alter, add to,
repair, rehabilitate, equip and/or furnish any one or more of such
projects for The University of Texas at Austin: (1) Alterations and
Additions to Law School [,]
Jessen Assocs., 531 S.W.2d at 597 (footnote omitted). The court held that this rider “was not
intended by the Legislature to appropriate funds, and therefore was not an ‘item of appropriation.“’
Id. at 596. According to the court, the purpose of the rider was to “direct the use of’ funds
appropriated elsewhere “bygiving express legislative approval to the projects specified.” Id. at 600.
By the same reasoning, section 4.04(d), the provision at issue here, is not an item of appropriation.
If subsection (d) is not an item of appropriation, it must necessarily constitute a rider. See
generally id. Article III, section 35 of the Texas Constitution provides that “[n]o bill (except general
appropriation bills, which may embrace the various subjects and accounts, for and on account of
which moneys are appropriated) shall contain more than one subject.” TEX. CONST. art. III, 5 35.
A rider is valid if it merely “detail[s], limit[s], or restrict[s]” the use of appropriated funds. Tex.
Att’y Gen. Op. No. V-1254 (1951) at 8. A rider may not, however, enact general law. See Tex.
Att’y Gen. Op. Nos. DM-116 (1992) at 2-3 (rider may not require Department of Aging to “use the
service standards, systems, billing and audit procedures, and provider bases used by the Department
of Human Services”); MW-585 (1982) at 2-3 (rider is invalid as “a general directive to the’state
Board of Barber Examiners to take specific affirmative action”); MW-51 (1979) at 4-5 (rider is
invalid because it directed State Board of Control to “establish a maximum and a minimum monthly
Mr. Paul Mallett - Page 5 (GA-0318)
charge for state employee parking”); V-1254 (1951) at 12 (rider is invalid because it required all
state-owned passenger vehicles to be sold not later than October 1, 195 1). Nor may a rider amend
or conflict with general law. See Tex. Att’y Gen. Op. Nos. JC-0178 (2000) at 3-4 (rider may not
change formula for allocation of funds for distribution of emergency medical services and trauma
care funds where statute sets formula); JM-167 (1984) at 2-3 (rider may not confer affirmative duty
to “enter into a contract with the Texas Lions League or a similar organization to provide
rehabilitation services to blind adults at the Texas Lions Camp for Crippled Children” where statute
places decision to enter such a contract within the discretion ofthe Commissioner ofHealth); H-321
(1974) at 3 (rider may not repeal statutory freedom of choice accorded to inmates of Department of
Corrections in selecting medical care).
Subsection (d) does not purport to amend section 659.032 of the Government Code, which
provides that “[a] member of a state board is entitled to a per diem in an amount set by the General
Appropriations Act for the member’s service on the board.” TEX. GOV’T CODE ANN. 5 659.032(a)
(Vernon 2004). On the other hand, subsection 4.04(a)(l) of the Appropriations Act, as we have
noted, refers to section 659.032 of the Government Code and declares that the per diem of state
board and commission members consists of “compensatory per diem, if specifically authorized by
law.” General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(a)(l), 2003 Tex. Gen.
Laws 5023, 5893-94. Because section 4.04(d) is a rider to the General Appropriations Act, it may
not be construed to constitute a specific law. If subsection (d) were deemed to do so, it would
necessarily do more than detail, limit, or restrict the use of appropriated funds. Indeed, it would
constitute a general law within the Appropriations Act and, as such, would be invalid under article
III, section 35 of the Texas Constitution. In order to avoid this conclusion, we interpret the meaning
of subsection (d) to lie in its limiting language: “in an amount not to exceed the amount specified
in the schedule for each respective fiscal year.” Id. 9 4.04(d), at 5894. Construed thus, section
4.04(d) merely details, limits, or restricts the use of appropriated funds.
We are supported in this view by a number of statutes that specifically authorize the payment
of compensatory per diem in an agency’s enabling statute. See, e.g., TEX. FIN. CODE ANN.
5 15.207(b) (Vernon Supp. 2004-05) (“For each day that a commission member engages in the
business of the commission, the member is entitled to: (1) per diem, including compensatory per
diem .“); TEX. HEALTH & SAFETY CODE ANN. $ 461.009 (Vernon 2001) (A member of the
Commission on Alcohol and Drug Abuse “is entitled to receive: (1) the compensatory per diem
authorizedby the General Appropriations Act for each day spent in performing the member’s official
duties .“); TEX. HUM. RES. CODE ANN. 5 101.005(a) (Vernon 2001) (members of the Citizens
Advisory Council “are entitled to the compensatory per diem authorized by the General
AppropriationsAct”);T~~.T~~C0~~ANN.§5.101(t)(V emon 2002) (“A member ofthe [Technical
Advisory] committee may receive compensatory per diem for serving on the committee .“).
Chapter 771 of the Health and Safety Code, on the other hand, contains no specific authorization for
a member of the Commission on State Emergency Communications to receive payment for
compensatory per diem. See TEX. HEALTH & SAFETY CODE ANN. $5 771.001-,108 (Vernon 2003
& Supp. 2004-05).
We conclude therefore that the five public members of the Commission on State Emergency
Communications are not entitled to receive compensatory per diem.
Mr. Paul Mallett - Page 6 (GA-0318)
SUMMARY
The five public members of the Commission on State
Emergency Communications are not entitled to receive compensatory
per diem.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee