Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MAlTOX .kugust 31, 1985
Attorney General
Supreme Court BulldIng Hr. Ron Pattarson Opinion No. JM-349
P. 0. Box 12545 Executive Director
Austin. TX. 78711-2545 State Property Tax P#oard Rt: Whether members of the
512U75-2501 9501 North 18-35 State Property Tax Board are
T**x em57c1357
Austin. Texan 78161 entitled to compensatory per
TalecoDlsr 5121475.0286
diem
714 J8ckson. Suite 700 Dear tlr. Pattenon:
Dallas. TX. 752024505
214n42B944
You have requested our opinloa regarding the payment of
compensatory per di.em to members of the State Property Tax Board.
4S24 Alberta Ave.. Suite 160
El Pare. TX. 799012793 Article 6813f, V.T.C.S., last amended In 1983, provides in Its
915/5333464 entirety:
. Texas. Sui1e 7DO Sectlc’n 1. In this Act, “state board or
tio~ston. TX. 770029111 comlssic~n” means a board, commission, committee,
713/22365S5 council, IDr other similar agency In the state
governmet t that Is composed of two or more
members.
SO6 Broadway, Suite 312
Lubbock, TX. 79401-3479
SO5/747.5238 kec. 2:. A member of a State board or
conmlssicn Is entltled to per diem relating to the
mamber’m a’errrick on the board or commission. The
4309 N. Tenth. Suits B
McAllen. TX. 78501-1685
amount of the per diem Is the amount prescribed by
5126524547 the General Appropriations Act.
3ec. 3. Each law prescribing the amount of per
200 Main Plaza, Suite 400
diem rel~ltlng to membership on a state board or
San Antonio. TX. 782052797
51212254191
comlasian la auspeaded to the extent of a
conflict with this Act. If the GtntXti
Appropriations Act does not prescribe the amount
An Equal Opportunity/ of per dj,em to which a member of a state board or
Affirmative Action Employer commissloa ICI entitled by law, the law prescribing
the amount of per diem ia not suspended by this
Act. If 1~ la+ lmpoeea a limit m.the number of
dayr for vhlch a member of a state board or
comlasloo is entitled to claim per diem. the
llmlt la tmt suspended by this Act.
p. 1593
. I
Ur. Ron Patterson - Page 2
The General Appropriations Act for the 1983-85 bieoolum established a
per diem allowance consisting of
actual expenses for meals and lodging (not to
exceed the maximun daily amount allowed as of the
first of January of that year for federal income
tax purposes as a deduction for ordinary and
necessary busineta expenses) and transportation
plus the amountf~ of compensatory w diem
apecif ically authorized in this Act or as
otherwise authorized by this Act.
Acts. 1983, 68th Leg., cll., 1095, art. V. $4. The uew General
Appropriations Act. which became effective on September 1. 1985,
substitutes for the foregoluf; the following language:
Sec. 4. PER DIW OF BOARD OR COMMISSION
MaBERS . As auttlcrized by Section 2 of Article
6813f. Texas Revirred Civil Statutes Annotated, the
per diem of state board and commlasion members
shall consist of (1) the amounts of compensatory
per diem at $30 I’er day; (2) actual expenses for
meals and lodging as authorized by this Act not to
exceed the maximum amount allowed as a deduction
for state legislators while away from home during
a legislative session as established pursuant to
the Internal Rewnue Code 26 D.S.C. Section
162 (I) (1) (B) (Ii) ; and (3) transportation. In the
event the maximuu amount alloved as a deduction
for state legiale~tora pursuant to the Internal
Revenue Code as provided above is raised to an
amount above $100, the maximum amount of meals and
lodging portion of the per diem paid to board and
commission members under this section shall not
exceed $100.
The items of appropriation for per diem of
board or commlssi.ca members include compensatory
per diem only. No employee paid from funds
appropriated by this Act shall be paid both a
salary and compensatory per diem for concurrent
service as a atr.te employee and as a board or
commission member,.
Acts 1985, 69th Leg., ch. !)80. art. V. 14. The principal difference
betveen the two riders la that, for 1985-87. the rate of “compensatory
per diem” Is specified in the rider at e particular amount, i.e., $30
per day. as well as in the :tine item for compensatory per diem in each
agency’s appropriation. 1.n the prior act. only the latter was
p. 1594
Mr. Ron Pattereou - Paga 3
included. In both Instance@; hwever, as vell aa hlatorlcally, the
kind of flat rate compmaatory par diem l atabllehed by the
Appropriatlonr Act does not repressat reimbursement for lxpenses but
compenaatiou for e.ervicer. Thlo office reached a similar conclualou
in Attorney General Opinion W-388 (1981):
We believe the vocding of article 6813f and this
appropriations acj: provlrlon plainly reflects a
legislative intent to adopt, for at least the tvo
year biennium. a more expanelve definition of per
diem which embraces both actual expenaee for meals
and lodging ,a& a flxally rate paymant.
When a per diem which represents compensation, in contrast to per
diem which repreeentr reimbursement for expenses. is provided by law
for a particular office, that office may be held to be "lucrative,"
Wlllla v. Potta. 377 S.W.2d 622 (Tex. 1964). and thus, an "office of
emolument" for purposes of article 16. aectloo 40 of the Texas
Constitution, the dual offi':e holding provlaion. As a result, If a
member of the State Property Tax Board is entitled to compensatory per
diem, he could be prohibLt:ed from holding any other office of
emolument. Compare Whiteheed v. Julian, 476 S.W.2d 844 (Tex. 1972);
Willis v. Potts. suprcr.
In our opinion, hovever, a,mamber of the Board is not entitled to
compensatory per diem. Sect,Lon 5.01(i) of the Tax Code provides:
A member of the bo;i:rd may not receive compensation
for his service ou the board but is entitled to
reimbursement for actual and neceaaary expenses.
as provided by 1eg:lslative appropriation. incurred
vhlle on travel etatus in the performance of
official duties.
Section 3 of article 6813f, the statute vhich furnishes the basis for
the per diem rider, preempts every "law prescribing the amount of per
diem relating to membership on a state board or c~laslon." Section
5.01(l) lo not, hovever. such a lav. Rather tban "preacrlbing" an
amount of per diem. that proMsion Prohibits the payment of any amount
that does not represent reldburaement for expenses. Numerous other
statutes apeclflcally prohlb:t the payment of compensation to board or
coxrniraion members, and to the extent they do so, they are not
preempted by article 6813f. See, e.g., Education Code, C161.026,
85.15. This conclusion Is bcAatered by the deletion of a key sentence
from the original bill vhlch became article 6813f. Rouse Bill 401
Initially provided:
p. 1595
ns. Ron Pattereon - Psgc 4
If a law prohit,its a per diem to be paid to 6
member of a etate board or CO666isSiOU. the
prohibition is smpended by this Act.
We believe that the dlrletion of this language from the final bill
a6 enacted indicates (r largislative intent in article 6813f not to
modify the provisions of prlrticular statutes vhich prohibit payment of
compensation. Accordingly, a member of the State Property Tax Board
1s not entitled to receiw compensatory per diem for service on the
Board. Since we ansver ycur first question in the negative, we need
not address your other quetztione.
SUMMARY
A member of the State Property Tax Board is not
entitled to recct:lve compensatory per diem, a6
provided in article V, section 4 of the current
General Approprirltions Act, for service on the
Board.
JIM MATTOX
Attorney Geueral of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERTGRAY
SpeCid ASSiStant Attorney Gmeral
RICK CILPIR
Chairman, Opinion Committee
Prepared by Rick Cilpln
ASsiSt.¶nt Attorney General
p. 1596
,
Mr. Ron P6tterson - P6ge 5
APPROVED:
OPINION COMMITTEE
Rick Cilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Jennifer Riggs
Nancy Sutton
p. 1597