Case Information

*1 .

The Attorney General of Texas November 20, 1985 it4 MATTOX Overrules in part MW-382

Attorney General Ronorable Bob Bul:Lock Oplnioo No. JM-382 Supr~ma Cauct Building Comptroller of Pub:lic Accbmts P. 0. BOX 1254 L.B.J. Building Ret Per diem for menbers Austin. TX. 7071% 2549 51214752Wl Austin, Texas 713774 state boards and commissions TalKa 91om7c1367 Telecopier SY475M68 Dear Mr. Bullock: 714 Jackson. Suite 700

You ask several questions regarding the scope and application Dallas. TX. 75202d506 a rider to the current General. Appropriations Act which provides 21u7424944 the per diem of state board and commission members. Ses Acts 1985, 69th Leg., ch. 9BD, art. V, 14, at 7761. Article 6813f, V.T.C.S., furnishes the basis for this rider. 4924 Albmls Ave.. SuitS 180 El Paso. TX. 799052793 915lm3484 Article 6813C provides in full: Sect Lou 1. In this Act, ” state board or com- 01 Texas. Suits 700 UiSSiOll' means a board, commission, committee,

rlouston. TX. 77002-3111 council, or other similar agency in the stats 713.223-5886 government that is composed of two or mere members. 806 Broadway, Suits 312 Lubbock. TX. 794014479 Sec. 2. A member of a state board or com- Sw747.5239 mission is entitled to per diam relating to the member’s service on the board or commission. The 4309 N. Tenth. Suite S amount of the per diem is the amount prescribed by McAllan. TX. 78501-1685 the General Appropriations Act. 512mS2.4!547

Sec. 3. Each law prescribing the amount of per 200 Main Plaza. Suite 400 diem rl:l.ating membership on a state board or San Antonio. TX 782052797 cossuission is suspended to the extent of a cou- 512/2254191 flict with this Act. If the General Appropria-

tions iwt does not prescribe the amount of per diem to which a member of a state board or An Equal OppOrtUnityI commission is entitled by law. the law prescribing Afflrmrtivs Action EmPlOW

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 *2 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 Approprla- tione 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 state boards and commis- sions is established in the enabling legislation and cannot be changed short of amending the act. Because of infla.tion, the mounts in moat in- stances 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 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 *3 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 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 com- mittees.

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 commis- sions 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 commls- dons” as used in article 6813f refers to a subcategor]r of adminis- trative 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 *4 (~11-382) Honorable Bob Bullock - Paw 4

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 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 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 *5 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 en- titled 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 (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 commis- sion 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 *6 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

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 reimbur- sement 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 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 *7 (JIG382) Roaorable Bob Bullock - Page 7

determine chat a prior stxcutory provision which expressly prohibited receipt of expenses was superceded by article 6813f in conjunction with the Appropriations Act rider Attorney General then in effect. 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, General Opinion J&349 overruled W-388 to the extent of Attorney 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 relmburse- ment 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 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 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

,

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 Uo believe that the “error” is harmless because the provision 97-35). 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 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 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).

Aonornblc Bob Bullock - Pags 9 (m-382)

The import of section 4(2) of article V of the current Apptspria- tions 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. con- sequently , 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 reaolu- don.

2. If a specific statute, passed prior to article 6813f. is silent on the issue of compensa- tion, 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 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 *10 Eonornble Bob Bullock - Pngo 10 (JM-382)

Internal Revenue, Code provision. The present msximum *mount t,h,at may presently be reimbursed the meals and lodging portion of per diem is $75.

Very truly your Ll /iLh

A 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