Case Information
*1 The Attorney General of Texas
November 20, 1985
JIM MATTOX
Attorney General
Supreme P. 0. BOX 12548 Austin, 512/475-2501 Telex Telecopier 9101874.1367 TX. 76711. Court Suilding 512/4750266 [2548] Mr. Vernon M. Arrel.1 Austin, Texas 711704 Texas Rehabilitat:ton Ccnnnission Ret Whether a member of the Texas Comissioner 118 E. Riverside Drive Planning Council for Developmental Opinion No.JM-374 Disabilities is entitled to com- pensatory per diem 714 Jackson. Suite 700 Dear Mr. Arrell: Dallas, TX. 75202.4506 214/742-6944
You ask whether members of the Texas Planning Council for
Developmental Disabilities may be paid compensatory per diem for performing their official duties. 4824 Alberta Ave.. Suite 160 El Paso, TX. 79905-2793
9151533-3464 Section 112.312 of the Texas Human Resources Code provides for
the creation of a,25-member planning council. Subsections (c) and (d) [71312255886] 10ot Texas, Suite 700 Hcxston, TX. 77002-3111 council. Section 112.015 of the Texans Human Resources Code provides of section 112.01:2 detail the 18 gubernatcrial appointees to the for the expenses of these council members as follows: (a) C:ouncil members appointed under Section 606 Broadway. Suite 312 112.0121:~:) or (d) of this code serve without Lubbocft, TX. 79401.3479 salary but are entitled to reimbursement for 8061747.5238 actual expenses incurred in performing their duties, including travel, meals, lodging, and 4309 N. Tenth. Suite 6 telephone. long-distance charges. (Emphasis f.dc~tten. TX. 785wi6a5 512/662-4547 Your question arose because of article 6813f. V.T.C.S., and 200 Main Pla2a, Suite 400 article V, section 4 of the 1986-87 General Appropriations Act. San Antonio, TX. 78205.2797 Article 6813f provides in full: 512/225-4191
Secthxl 1. In this Act, 'state board or commissi~on' means a board, commission, committee,
An EqUill Opportunity/ council, or other similar agency in the state Affirmative Action Employer that is composed of two or more governmmt members. Sec. 12. A member of .a state board or com- mission is entitled to per diem relating to the mamber'e service on the board or commission. The amount cf the per diem is the amount prescribed by the General Appropriations Act.
P. 1710 *2 Mr. Vernon M. Arrell - Page: 2 (m-374) _. Sec. 3. Each law prescribing the amount of per --
diem relating tc membership on a state board or commission is :%spended to the extent of a conflict with th:z&. If the General Appropria- tions Act does not orescribe 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. If a law ,tmposes a limit on the number of days for which ,% member of a state board or commission is eatitled to claim per diem, the limit is not srspended by this Act. (Emphasis Article V, section 4 of the General Appropriations Act states:
PER DIEM OF :3OARD OR COMMISSION MEMBERS. As authorized by Section 2 of Article 6813f, Texas Revised Civil Statutes Annotated, the per diem of state board and commission members shall consist of (1) the amounlz% of compensatory per diem at $30 per day; (2) actual expenses for meals and lodging as aurhorized by this Act not to exceed the maxi- mum amount allowed as a deduction for state legis- lators while awsy from home during a legislative session as established pursuant to the Internal Revenue Code 26 U.S.C. Section 162(i)(l)(B)(ii); and (3) transportation. In the event the maximum amount allowed ,313 a deduction for state legis- lators 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 cormsission 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 state employee, and as a board or commission member. (Emphasis added).
Acts 1985, 69th Leg., ch. 980, art. V. 54, at 7761.
In Attorney General 0pinion JM-349 (1985), we concluded that a member of the State Proper,ty Tax Board is not entitled to receive then compensatory per diem pror:tded for in article V. section 4, because section 5.01(i) of the Texas Tax Code states that "[al member of the board may not receiw compensation for his service on the board. . . .ll The opinion reasoned that article 6813f, V.T.C.S., was intended to preempt only "law prescribing the amount of per diem relating to membership m a state board or commission." Because section 5.01(i) "prohibim" rather than "prescribes" the payment of any amount that does not represent reimbursement for expenses, the opinion concluded that the compensation section of the rider based on article 6813f did not apply. Similar considerations apply to the case at hand.
Section 112.015 specif,Les that "[clouncil members appointed under Section 112.012(c) or (d) of this code serve without salaq but are entitled to reimbursement for actual expenses. . . ." The flat rate compensatory per diem estxblished by subsection (1) of section 4 of article V of the General Appropriations Act clearly represents com- pensation for services rather than reimbursement for expenses. See Attorney General Opinion .JM-349 (1985). Although section 112.015 prohibits the payment of 'salaries" rather than of "compensation," we believe that the import of ,:hr provision is to prohibit payments which represent something otner than reimbursement for expenses. Accordingly, the members oE the council who are appointed according to section 112.012(c) and (d'l are not entitled to the compensatory per diem provided for in subswtion (1) of sectiun 4 of article V of the current General Appropriations Act.
SUMMARY Members of the Texas Planning Council for Developmental I~isabilities who are appointed pursuant to sectI.on 112.012(c) or (d) of the Texas Human Resources Code are not entitled to the compensatory per diem provided for in subsection (1) of section l+ of article V of the current General Appropria‘tions Act.
Jx&
JIM MATTOX Attorney General of Texas MARY KELLER
Executive Assistant Attornq General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Comittes
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
I