                             July 28, 1965


Honorable Robert S. Calvcrt
Comptroller of Public Accounts
Austin, Texas
                                    Opinion No. C- 472
                                    Re:   Construction of the term
                                          “counnercial hotel, motel,
                                          or other commercial lodg-
                                          ing establlehment~’ within
                                          the meaning of Section 15
                                          o? Article V of the Oeneral
                                          Appropriation Act of the
Ders Hr. Calvert:                         59th Leglalature.
       Your requqat for an opinion on the above subject matter
asks the followlpg questions,  in view of the provislonr of
parqraph a of Seution 15 of the @enerr Approprlatlc)n    A+
of the 59th Leglrlature:
              “Pleaw rdvlre &at rate of per diem
       should be allowed UndeP the following con-
       ditions?
               “1. Military property  auditors of the
       Adjutant Qeneral’s Dcpirtment while travel-
       Ing to Houston, San Antonio, Ikllas and El
       Pas0 stay at the reapeative mllit&ry baeea -
       Blllngton   Air POxye BaaOr Auckland Alr Force
       Ea;,z*;d      Pralr%e Naval Air Station and
                    .   These 8uditorCb   8re   oharged a
       small rate per night by these installations
       for their lodging.
               “2.   State emplogeen   ite often in
       traveling to educational anr eleemoaynarg
       institutions    in the performance of their
       duties obtein lodging at the, institutions
       visited,    for whloh a aharge 14 made for
       quarters.



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ii?& ~‘Robert S.   .CaJVePt,       page: 2 iC-472 )


              “Please define’ for ‘jne the teqn’oommer-
        clal hotel;~ motel and other, commapclal ,lodg-
        lng establlshmentsi”
       Paragraph a o$ Section 13 dC Artlcle:W of the Generai
AppropFiatlon Act of the 59th’Legislature   provides:
                ~“Ratea of allowance.     Each employee
       .traveling on State bueilness .lnslds the~boun-
        darles of the. State of Texas. shall be allow-
        ed,.. in lfreu of actual expenses .incurred for
        nso’ls and lodging;. 8 flat per diem r&ate of
        iiqt ‘to’+xoeed twelve dollars ($12) provided
        there 1s. attached. to hls’ expense account when
         submittgd. a, ,“Pald” :blll’ gr receipt from a
        cMaIercla1 hotel, motel, or other commeFcla1
        lodging qtablishment $or Ns lodglng,~ Qut
        ‘provided further that if .‘such receipt .is not
         submittrdr. the’ flat’ per. diem ,rate ahalL not
         exceed sevens dollars. ($7!. 1’.,
        Artlcla.~k906.         ‘Revladd   Civil   Statutea 61 !lkaa.   1925;.



                                                            In Merchanta’.Red
                                                               T19-11939 ,),.
                                                    Merchants Red Bok
Companjroonat%tuted’ a. ~dosiarc$al~ rtgency” br “oommerclal ;
reportl~:ccredit.ogsnC~”       rlthsn-fhe    pul’irian of Article 7al;
Revlegd Civil Statutes o?~Tali4~, 1925, which article provSded
for t~xtis, upon groea. receipts off certa$n ,btislnessea therain
named. In that.’case, lkwas held:
                V          It Bppeari with reasonable ;cert&in-
         tg that ‘tlie’ierps   .Um#cahtlle ggmcles’ and
         Vaommerclal.agencie6,‘~ bplng regarded ‘as ayn-
        ~onymt%a,.  ‘have .?or a.. long time had .a def*nlte
        meat&i@.. ‘See 40 Corpus, Jurls,~, p; 636.. 1~
         the case of Clty.of       Bzbokf%eld v. Kltahen, 163
        +a. 546, 63 6 .w. 825~, 826; the. ~Supreme-.      Court
         Of Ml8SOtrr1, sp(rakir~&~OiQXmunerciql or mer-
         Mntile’~.a&ncles, ! sa$$:“~.l.Such agen~eles are
         defined. to: be. eatablllihments which make a busl-
         nesa of aoUecting’ lnformatlon~rq~~tfng: to the
        ‘oredltl t2hrrae.t+ri -r&8#onslb.ilifji,     and repu-
         totlon of’. meirchants for. $hij puCpoae ol furnish-
        'irigthe lnformatlon to subsci%bera; -' e.g.
        ,Ri. Q.Dun & CQ~.~Agency; Bradstredt COmp&ny,.etc.
Hon. Robert S. Calvert,   page 3       (C-472 )


       5 Am. dc Eng. Enc. Law (let      Ed.) p. 280;
       Web.,Int.Mct.’
                *Corpus Jurl6 glvar the following deil-
       nltlon:    ‘A cosuwrclal or mercantile agency
       may be defined aa a person, firm, or corpor-
       ation engaged In the business of collecting
       Information as to the flnaWla1 etandlng,
       ability,    and credit of persons engaged In
       bualneemr and reporting the 8ame to subsarlb-
       era or customers applying and a I
       . . . f-emphaala by the Courg-            therefo?.’
              “TechnIcally .speaklng, It may be that
       the Legislature In the original enactment of
       Article 7061 had In mind just such agencies.
       We are lncllned to think,’ however, that the
       @eatIon   should not be determined.solely        from
       the fact that In one Instance the information
       furnished pertains to those engaged In busl-
       nesar while in the other It pertains only to
       curtomera or purchasers.       It is altogether
      ‘probable that a corporation or lndlvldual could
       engafse ln the buslneaa of collecting       at their
       own expense lnrormatlon concerning the credit
       rating of individual purqhasers and customer8
       and sell thlr InSormatlon to.retall        merohants,
       In the form of a red book or by repolrtr, or
       both, and build up a large and profitable          en-
       terprlse.    Sudh a buslneaa would then uridoubt-
       edly take on the character of a ~comerCIa1~
       credit- report      agencyr such am R.O. Dun &
       Co. and other ?mi
                       s     lar agencies undoubtedly
       are.   Obviously, auqh agencies come under the
       statute.    We think, however, the situation
       here is dlstlnatly     dltferent.     Thla enterprise
       1s undoubtedly so related to the conduct oi'
       the business of retail merchants as to really
       be an indispensable part of same, or an lIftpoP
       tant Incident thereto.             . Disregarding
       technical rules ot owner&h           It may appro-
       priately be said that tN8 business Is owned
       to as large extent by the subscrlbers,a8         by
       the Chlltona.      Ita oreatlon and existence haa
       been brought about by the cooperation of’ the
       merchant8 them&elves.       We da not .thlnk th&t
       the fact that ‘the Qhlltona are. paid rather
       substantially   for their servlcea makes this
       a fcommeraIall enterprise,        In the senae of


                              -2239-
    Honorable Robert S. Calvert,     page 4   (C-472   )

              being one organized and operated for profit
              to those who are it8 8010 promotem.    It is.
              more properly epeaklng a cooperative enter-
              prise between the Merchante Association and
              those who act in the aapaclty of managers,
              and for thla reason we do not think the Legis-
              lature Intended to tax a business of thle kind.”
              In view of the foregoing, It Is our opinion that the
    phraee !‘commerclal hotel, motel, or other commercial lodging
     eatabllshrfient” refers to those persons, firma, corpora@lanis,
     aasoclatlone or establishmenta, engaged in the business of
     furalrhlng~.lodglng to the public generally Par pay, and
    .does not include military lnstallatlons   of either the S&e
     or Federal Bovernment, nor does It Include educational 1s
     stltutlona or’eleemoeynery lnatltutlone   of the State.
            In anewer to your first question you are therefore
    advised   that when employeea o? the Adjutant Oeneral’s Depart-
    ment, while traveling on official    buslnessr obtain lodging
    at the reapectlve military baeea , such employees are entitled
    to reoelve $7 per dlemfor    t3avellng on State bualnees Inside
    t&e boundarlea of the State, rather then 412 per diem.      In”
.   anawelr to your second question,  you are advised that when
    State employees, while traveling on official    business, obtain
    lodging at educational or eleemoaynary Instl~utlonr o? the
    St&e, such employees are &titled      to receive $7 per diem for
    ~tzaveling inside the bounda&ee of the,, State on. State buel-
    need, rather than $12 per diem.


                                SUMMARY


                    The phraee “commercial hotel, motel, or
                    other aonnnerclal lodging aatabllehment”
                    ueed in subdivlalon a of SiWtlon 15 of       ,,
                    Article V of the Qeneral Approprlatlop
                    Act of the 59th Legielature,   Mtlatlng-t0
                    the ratee’of   allowance for State employees
                    traveling on State buainesa, refers to
                    thoee persotie, fira$, corpOratlonar a88o-
                    clatlona or eetabllahmente engaged In the
                    budnese of f’urnlshlng lodging to the
                    public generally for pays and doea not




                                   -2240-
Honorable Robert S. Calvert,    page 5.   (C-472      )


             Include military lnetallations    of either
             the State or Federal government nor educa-
             tionsl or eleem0eynerJr inetltutions    of
             the State.
                                  Yours very truly,
                                  WAQGONER CARR
                                  Attorney General



                                        John Reeves
JR:&
APPROVED:
OPINIONCOMMITTER
W. V. Geppert, Chalrman
Pat Bailey
Paul Phy
Arthur Sandlin
APPROVED
       FORTRE ATTORNEY GENERAL
BY: Hawthorne Phillips




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