                           Arrs~xiw ,&TEXAS


                            October 6, 1965


      Honorable Robert S. Calvert      Opinion No. C-522
      Comptroller of Public Accounts
      Austin, Texas                    Re:    Whether a rooming house
                                              qualifies as a commercial
                                              lodging establishment as
                                              that term is used in Section
                                              15 of Article V of the
                                              General Appropriation Act
                                              of 1965 and related ques-
      Dear Mr. Calvert:                       tions.

                Your request for an opinion on the above subject matter
      asks the following questions, in view of the provisions of para-
      graph (a) of Section 15 of the General Appropriation Act of the
      59th Legislature:

               "1. Does a rooming house qualify as a
          commercial establishment?

               "2. Does an apartment qualify as a com-
          mercial establishment?

               "3. If you hold that the renting of an
          apartment follows within the definition of
          'commercial lodging', what would two or more
...       State employees renting and living in the same
          apartment be entitled to for reimbursement on
          a per diem basis?

               "4. At what rate of per diem would an em-
          ployee.'beentitled to who secures lodging at
          YMCA, YWCA, and membership clubs?

               "5. Would a statement or billing received
          as a result of the use of a credit card from a
          company other than a commercial hotel, motel, or
          other coannerciallodging establishment, entitle
          the employee to qualify under the $12.00 per
          day per diem rate?"
                                 -2457-
                                                                                              -.
                                        .




                          Hon..Robert S. Cslvert, page,2 (Ce522 1



            .,.            ,,This office in Opinion,~NoVo.
                                                       C-472 defined .a,"comer&aP
.~ ;              ~eatabliahxaantt'
                                  aa~followa: :

                                      "In i&w   of ~the foq*goiig,, .it iS ciar op+lon
                           that thb phrase ‘comnerciai .h'otelr mot,el,or other
                          cokaarcial lodging eatabliahment,~   refers  to.thoae'
                           puqtia,    firm,' corporations;,aaaocfati~ona or .,
                          -'eatabliahmatitar engagsd in the buaineaa of furnish-
                           inglodging to the public gazketallyfor pay, '* D .'I :
                    .~,' ~,
                     ,'
                                 ~A8 p&nted'.out in .theabo+o$inion, UArtlcle 4596,
                   Raviaod~.Civil~Statutea.of     Texaa, 1925,.deftneaa hotel or inn as
                    *&place'whereItha,buaineaeis.,@ furnish f&d and lodgin4 or
                   of&d; to 'allwho,kp~l~ and.wy theragor.“’           (EnWaai? added.)
                  ,100l.uch, ra8trlction.I8placed on the.tem Wnmercia1 lodging
                   aatabli9hmaRt"; The only roQaireuunti       ,of the latter are that >
                    tli~.~mfurriiali  lodg,ingto,the.vublicasnerallv for MY 0I4
                  '.(Nmphaaiaadded,)

                              ",Applyingthe,above.definitfonto questions 1, 2,.and
                    4, rooming houaea,'apartmanta,and YMCAla~and YWCA's fail within
                    tha .definitionof "cokercial loQq.ing~establishment".    Conae-
                   .q~~tlf,c~any    State employae who mat remain out of town in order
                    ~to~perfbrm his,duties for either a .dayor,aeveralmonths and
                  .,+18&a .to.   stay at one ,ofthe above,:18entltled'to~
                                                                        twelve dollars
                          (S&2) pur ‘diem.

                                     .Quaationnumber 4 doaa',notreveal the typa membership
              .. cl&~             to'which you ark referring. '.Ifmeaberahip~is~bothlimited
                          and la d pre~aquiaitefor.using tha facilitiea,ofthe club, its
                          is ,not’ R,,Comaaklaleatabliahmnt~open to the.Q&UC even though
                          it my 'requireiemReration.frm, tha individualmember who stays
                          overnight.''For example, a 'socialfraternitywould be a amber-
                          tih,ip .clubwhich w.ould.furniah -lodging,
                                                                   to its itinerant'mcmbera
                          for pay'buttiould'notbe a coma~oiel establishmentyithin the
                   ~.above hef inition.
  .~                        :.                                                 '.
                           .In a&wer.to queatiofinun&et 3,~paragraph (e) of
              ..'...'&ioR~
                         i5 of.~Aiticle,'Vof~the general Appropriatfou~,Act
                                                                          of the
                 59th LugUlatutr.  ptoyldea:
       .,

                  .‘~~,
                                       'IRateabf ,allcwance.:Nach employee traveling
                                 .o@ #t$te buainaaa.inside the bouudRri& of me
Hon. Robert S. Calvert, page 3 (C-522 )



    State of Texas shall be allowed, in ,lieu of actual
    expenses incurred for meals and lodging, a flat
    per diem rate not to exceed twe~&vedollars ($12)
    provided there is attached to his expense account
    when submitted a 'Paid' bill or receipt from a
    commercial hotel, motel, or other commercial
    lodging establishment for his lodging, but pro-
    vided further that if such receipt is not sub-
    mitted, the flat per diem rate shall not exceed
    seven dollars ($7)."

           Section 15 of Article V places no limitation on the
actual cost of lodging: it merely requires that the State em-
ployee has paid for his lodging and such payment is evidenced
by a "Paid" bill or receipt from a commercial hotel, motel, or
other commercial lodging establishment in order to qualify for
the twelve dollar ($12) per diem rate. When two or more State
employees are renting and living in the same apartment, each
employee's expense for lodging is that portion which he pays
of the total bill. Upon the submission by the State employee
of a "Paid" bill or receipt, or copy thereof, indicating that
the employee was one of the tenants, he will qualify for the
twelve dollar ($12) per diem rate for the days covered by the
receipt.

          Article 155533,Vernon's Texas Penal Code, defines
credit card as follows:

          "Sec. 3.  The term 'credit card' as used
     herein means an identification card, plate,
     coupon, book, device or number issued to a per-
     son, association of persons, or corporation by
     a person,or business organization which permits
     such person, associations of persona, or cor-
     porations to attempt to obtain, or obtain, or pay
     for items of value or services of any type, ir-
     respective of whether such items of value or
     services can be obtained or paid for bv a credit
     card issued by the person or business organization
     offering the items of value or services or by
     another person or entity engaged in providing
     credit facilities for said person or business
     organization." (Emphasis added.)
                           -2459-
Ron. Robert S. Calvert, page 4 (C-522 )



          The credit card represents a contract between the
credit card holder and the issuer of the card. Once the credit
card holder has used the card, he becomes liable to the issuing
company.  Texaco, Inc. v. Goldstein, 229 N.Y.S.2d 51, 34 Misc.26
751 (Municipal Court of New York, 1962). Similarly, the issuing
company becomes liable to the ,partywho accepted the card. As
between the credit card holder and the party accepting the cre-
dit card, the holder is relieved Of further liability and for
purposes of Bection 15 of Article V the accepting party has been
"paid" thus qualifying the Gtate employee for the twelve dollar
($12) per diem rate upon the presentation of the statement or
billing received from the company issuing the credit card.

                         SUMMARY

          Apartments, boarding houses, YWCA's, and
    YEA"8 are commercial establishments and State
     employees are entitled to the twelve dollar ($12)
     per diem rate upon presentation of a "Paid" bill
     or receipt from one of the above. A membership
     club, that is limited as to its membership, and
     membership is a prerequisite for using the facili-
  -,.ties of the club, is not a "commercial lodging
     establishment" as that term is used in Section 15
     of Article V.

         TWO or more State employees may occupy the
     same apartment and qualify for the twelve dollar
     ($12) per diem rate upon the presentation of a
     "Paid" bill or receipt, or copy thereof, which
     indicates that they were tenants.

         A statement or billing received as a re-
    sult of the use of a credit card from a company
    other than a commercial hotel, motel, or other
    commercial lodging establishment entitles the
    employee to qualify under the twelve dollar ($12)
    per diem rate for the days covered by the bill
    or statement.




                           -24&J-                                  t
I-Ion,
     Rbbert S. Calvert, page 5 (C-522 )



                                    Very truly yours,

                                    WAGGONER CARR
                                    Attorney General




                                        Wade Anderson
                                        Assistant

WA:ra

APPROVED:
OPINION COMMITTEE

W. v. Geppert, Chairman
Malcolm Quick
Dougless Chilton
Linward Shivers

APPROVED FOR THE ATTORNBY GENERAL
By: T. B, Wright
