                                 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
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        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
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    Mr. Ron P6tterson   - P6ge 5




    APPROVED:
    OPINION COMMITTEE

    Rick Cilpin.   Chairman
    Colin Carl
    Susan Garrison
    Tony Guillory
    Jim Hoellinger
    Jennifer Riggs
    Nancy Sutton




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