.




                                The Attorney          General of Texas

it4 MATTOX                                       November 20, 1985
                                                                       Overrules   in part MW-382
AttorneyGeneral


Supr~ma Cauct Building          Ronorable Bob Bul:Lock                  Oplnioo No. JM-382
P. 0. BOX 1254                  Comptroller of Pub:licAccbmts
Austin. TX. 7071% 2549          L.B.J. Building                         Ret   Per diem for menbers
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.,
4924 Albmls Ave.. SuitS 180     furnishes the basis for this rider.
El Paso. TX. 799052793
915lm3484                            Article 6813C provides in full:

  01 Texas. Suits 700                        Sect Lou 1. In this Act, ” state board or com-
rlouston. TX. 77002-3111                  UiSSiOll' means a board, commission, committee,
713.223-5886                              council, or other similar agency in the stats
                                          government that is composed of two or mere
                                          members.
806 Broadway, Suits 312
Lubbock. TX. 794014479
Sw747.5239                                   Sec. 2. A member of a state board or com-
                                          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
 512mS2.4!547                             the General Appropriations Act.

                                             Sec. 3. Each law prescribing the amount of per
 200 Main Plaza. Suite 400                diem rl:l.atingto membership on a state board or
 San Antonio. TX 782052797
                                          cossuissionis 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
    An Equal OppOrtUnityI                 diem to which a member of a state board or
    Afflrmrtivs Action EmPlOW             commission is entitled by law. the law prescribing
                                          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 Act.
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 for 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 Act.



     Thus, articIe 6813f c~llowsfor 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'hichpurports 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,atutesAnnotated, 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,:ualexpenses 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




                               p. 1747
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 for 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 conmxissionas
 “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;~icaall 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]rof 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




                                   p. 1748
Honorable   Bob Bullock   - Paw   4    (~11-382)




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.atutegoverning the Tax Board prohibited its
members from receiving ccnpensation for their service on the board.
Because article 6813f vati intended to 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:ludedthat the compensation section of the
rider did not apply.

      Thus, article 6813f preempts prior statutes only to the extent of
 confllct .  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 for 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:sexpenses, 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




                                      p. 1749
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 Act.  (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 inclucladboth 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’nApp. 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




                                 p. 1750
Eonorable Bob Bullock - Pags 6   (Jn - 382)




          limit on the numt’erof days for vhich a member-of
          a state board or-commission is entitled Co claim
          per diem. the lir2.tis 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 ncmtsuspended.

     A contrary interpretat.ionwould present problems because per dfem
which represents compensa,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:tsthis cdnclusion as veil:

          No employee paltl from funds appropriated by this
          Act shall be pa:Ltlboth 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 Act.

      Your third question is

           whether AttorneyrGeneral 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 to 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




                                 p. 1751
Roaorable   Bob Bullock       - Page 7    (JIG382)




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


                                         p. 1752
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
97-35).  Uo believe that the “error” is harmless because the provision
vhich is applicable is re;ldilydiscernible 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 Act.    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 ‘Legislatorsmay 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 to 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).




                                 p. 1753
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~isslonmembers 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 rneynot 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,stedpursuant 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’smembers are entitled to, would
           create an exception to article 6813f with regard
           to   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




                                 p. 1754
Eonornble Bob Bullock - Pngo 10     (JM-382)




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




                                       Ll /iLh
                                            Very truly your

                                                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




                                  p. 1755
