                       September 16, 1988




Mr. Vernon M. Arrell               Opinion No.   JM-954
Commissioner
Texas Rehabilitation Commission    Re: Per diem for members
118 E. Riverside Drive             of the Board of Texas Re-
Austin, Texas 78704-9982           habilitation   Commission
                                   and its subordinate  com-
                                   ponents (RQ-1330)

Dear Commissioner Arrell:

     you ask about the per diem to be paid to members of the
Texas Rehabilitation Commission as well as the per diem to
be paid to members     of several subordinate    or related
committees, councils, and advisory boards.

     Article 6813f, V.T.C.S., is a general provision dealing
with per diem for members of "state boards or commissions.11
Article   6813f, which was originally    enacted   in  1981,
provides:

           Sec. 1.   In this Act, "state board or
        commission11 means   a   board,   commission,
        committee, council, or other similar   agency
        in the executive or judicial branch of state
        government that is composed of two or more
        members.

           Sec. 2.   (a) A member of a state board or
        commission is entitled to per diem relating
        to the member's    service on the board or
        commission.   The amount of the per diem is
        the amount     prescribed   by   the   General
        Appropriations Act.

            (b) This section does not apply to a
        member of the legislature who serves on a
        board or commission by virtue of the member's
        position as a legislator.

           Sec. 3. Each law prescribing the amount
        of per diem relating to membership on a state
        board or commission    is suspended   to the



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Mr.   Vernon   M. Arrell - Page 2    (JM-954)




           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 law,
           the law prescribing the amount of per diem is
           not suspended by this Act. If a law imposes
           a limit on the number of days for which      a
           member of a state board or commission       is
           entitled to claim per diem, the limit is not
           suspended by this Act.

See aener llv Attorney     General Opinions JR-888    (1988);
JR-426 (19t6) ; JM-382, JR-349 (1985); MW-388 (1981).

     The current appropriations       act       sets out the   following
per diem allowances:

              Sec. 4. PER DIEM OF BOARD OR COMMISSION
           MEMBERS.  a. 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) com-
           pensatory per diem at $30 per day: (2) actual
           expenses for meals and lodging not to exceed
           $75 per day: and (3) transportation.

              b. If a law enacted after Article    6813f
           authorizes per diem for members of a particu-
           lar state board or commission, but does not
           specify the amount of the per diem, then the              .
           amount of the per diem shall be as listed  in
           the preceding paragraph.

General Appropriations Act, Acts         1987, 70th Leg., 2d       C.S.,
ch. 78, art. V § 4(a), at 820.

     you first ask how much members    of the board of the
Rehabilitation Commission are entitled to receive for their
expenses.   Section 111.015 of the Human Resources Code was
amended in 1985 to provide as follows:

              (a) Board members   [of the Rehabilitation
           Commission] are entitled to reimbursement for
           actual and necessary expenses incurred in the
           discharge of their official duties and the
           compensatory  per diem ~-authorized by     the
           General Appropriations Act for each day at an
           official meeting as authorized by the board.

              (b) A member of the board who is disabled
           and who, because of the disability,  requires
           special aids or travel attendants is entitled



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      Mr. Vernon M. Arrell - Page 3     (JM-954)




              to reimbursement for the cost of the       special
              aids or travel attendants.

      The prior version of section 111.015 provided:

                 Board members   serve without  compensation
              but are entitled to reimbursement for actual
              and necessary    expenses   incurred  in   the
              discharge of their official duties.

      Act6 1979, 66th Leg., ch. 842, at 2421.

           The Rehabilitation Commission and the Comptroller agree
      that a statute passed after the enactment of article     6813f
      that sets per diem for a particular board prevails        over
      article 6813f. However,    the Rehabilitation Commission   and
      the Comptroller   disagree  about the   effect of the 1985
      amendments to section 111.015 of the Human Resources     Code.
      The Rehabilitation Commission   takes the position that the
      original version of section 111.015, which authorized actual
      expenses, was superseded by article 6813f, but that the 1985
      amendments reenacted the authorization for actual expenses
      and made section 111.015 a later enactment      than article
      6813f. The Comptroller argues that the 1985 amendments      do
.-.   not make section 111.015 a later enactment than 6813f for
      purposes of determining the amount of expenses      to which
      board members   are entitled.    The Comptroller   bases his
      argument on the fact that the 1985 amendment left the words
      regarding actual expenses unchanged.

           The Board of Irrigators        raised essentially    the same
      argument in Attorney General Opinion JR-888 (1988). In that
      opinion we considered      a 1985 amendment       to the statute
      governing per diem for members       of the Board of Irrigators.
      That amendment    replaced    language allowing $25 a day in
      compensatory per diem with a reference            to the General
      Appropriations Act; but it retained the exact language           of
      the prior version regarding      actual expenses. We concluded
      that the 1985 amendment reenacted the authorization             for
      actual expenses because the statutory           reference   to the
      appropriations    act    eliminated    any    argument  that    the
      legislature   was     unaware    of    the    existence    of   the
      appropriations act and the conflict on the appropriations
      act provisions and the provisions of section 111.015.            We
      concluded, therefore, that the statute governing the Board
      of Irrigators prevailed over article 6813f. The reasoning
      of Attorney   General Opinion JR-888 applies to the 1985
      amendment to section 111.015 of the Human Resources           Code.
      Therefore, we conclude that the provision authorizing actual
      travel expenses    for board members       of the Rehabilitation
      Commission has been reenacted and that the board members are
      entitled to reimbursement for actual expenses.



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Mr. Vernon M. Arrell - Page 4    (m-954)




     you next ask whether members of the Consumer Advisory
Committee of the Rehabilitation   Commission are entitled   to
actual expenses.  The committee   is established pursuant   to
section 111.016 of the Human Resources Code. Subsection (d)
of section 111.016 provides   that the committee members   are
entitled to reimbursement for actual and necessary expenses.
Before 1985, section 111.016 permitted the Rehabilitation
Commission to set up advisory committees.      In 1985 it was
amended to require the Rehabilitation Commission to set up a
consumer advisory  committee, and the commission's     general
authority to set up advisory committees was deleted.      Acts
1958, 69th Leg., ch. 603, at 2273.          Before the 1985
amendment subsection (d) of section 111.016 provided:

           The members   of the advisory    committee
        serve without compensation  but are entitled
        to reimbursement  for actual and necessary
        expenses incurred in attending the official
        meetings of the advisory committee.

Acts 1969, 61st Deg., ch. 40, 5 5(b), at 105; Acts 1971, 62d
Leg., ch. 405, 5 54(2), at 1533. The 1985 amendment changed
subsection (d) to read as follows:

           The members   of the consumer     advisory
        committee are entitled to compensatory     per
        diem authorized by the General Appropriations
        Act for each day engaged in the performance
        of their duties as directed by the board and
        to reimbursement  for actual and necessary
        expenses incurred in attending the official
        meetings of the consumer advisory committee.

Again, for the reasons set out in Attorney General   Opinion
JM-888, we conclude that the 1985 amendment reenacted    the
provision regarding actual expenses and that the members  of
the   Consumer   Advisory   Committee   are   entitled    to
reimbursement for actual expenses.

     your third question     *   whether   members of    the
Governor's Committee for Dis%ed    Persons are entitled   to
receive reimbursement for actual expenses.   The Governor's
Committee for Disabled Persons was reestablished      by an
executive order issued on October 5, 1987. Executive   Order
No. WPC 87-16    (1987).  The executive  order provides   in
section 11-3:

        APWINTED   committee   members  shall   serve
        without pay, but shall be entitled to actual
        and necessary expenses  incurred in perform-
        ance of COMMITTEE business, such business  to
        include attendance   at Committee meetings,



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     Mr. Vernon M. Arrell - Page 5   (JR-954)




             telephone calls to conduct Committee    busi-
             ness, and attendance at functions to offi-
             cially represent   the Committee,   but such
             expenses shall be limited to funds available.

     In Attorney General Opinion JM-382 (1985) we concluded   that
     the per diem provisions of article 6813f, V.T.C.S., apply to
     boards and committees established  by executive order.    The
     governor has no power to change existing law merely  by issu-
     ing a proclamation.     T.errell  Wells Swimmina    Pool   V.
     Rodriw     182 S.W.2d 824, 827 (Tex. Civ. App. - San Antonio
     1944, wri.4 ref'd).   Therefore, absent specific    statutory
     authority to do so, the governor may not set a per diem for
     a board or committee that conflicts with the general law set
     out in article 6813f. The members of the Governor's Commit-
     tee for Disabled Persons are therefore    entitled to reim-
     bursement for expenses subject to the limitations set out in
     the appropriations act.

          You next ask whether members of the State Independent
     Living Council are entitled to compensatory     per diem and
     reimbursement for expenses.   Federal law provides that each
     state receiving federal funds for the provision of independ-
     ent living services   for the disabled must set up a State
     Independent Living Council.    29 U.S.C. § 796d(a)(l).      See
     aenerallv 29 U.S.C. §§ 796-796i. The federal statute       sets
     out the qualifications for membership on the council        and
     provides that the state agency designated      under section
     796d(a)(l) is responsible for appointing the members of the
     council. We assume that the Rehabilitation Commission        is
     the agency designated in section 796d(a)(l). See Hum. Res.
     Code 65 111.051, 111.053; 40 T.A.C.' § 101.1; ch. 107    (inde-
     pendent living).    In Attorney General Opinion JM-382 we
     concluded that the provisions    of article 6813f apply to
     state committees created pursuant to agency authority.      The
     Independent Living Council is apparently such an agency.
     See aenerally Hum. Res. Code g 111.053 (commission may adopt
     methods of administration found necessary by federal govern-
     ment); 5 111.054 (Rehabilitation Commission may comply with
     any requirements necessary to obtain federal funds). Absent
     specific authority, however, an agency may not enact a rule
     allowing reimbursement for expenses in excess of the amount
     authorized by article 6813f and the appropriations act. See
     Attorney   General Opinion JM-457     (1986) (providing that
     agency rules may not conflict with statute).        Therefore,
     members ,of the Independent Living Council are entitled      to
     reimbursement for expenses as provided by the appropriations
     act. We also conclude that members        of the Independent
     Living Council are not entitled to compensatory per diem in
.-   the absence of a specific statute authorizing     compensatory
     per diem. &S Attorney General Opinion JM-382 (1985).




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Mr. Vernon M. Arrell - Page 6        (JM-954)




     You also ask about per diem for members             of the
Deaf-Blind Advisory   Committee,   which was created by the
commission   pursuant  to   the commission's     authority    to
establish   programs  to help deaf-blind       multihandicapped
individuals.   Hum. Res. Code 5 113.001. Because there is no
specific   statutory  authority    governing   the    committee,
article 6813f is applicable.    Thus, the members are entitled
to reimbursement   for travel expenses as provided       in the
appropriations   act,   and   they are     not     entitled   to
compensatory per diem.

     You also ask about per diem for members of the State-
wide Steering Committee, which was established pursuant to a
Senate Concurrent Resolution.     Acts 70th Leg., S.C.R.     135.
It is composed of representatives of various agencies,        and
its purpose is to report to the legislature.     The resolution
is silent as to compensatory per diem and reimbursement       for
expenses.     Because all the members of the committee        are
apparently employees or volunteer     agents of specific    state
agencies, we conclude that the committee is in the executive
branch and that article    6813f is applicable.   See    V.T.C.S
art. 6813f, 5 1. (per diem provisions of article 6813f not
applicable to committees in the legislative branch).       There-
fore, committee members    are~entitled   to reimbursement    for
expenses in     accordance   with    the provisions     of    the
appropriations   act,   and    they are     not   entitled     to
compensatory per diem.

     Your final question. regards the Medical   Consultation
Committee.  You provide the following information about the
committee:

        The Medical Consultation Committee created by
        the Commission pursuant   to Section  111.052,
        Human Resources Code, V.T.C.A., the member-
        ship of which is appointed by the Commission-
          . This Committee is a group of medical
        Ezactitioners  that meet at various      times
        during the year to provide consultation     on
        medical matters to the Commission and as such
        are reimbursed in accordance with Art. 664.4,
        Professional Services   Procurement  Act, and
        the provisions of attachment G.

We assume that the.committee was created either pursuant     to
subsection (b)(6) of section 111.052 of the Human Resources
 Code, which permits the rehabilitation commission to "con-
 tract with   . . . doctors . . . for training,       physical
 restoration,   transportation,    and   other  rehabilitation      -
 services,"   or pursuant    to the more general    subsection
 (b)(3), which authorizes the Rehabilitation Commission      to
 contract with   individuals   as necessary  to implement   the



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    Mr.   Vernon M. Arrell - Page 7     (JM-954)




    provisions of Chapter   111 of the Human Resources      Code.
    Those provisions  and your reference   to the Professional
    Services Procurement Act suggest that the the physicians   in
    question have contracted with the Rehabilitation  Commission
    to provide professional services.  If so, they are entitled
    to payment in accordance with the terms of their contracts.

                            SUMMARY
                Members   of   the board     of the    Texas
             Rehabilitation   Commission   are entitled   to
             reimbursement for actual expenses incurred in
             the discharge   of their duties. Members     of
             the Consumer Advisory       Committee  of   the
             Rehabilitation   Commission   are entitled   to
             reimbursement for actual expenses      incurred
             in attending official meetings.     Members  of
             the Governor's Committee for Disabled Persons
             are entitled to per diem for expenses subject
             to the limitations set out in the appropria-
             tions act. Members of the State Independent
             Living Council, members of the Deaf-Blind
             Advisory   Committee,  and    members  of   the
             Statewide Steering Committee are entitled    to
             per diem     for expenses     subject to    the
             limitations set out in the appropriations act
             and are not entitled to compensatory        per
             diem.




                                           JIM     MATTOX
                                           Attorney General of Texas

    MARYEELLBR
    First Assistant Attorney General

    LQU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAELEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Sarah Woelk
C
    Assistant Attorney General




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