                                  The Attorney         General of Texas
                                                November 10, 1981
MARK WHITE
Attorney General

                                                                               -w
                              Honorable Charles W. Evans. Chairman   Opinion No. MW-388
Supreme Court Building
P. 0. Box 1254S
                              House Comlttee on Government
Austin. TX. 70711               Organization                         Re: Per diem to be received
512/4752501                   P.O. Box 2910                          by Board of Nurse Examiners
Telex 91ola74.1367            Austin, Texas 78769
Telecopier  5W475.0266

                              Dear Mr. Evans:
1607 MaIn St.. sune 1400
Dallas. TX. 75201                  Article 4515, V.T.C.S.. applies to the Board of Nurse Examiners.
2141742-SS44                  As amended by Senate Bill No. 575, it provides in part as follows:

4824 Alberta AM.. Suite 180                 Each member of the board is entitled to a per
El Paso, TX. 79SO5                     diem as set by legislative appropriatton for each
91-                                    day that the member engages In the business of the
                                       board. A member may not receive any compensation
                                       for travel expenses. Including expenses for meals
1220 Dallas Am, Suile 202
Houston. TX. 77w2
                                       and lodging, other than transportation expenses.
71zYaQa66                              A   member  is entitled to compensation for
                                       transportation expenses as provided by the General
                                       Appropriations Act.
805 Broadway. Suite 312
Lubbock. TX. 79401
8061747.5238                  Acts 1981, 67th Leg., ch. 772,       at  2888.   The current General
                              Appropriations Act, however. provides that the per diem for members of
                              the Board of Nurse Braminers shall be:
4309 N. Tenth. Suite 6
McAllen. TX. 78501
51218824547
                                       actual expenses for meals and lodging plus an
                                       additional $100 for each day the member Is engaged
                                       in official business of the Board.
2-X Main Fbza, suire 400
San Antonio. TX. 78205        General Appropriations Act, Acts 1981. 67th Leg., ch. 875, art. I. at
5121225-4191
                              3460.

                              There is a conflict between article 4515, as amended, and this
                              appropriations act provision. You ask whether the former or the
                              latter controls.

                                    We recently addressed a similar question raised by the Texas
                              Amusement Machine Commission. See Attorney   General Opinion MW-365
                              (1981). The commission's inquiry stemmed from a similar conflict
                              between amended article 4413(41). V.T.C.S.. and        the current
                              appropriations  act provision which applies to the commission. We
Mr. Charles W. Evans - Page 2    (Mw-388)



there held that to the extent that article 4413(41) and the
appropriations act provision could not be reconciled, the former
controlled.

     House Bill No. 957, also passed by the Sixty-seventh Legislature,
has been brought to our attention. It enacts article 6813f. V.T.C.S.,
which provides as follows:

              Section 1.   In this Act. 'state board or
         cosmkssion' means a board, commission, committee.
         council, or other similar agency In the state
         government that is composed of two or more
         membere.

              Sec. 2. If a member of a state board or
         commission Is entitled by law to per diem relating
         to the member's service on the board or
         commfssion, the amount of per diem is the amount
         prescribed by the General Appropriations Act.

              Sec. 3. Each law prescribing the amount of
         per diem relating to membership on a state board
         or ctission    is suspended 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 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 bpard or
         commission is entitled to claim per diem, the
         limit is not suspended by this Act.

Acts 1981. 67th Leg., ch. 428, at 1840-41.     Article 6813f   became
effective on August 31.

     Attorney General Opinion MW-365 did not consider article 6813f.
For the following reasons, however. we conclude that this new statute
dictates a different result than we reached in that opinion, and that
it also controls your question.

     Article '6813f specifies that the per diem of an eligible state
board or commission member shall be the amount prescribed by the
General Appropriations Act.        Sec. 2.     It suspends each lav
prescribing the amount of a board or commission member's per diem to
the extent of conflict. Sec.    3.    To determine its impact, we must
first ascertain the meaning of the term "per diem" as used therein.
We must then determine its effect upon statutes such as articles
4413(41) and 4515.

     In the past, "per diem." at least as used in Texas statutes, has
denoted a fixed dally rate payment provided in lieu of, or in addition




                                D. 1318
Mr. Charles W. Evans - Page 3    (MU-388)




to,  actual expenses such as those for meals and lodging. Actual
expenses, in other words, have not been regarded as part of one's per
diem. See, e.g.. V.T.C.S. art. 6823a; former article 4515. Were it
not for its explicit reference to the appropriations act, we would
conclude that article 6813f does not purport to redefine this term.
Article 6813f provides, however, that the amount of “per diem" to
which a board or commission member is entitled shall be the amount
prescribed in the appropriations act. And as we have noted, the
appropriations act provides that "per diem" consists of:

          actual expenses for meals and lodging plus an
          additional $100 for each day the member is engaged
          in official business of the Board.

Acts 1981, 67th Leg., ch. 875. art. I. at 3460.

     We believe the wording of article 6813f and this appropriations
act provision plainly reflects a legislative intent to adopt, for at
least the two year biennium, a more expansive definition of "per diem"
which embraces both actual expenses for meals and lodging and a flat
daily rate paymZX    We believe it is clearly within the province of
the legislature to define "per diem" in these terms. Furthermore, we
perceive no constitutional or other barrier to its doing so In this
manner. Accordingly, we conclude that "per diem." as thus defined,
becomes controlling by virtue of general law represented by article
6813f.

     The remaining question concerns the relationship between article
6813f and statutes such as articles 4413(41) and 4515. As a general
rule, statutes enacted during the same session of the legislature will
be harmonized so that all may stand together. Wright v. Broeter, 196
S.W.2d 82 (Tex. 1946); Martin v. Sheppard, 201 S.W.2d 810 (Tex. 1947).
Harmony cannot be achieved, however, where there is an absolute
repugnancy between or among ,the statutes in question. Wright v.
Broeter, supra; see also Jefferson County v. Board of County and
District Road Indebtedness, 182     S.W.2d 908 (Tex. 1944).       Such
repugnancy obviously exists here: article 6813f expressly authorizes
reimbursement for expenses which statutes such as articles 4413(41)
and 4515 expressly forbid.

     In any instance involving the construction of a statute, or of
several statutes. the dominant lnquirv must necessarilv be: what did
the legislature-intend?    Jessen' Associates.  Inc. v: Bullock, 531
S.W.Zd 593 (Tex. 1975); Calvert v. Texas Pipe Line Co., 517 S.W.2d 777
(Tex. 1974). In ascertaining legislative intent. one may consider the
history of the subject matter, the end to be attained, and the
purposes to be accomplished. Calvert v. Fort Worth National Bank. 356
S.W.2d 918 (Tex. 1962); Carroll v. Bullock, 530 S.W.2d 135 (Tex. Civ.
AUP. - Austin 1975. no writ).      In our oninion. there can be no
question that article 6813f expresses the iegislature's intent with
regsrd to the subject of per diem. It appears certain. moreover, that
the precise reason for its enactment was to override conflicting
Mr. Charles W. Evans - Page 4   (MW-388)



provisions regarding per diem in statutes such as articles 4413(41)
and 4515.

     It has been suggested that inasmuch as article 6813f is a
“general” statute and articles 4413(41) and 4515 are “special”
statutes, the latter must prevail, on the theory that special statutes
more accurately reflect the legislature’s intent. But this is not a
hard and fast rule. As the court observed in City of Lake Dallas v.
Lake Cities Municipal Utility Authority, 555 S.W.2d 163. 168 (Tex.
Cfv. App. - Fort Worth 1977. writ ref’d n.r.e.):

          But it is well settled that provisions in a
          general act will not control those in a local or
          special act unless there is clear evidence of such
          legislative Intent. (Citation omitted). In the
          absence of clear evidence that the Legislature
          intended the general law to control. the local or
          special act is deemed the more accurate reflection
          of legislative intent.  (Emphasis added).

And as the court noted in International Fidelity Insurance Company v.
Sheriff of Dallas County, 476 S.W.2d 115. 118 (Tex. Civ. App. -
Beaumont 1972, writ ref’d n.r.e.) , a case in which counsel argued that
special statutes prevail over general sets:

         Neither party cites to us some of the other rules
         governing statutory construction; namely, that the
         objective of the court, when called upon to
         construe legislative enactments, is to ascertain
         the purpose of the legislature in the enactment of
         the laws relating to the particular matter; and.
         the intention of the legislature is to be
         ascertained from the language of the statutes and
         to give effect to all laws bearing upon the same
         subject....

See also E. Crawford, Construction of Statutes SSl67, 230 (1975).

     As we have noted, the clear intent of article 6813f Is to
supercede conflicting provisions regarding per diem in statutes such
as articles 4413(41) and 4515. In light of this, it is apparent that
article 6813f not only should, but must prevail, to the extent of
conflict, over these statutes. To conclude otherwise is to render the
statute meaningless, and thus to ascribe to the legislature an intent
to ensct an ineffectual statute.      “We should not interpret the
[statute] so as to convict the legislature of foolish and futile
action.” State ex rel. Childress v. School Trustees of Shelby County,
239 S.w.2d 777. 781 (Tex. 1951).

     We therefore conclude that the Board of Nurse Examiners is
subject to the per diem provisions of the General Appropriations Act.
Mr..Charles W. Evans - Page 5     (MW-388)



                                SUMMARY

              The Board of Nurse Examiners is subject to
         the per diem provisions set forth in the General
         Appropriations Act.    Attorney General Opinion
         MW-365 (1981) is modified to the extent that it
         dictates a different result.



                                          =,y




                                           MARK      WHITE
                                           Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICRARB E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Bill Campbell
Rick Gilpin
Jim Moellinger
