                                 The Attorney’ General of Texas
                                                  :?obruary13, 1986
JIM MATTOX
Attorney General


Supreme Court Building           Mr. Roger D. Shipman                  Opinion No.JM-426
P. 0. Box 12548                  Executive Secretmy
Austin, TX. 78711-2548           Taxas Board of Veterinary             Be: Per diem for members of
5121475-2501
Telex 910/874~13S7
                                    Medical Examinfm                   the Board of Veterinary Medical
Telecopier   51Z475.0266         3810 Medical Parkway, Suite 119       Examiners
                                 Austin, Texas   7t:756
714 Jackson, Suite 700
                                 Dear Mr. Shipman:
Dallas, TX. 75202-4506
2141742-8944
                                      You seek cla:r%ficationof Attorney General Opinion JM-382 (1985)
                                 with regard to rc~Lmbursement of expenses for members of the Texas
4824 Alberta Ave., Suite 160     Board of Veterinary Medical Examiners. In specific, you ask whether
El Paso, TX. 79905-2793          Attorney General (IpinionJM-382 compels the conclusion that members of
91515353484
                                 the board are not entitled to any reimbursement for the meals and
                                 lodging portion of travel expenses incurred in the performance of
1001 Texas, Suite 700          : their official duties.
Houston, TX. 77W2.3111
7131223-5886                          Attorney Gemral Opinion JM-38i answered saveral questions about
                                 the scope of art:lcle 6813f, V.T.C.S., and of an Appropriations Act
806 Broadway, Suite 312
                                 rider which implements article 6813f. See General Appropriations Act,
Lubbock, TX. 79401.3479          Acts 1985, 69th I,e.g.,ch. 980, art. V.4,    at 7761. Article 6813f
SGW7476230                       provides in full:

                                              scct:.on 1. In this Act, 'state board or corn-
4309 N. Tenth. Suite S
McAllen, TX. 7S5Ol.lS55
                                           mission' means a board, comslissioYY,comittee,
5121682-4547                               council:, or other similar agency in the state
                                           govenm:rt    that is composed of two or more
                                           members.
200 Main Plaza. Suite 400
San Antonio, TX. 752052797
512&?25-4191
                                              Sec. 2.   A member of a state board or comnis-
                                           sion ie entitled to per diem relating to the
                                           member's? service on the board or commission. The
An Equal OpportUnitYl                      ammnt tz'the per diem is the amount prescribed by
Affirmative Action Employer
                                           the Genczal Appropriations Act.

                                              sec. 3. Each law prescribing the amount of per
                                           diem relating to membership on a state board or
                                           commiss:~~nis suspended to the extent of a con-
                                           flict w:T:hthis Act. If the General Appropriations
                                           Act doe:;not prescribe the amount of per diem to
                                           which a :nember of a state board or coumisoion is



                                                          p. 1951
                                                                         t


Mr. Roger D. Shipman - Page!2 (JM-426)




         entitled by law, the law pr?scribing the amount of
         per diem is not suspended by this Act. If a law
         imposes a limit #)n the number of days for which a
         member of a stats?board or commission is entitled
         to claim per diem., the limft is not suspended by
         this Act.  (Emphnr~isadded).

     Section 4 of article V of the current General Appropriations Act
implements this statute by prescribing per diem:

            PER DIEM OF BOARD OR COMMISSION MEMBERS. As
         authorized by Swtion 2 of Article 6813f, Texas
         Revised Civil Statutes Annotated, the per diem of
         state board and commission members shall consist
         of (1) the anoun1;1of compensatory per diem at $30
         per day; (2) act@   expenses for meals and lodging
         as authorized try this Act not to exceed the
         maximum amount rJlowed as a deduction for state
         legislators while away from home during a
         legislative sesc;ion as established pursuant to
         the Internal Rcwnue    Code 26 U.S.C.      Section
         162(1)(1)(B)(11); and (3) transportation. In the
         event the maximrta~Wunt    allowed as a deduction
         for. state legisLatora pursuant to the Interhal
         Revenue Code as provided above is raised to an        *
         amount above $lOO:,the maximum amOunt of meals and
         lodging portion DE 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 conuuisr~ionmembers include compensatory
          per diem only.     No employee paid from funds
          appropriated by this Act shall be paid both a
          salary and compnmatory per diem for concurrent
          service as a state employee and as a board or
          commission member,, (Emphasis added).

Thus, the term per diem here includes three components: compensation,
reimburseanentfor meals an'ilodging, and reimbursement for transporta-
tion.

     You are concerned about whether this rider applies to members of
the Board of Veterinary M~?dicalExaminers or whether section 5(h) of
the Veterinary Licensing Act, article 7465a, V.T.C.S., applies.
Section 5(h) provides:

             Each Board member is entitled to a per diem as
          set by legislati?a appropriation for each day that




                             p. 1952
Mr.   Roger D. Shipman - Page 3    (JM-426)




           the member enga$:esin the business of the Board.
           A member may nEt receive any compensation for
           travel sxpenses, including expenses for meals and
           lodging, other zhan transportation sxpenses. A
           member is entitlEi to compensation for transporta-
           tion expenses as pres&ibed       by the G&era1
           Appropriations AX.   (Emphasis added).

You indicate that the comptroller is refusing to reimburse board
members for meals and lodging based on this section and on language in
Attorney General Opinion 34-382.

     Apparently, the compzroller is relying on our response to his
third and fourth question:3in Attorney General Opinion m-382.  His
third question was

           whether Attorney General Opinion MU-388 is still
           valid as it appltes to article 6813f repealing any
           statute which LLmits the amount of travel reim-
           bursement to whi-11a board msmber is entitled.

Attorney  General Opinion JM-382. responded that the reasoning in
Attorney General Opinion JM-349 (1985) limited the broad language in
Attorney General Opini& Ml-388 (1980).

     Attorney General Op,lnion MW-388 examined article 6813f and
determined that the legislature intended article 6813f to override
conflicting statutes regarding per diem. Thus, a limit on the Board
of Nurse Examiners, that s “member may not receive any compensation
for travel expenses, inclrdlingexpenses for meals and lodging, other
than transportation expenc;c:s,"was held to be superseded by article
6813f in conjunction with ,theAppropriations Act rider then in effect.
The opinion could be read to mean that article 6813f overrides -all
statutes regarding per diem.

     In Attorney General, Opinion J&349,       however, this office
concluded that a member of the State Property Tax Board is not
entitled to receive the compensatory per diem provided for by article
6813f and by the current k?l)ropriationsAct rider concerning per diem.
Attorney General Opinion M-349 dealt with section 5.01(i) of the Tax
Code:

           A number of the board may not receive compensation
           for his service k   the board but is entitled to
           reimbursement fo; actual and necessary expenses,
           as provided by I$islative appropriation, incurred
           while on travel. status id-the performance of
           official duties. (Emphasis added).



                                  p. 1953
Mr. Roger D. Shipman - Page:4 (JR-4261




Because article 6813f was Lntended to preempt only "law prescribing
the amount of per diem relating to membership on a state board or
commission" and because this statute "prohibited" rather than
"prescribed" the payment of compensatory per diem, Attorney General
Opinion .I&349 concluded ,that the compensation component of the
current Appropriations Act rider regarding per diem does not apply.

     Attorney General Opinion Xi-382 reiterated the conclusions in
Attorney General Opinion JM-349. The ambiguity of article 6813f and
of the rider lies in the ILW of the term "per diem." As we stated in
Attorney General Opinion JW382:

            The primary prclblemat issue here arises because
         article 6813f en:ompasses two concepts: compensa-
         tory per diem an'd per diem which represents re-
         imbursement for expenses. See Attorney General
         Opinions JM-349 111985);Fig-388 (1981). Although
         the term 'per diem' has historically encompassed
         both types of prlyments,very differmt considera-
         tions apply to ea#ch. Texas statutes often created
         one flat rate payment which included both compensa-
         tory and reimbursamant per diem. Other     statutes
         provided only for reimbursement for expenses. Some
         statutes expressly prohibited the' receipt of com-
         pensation. In creating the numerous state boards
         and commissions, however, the legislature cleariy
         intended that some would receive compensation,
         i.e.. payment for services, whereas others would
         110t. Article 6813f is ambiguous because it fails
         to adequately de:.ineatebetween the two.

The opinion concluded that the legislature could not have intended
article 6813f, in conjunctii>nwith the General Appropriations Act, to
transform all state boards and commissions into lucrative positions,
thereby creating myriad dual office-holding problems.

     Consequently, a cons,:lmction of article 6813f was adopted in
Attorney General Opinion JM-382 which applied the language in the
statute itself that only laws "prescribing the amount of per diem"
were suspended to the extent of conflict. Statutes which "prohibited"
the receipt of compensatclry per diem were not suspended. To the
extent that Attorney General Opinion MU-388 could be read to require
that all board and commission members should receive the compensation
provided for in subsection (1) of article V, section 4. of the General
Appropriations Act, it was expressly clarified and limited by Attorney
General Opinion 311-382. The result of Attorney General Opinion MW-388
was not reversed.




                              p. 1954
Mr. Roger D. Shipman - Page 5 (m-426)




     YOU ask about a prov!.s!ionsimilar to that considered in Attorcey
General Opinion MU-388; me which appears to both "prescribe" and
"prohibit" the receipt o:i per diem. As indicated, article 7465a,
section 5(h) of the Veterinary Licensing Act provides:

            Each Board member is entitled to a per diem as
         set by leglslatiw appropriation for each 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 and
         lodging, other than transportation expenses. A
         member is entitle'dto compensation for transporta-
         tion expenses 218 prescribed by the General
         Appropriations Act.

The section begins and eni,sby prescribing that the amount of a board
member's per diem is that fixed by the General Appropriations Act.
But the provision prohibits the receipt of a component of per diem for
actual sxpenses. This provision differs from that at issue in
Attorney General Opinion JM-349.   We believe that, overall, section
5(h) of the Veterinary LL:tcnsingAct is a provision which prescribes
the amount of per diem tlo which a board or commission member is
entitled. Consequently, it is superseded by article 6813f in conjunc-
tion with the current Genet,s&Appropriations Act.

     It has bem suggested 'thatour conclusion with regard to question
4 in Attorney Geaeral OpinjionJM-382 also has a bearing on the issue
at hand. As stated in Attorney General Opinion JM-382:

             Your fourth question concerns the effect of
          article 6813f or! a statute enacted subsequent to
          article 6813f. As indicated at the beginning of
          this opinion, a rider to a general appropriations
          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 s,ame subject, the most recently
          enacted statute ,!:cevails.Consequently, a statute
          which is passed subsequent to article 6813f and
          which concerns t'reamount of per diem a particular
          board's members are entitled to receive would
          create an exception to article 6813f with regard
          to that board or commission. Because section 4(l)
          of article V of the current Appropriations Act
          provides for per diem '[a]~ authorized by Section
          2 of article 68H:i.' it does not apply to per diem
          established by o,therstatutes, i.e., those enacted
          after article 6813f.      The statute     for the




                              p. 1955
                                                                          I
Mr. Roger D. Shipman - Page:6     (.JM-426)




          particular board    and the board's appropriation
          would control.

Section 5(h) of the Vettninary Licensing Act and article 6813f.
V.T.C.S., as originally emcted, were both enacted during the same
legislative session. Arguably, if section 5(h) was passed after
article 6813f, it would ml: be preempted by article 6813f.  -

      The session laws, howover. reveal that in this case this is not a
problem. Article 6813f pa:z.ed by the legislature on May 31, 1981
while section 5(h) was pmsed by the legislatur'eon May 27, 1981.
Moreover,   section 2 of article 6813f was amended in 1983, thereby
providing a more recent expression of the legislature's intent that it
preempts ~conflictingprovisions which prescribe the amount of per diem
due to state board and comnission members. -See Acts 1983, 68th Leg.,
ch. 761, at 4571.

                                SUMMARY

             Members of the Texas Board of Veterinary
          Medical Examiners are entitled to reimbursement
          for expenses pursuant to article 6813f, V.T.C.S.,
          in conjunction vtth section 4 of article V of the
          current General Appropriations tact.




                                            JIM     MATTOX
                                            Attorney General of Texas

JACX HIGHTOWER
First Assistant Attorney Goneral

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney (kaneral

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General



                                  p. 1956
