               THE        ATTORNEY                   GENERAL
                                 OF     TEXAS                           ,~-‘,----          ---..   ,




Hon. Ben Ramsey                               Opinion    No.    WW-7
Lieutenant Governor          of Texas
                                              Re:     Social Security  partici-
Hon. Waggoner   Carr, Speaker                         pation by Senators   and
House of Representatives                              Representatives

Capitol     Station
Austin,     Texas

Dear   Sirs:

               Your letter requesting   our         opinion    in reference    to the
captioned      matter reads as follows:

             “The Texas Legislature       authorized   ‘State
       Employees’,    as defined in the Law, to participate
       in Old page and Survivor~s Insurance        (Social
       Security).    Specific   reference   is made to Section
       lo, Subsection   (c) of House Bill No. ,666, Acts of
       the 54th Legislature,      Regular Session,    1955, which
       became effective      September    6, 1955, and which provides
       in part as follows:

                 “‘(c) The term “State Employee”      in addition, to
          its usual meaning shall include elective       and appointive
          officials    of the State, but shall not include those per-
          sons rendering      services  in positions, the compensation
          for which is on a fee basis.       . .’

                “The Senators      and Representatives     are, no, .doubt,
          ‘elective  officials   of the State’.   As elective    officials,
          they could be included for Social Security participation.
          The question arises,       however,   as to their eligibility
          for participation     because  of the method of their com-
          pensation   since ‘positions,    the compensation     for which
          is on a fee basis’ are excluded.          If they are not within
          the exclusion,     it is assumed    that they must participate
          in Social Security      along with all other elective      officials.”

               Article   III, Section   24 of the Texas         Constitution   provides,
in part,     as follows:

               “Members    of the Legislature shall receive from
          the public treasury   a per diem of not exceeding   Twenty
Hon.   Ben Ramsey
Hon.   Waggoner. Carr,       page   2 (WW-7)




         five ($25)    Dollars    per   day for   the first one hundred
         twenty (120) days       only   of each   session  of the
         Legislature.”

            The Supreme      Court of Tennessee        in construing    a similar
provision  of the Tennessee       Constitu,tion which provides      for a per
diem of Four Dollars       per day for members         of the general assembly,
held that the term Uper diem” as used in Article              II, Section 23
of the Tennessee     Constitution    is synonymous      with “salary”    and
stated that the term “salary”        imports    the idea of compensation
for personal   service,   and not the repayment         of money expended in
the discharge    of the duties of the office.       Peay
7 S.W.Zd 815 (1928).       The Court in McNair        v. Allegheny     County,
195 A. 118, 328 Pa. 3 held that “fees”,           constitute   payment for par-
ticular services    performed,     while “salaries”     constitute fixed
compensation    for continuous     services    over a period of time.

           The Texas Supreme       Court in the case of Wichita County
v. Robinson,   276 S.W.Zd   509 (1954) held that fees are compensa-
tion for particular  services   rendered   at an irregular period, payable
at the time the services     are rendered.

            Based upon the above authorities,       it is clear to us that
Section 24 of Article    III of our Constitution   does not provide that
members    of the Legislature    shall be compensated      on a fee basis.
It is our further opinion that members        of the Legislature    are
elective officials  of the State and are “State employees”        as that
term is defined in Subsection      (c) of House Bill No. 666, Acts of
the 54th Legislature.

                                         SUMMARY

              Section 24 of Article   III of our Constitution    does
              not provide   that members    of the Legislature
              shall be compensated     on a fee basis.      Members
              of the Legislature   are elective   officials  of the
              State and are “State employees”       as that term
              1s defined in Subsection-(cj    of House Bill No.
              666, Acts of the 54th, Legislature.

                                             Yours   very   truly,

APPROVED:                                    WILL WILSON
                                             Attorney General        of Texas
Opinion    Committee

H. Grady Chandler
     Chairman

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