            T~~EATS'ORNEY              GENERAL

                        OF-XAS

                        Auwrxiu~~.TBZ!LAS
‘PRICEDANIEL
ATTORNEY
       GENERAL
                        May 21, 1948

    Han, V, C, Marshall
    Executive Director
    State Soil ConservationBoard
    Temple, Texas                Opinion No. V-584
                                  Re: Applicabilityof sub-
                                      section llg, Section
                                      2, Appropriationbill
                                      for current biennium,
                                      to members of the
                                      State Soil Conserva-
                                      tion Board.
    Dear Sir:
              Reference is made to your letter of recent
    date, from which we quote as follows:
         "Since Members of the State Soil Conserva-
         tion Board first took their oaths of office
         in 1939, they have been reimbursed for meals
         and lodging as State Employees, being lim-
         ited at the present time to Four ($4.00)
         Dollars a day for meals and lodging,
         *We should appreciatehaving the opinion of
         your Department regarding: Appropriations-
         State Department and Agencies General.Pro-
         visions, Section 2 Paragraph il-g; General.
         and Special Laws - Texas, 50th Legislature,
        Regular Session, 1947a And, Section 4;D,
         paragraph 2, Texas State Soil Conservation
         Law, Acts of the 47th Legislature,Regular
         Session, 1941e
         wAppropriations,State Department and Agen-
         cies, General Provisions Section 2, para-
         graph U-g, General and gpecial Laws - Texas,
         50th Legislature:-- '* * * Provided how-
               that the meals and lodging limitation
         yz;Lked 6y this Section (11-g only) shall
         not apply to any elected State Official when
         traveling in er out of State,"
Hon. V. C. Marshall,- Page 2                      (V-584)       "    ',,


     wSection 4-D, paragraph 2, Texas State
     Soil ConservationLaw Acts ofl;,"f:  47th
     Legislature,Regular &esslon
     f ,* * but each member shall ce entitled
     to expenses, including traveling expenses,
     necessarily incurred In the discharge af
     their duties as members ef,the Board..'
    We should like the opinion of your De-
    partment on the following question: Are
    members of the State Soil Coneervatien
    Board entitled to be reimbursed In the
    amount of expenses actually lncurred'for
    meals and lodging?"
           The State Soil ConservationLaw was first en-         ."
acted in 1939 (Acts 46th Leg., p. 71, reenacted and
amended in 1941 (Acts 47th Leg;,,p.'491) and Is now
known as Article 165a-4, Vernon's Civil &atutes. Set-       1
tlon l+A thereof in part, reads:
         "There is hereby establishedt@ serve
    as an agency of the State and to perform
    the functions conferred on it in this Act,
    the State Soil ConservationBoard. The
    Board will consist of five (5) members.
    The following shall serve in an advisory
    capacity to the Board: The President of
    the Agriculturaland Mechanical College of
    Texas, the President of Texas Technole i-
    cal College,,the Director of Vecationae
    Agriculture of Texas, the State Ceminisslener
    of Agricultureand th.eState Coordinateref
    the Soil ConservationService of the'llnited
    States Department of A riculture. The five
    A;le;;z;t:;ef;;T;gs of theBoard shall be
                       : The State of Texas Is
    hereby~dlvldedinto five (5) State Districts
    for the purpose of selecting five (5) men-
    bers of the State Soil ConservationBoard."
    (Emphasisadded throughout this opinion).'
          The remainder of this section names the coun-
ties comprisingeach of the five districts.
          Sections 4B an,d4C prescribe the procedure to
be followed in selectingmembers of the Board, ene frex
each district. The provisions of Section 4B are substan-
tially as foll0wS:
Hen, V. D, krshall - Page 3                       (V-5841


           Whenever a member of the Board is to be se-
lected, the Board notifies the County Judge of each
 County in a "State District* wherein a "District Con-
 servation Convention"is to be held. Upon receipt of
 such notice, each County Judge is required within twenty
days to appoint a "County Soil ConservationCommittee"
,of four members, one.from each Commissioners'precinct,
each of whom must be a landowner and actually engaged
 in the business of farming or animal husbandry. The
persons so appointed are within five days notified by
the County Judge of their appointment. The members of
the Committee so selected meet, organize, and select one
of its members as chairman.
          Section 4C reads:
          "The County Soil ConservationCommittee
     in each county shall elect one of its men-
     bers as a'delegate to attend the State Dls-
     trict 'ConservationConvention.The name and
     address of the delegate to the District Con-
     vention shall be certifiedto the State Soil
     ConservationBoard by the Chairman of the
     County Soil ConservationCommittee not less
     than twenty (20),daysprior to the date of
     the convention. Each State District Con-
     servation Conventionshall elect from among
     the qual.ifleddelegates present, by a major-
     ity vote, a member of the State Soil Conser-
     vation Board. The Chairman of the District
     Convention shall within five (5) days, cer-
     tify to the Stats Soil ConservationBoard,
     and the Secretary of State the name and ad-
     dress of the person elected, A majority of
     all qualified delegates elected to the State
     District Convention shall,constitutea quo-
     rum0 Each member of the State Soil Conser-
     vation Board shall be a qualified delegate
     to the State District Conventionwhich elects
     his successor.
          "Board members for Districts 2 and 4'
     elected in 1941 under the provisions of
     House Bill No, 201 Acts, Forty-sixth Leg-
     islature, Regular Session shall serve for
     the term for which they were elected, and
     until their successorsare elected and have
     qualified, On the first Tuesday in May,
     1943, at a place within the district to be
Hon. V. C. Narshall - Page 4                     (V-584)


    designated by the State 3011 ConsWva-
    tion Board, State District 2 ohall elect
    a board member as hereinaboveprovided,
    to serve on the State Soil Conservation
    Board for a period of five (5) years, and
    State District 4 shall elect a board mem-
    ber as hereinabove provided to serve on
    the.State Soil ConservationBoard fera
    period of four (4) years. Thereafter,
    board members elected from State Diatrlcts
    2 and 4 shall be elected for a period of
    five (5) years or until their successors
    are elected and have qualified.
          nBoard members for districts 1, 3,
     and 5, elected under the provisions of
     House Bill No. '20,Acts, Forty-sixthLeg-
     islature Regular Session, &a&l hold'thelr
     of~fices,korthe terms for which they were
     exected, and until their successorsare
     el,ectedand have qualified. On the first
     Tuesday In May, 1942, at a place within
     the district to be designated by the State
     Soil ConservationBoard, State District 1
     shall elect a board member as hereinabove
     provided to serve on the State Soil Con-
     servation Board for a period of two (2)
     years, and State District 3 shall elect a
    ,boardmember as hereinaboveprovided te
    'serveon the State Soil ConservationBoard
     for a period of three (3) years, and State
     District 5 shall elect a board member as
     hereinaboveprovided to serve on the State
     Soil ConservationBoard fora period of
     four (4) years. Thereafter,board members
     elected from State Districts 1, 3, and 5
     shall be elected for a period of five (5)
     years or until their successorsare elected
     and,have qualified.
         "Terms of office of all State Board
    Members shall begin on the day following
    their election,"
         Section 4D reads:
          "Each member of the State Soil Con-
     servation Board shall take-the State Con-
     stitutionaloath of office, and said State
Hon. V. C, karshall - Page 5                     (V-5841


     Soil ConservationBoard shall designate
     one of its elective members to serve as
     Chairman,
         "Vacanciesupon such Board shall be
    filled for an unexpired term or for a full
    tern, by the same manner in which the re-
    tiring members were respectivelyelected.
    Elective members of the Board may receive
    compensationfor their services on the
    Board not to exceed the sum of Ten Dol-
    lars !$lO) per diem for each day of actual
    service rendered, but each member shall be
    entitled to expenses, including traveling,
    necessarily incurred in the discharge of
    his duties'as a member of the Board,"
          The Fiftieth Legislaturemade an appropriation
to'the State Soil ConservationBoard of $1800 for each
year of the current biennium for "Travel Expense, Five
Board Members." Act 1947, Item 11, p0 924.
          Subsection llg of the rider to the appropria-
tion bill for State Departments and Agencies for the
current biennium reads:
         "All employees traveling at the ex-
    pense of the State are hereb limited to
    the amount of Three Dollars 7$3.00) per
    day for meals and a total of Five Dollars
    ($5.00) per day for meals and lodging, it
    being specificallyprovided that the em-
    ployees shall obtain receipts for all items
    of expense claimed except meals and shall
    file such receipts with their duly item-
    ized and sworn expense accounts; provided,
    however, that the meals and lodging limita-
    tions imposed by this Subsection (llg only)
    shall not apply to any elected State offi-
    cial nor to any appointed State official
    wnose appointment is subject to Senate
    confirmation,when traveling in or out of
    the State; nor to any assistant Attorney
    General or representativeof the State
    Health bfficer, or representativeof the
    Adjutant General, or representativeof the
    State Highway Commission,or representa-
    tive of the Railroad Commission,when any
    of these classes of State employees are
  Hon. V. C, IUrshall - Page 6                   (V-584 1.



       appearing,beforeor CeAsuI,tiIXgwith, on
       State business, any Federal Agencies in
       Washington, D. C."
            In Opinion No. O-6615, dated July 13; 194
  former Attorney tieneraladvised the Comptrollerof 8ub-a
  lit Accounts that since Section 4D of Article 165a-4
  provided each member of the State Soil Conservation
  Board "shall be entitled to expenses, including travel-
  ing, necessarily incurred in the discharge of hia duties
  as a member.of the'Board", the~Le islature was net pre-
  hibited by Section 44, Article.IIf of the Constitution
  from making an appropriationto pa; the claim of a me=-.
  ber of the Board for expenses so incurred by him in ,e%-
  cess of the amount appropriatedto the Board for that
  purpose.
            We believe the term "State officLalw, as that.
  term is used in Subsectionllg, means the same thing as
  State officer, or includes such sfficers, ,Inthe case
  of Collins V~ State 161 S. W. 115, our Court of Crimi- "
  nal Appeals said: $n a popular sense a State officer
  is one whose jurisdictionis coexttnoivewith the State."
  The statute creating the State Soil ConservationBoard
. prescribes its powers and duties which are coextensive
  with the State, Its members are sptciflcallyrequired
  to take the constitutionaloath of office, and their
  tenure of office is fixed, Consideringthe etatute in
  its entirety and.the public purpeste for which the Beard
  was created, we think the members of the Board are un-
  doubtedly "State officials" or State lffiotrs within the
  purview of,subsectionllg,
            It is our opinion that the term "elected State
  official",as used in subsectionllg, meana a State of-
  ficial elected by the qualifiedvoters of the State, the
  ordinarilyaccepted definition of that term. It is also
  our opinion that the manner prescribed,bythe statute
  for selectingmembers of the Board, whether for a full
  term or to fill a vacancy on the Board, ,mustbe construed
  as an appointment of such officers.
            Section 12, Article IV, of the Constitutien
  provides that all vacancies in State officest except
  members of the Legislature,shall be filled unless
  otherwise provided by law," by appointment of the Gov-
  ernor, which appointmentshall be sub tct to Senate con-
  firmatien* The statute creating the !!tate Soil Constr-
  vation Board fully prescrfbtsthe precedure to be fol-
Hon. V, C. Marshall - Page 7                   (V-584)


lowed in appointingmembers of the Board and a vacancy
on the Board is filled in the same manner in which the
retiring member was appointed.
          In view of the foregoing conclusions,it nec-
essarily follows that members of the Board do not cone
within the exceptions found in subsection llg pertaining
to an "elected State official" or an "appointedState of-
ficial whose appointmentis ,subjectto Senate confirma-
tion."
          We have carefully examined all department ap-
propriationbills enacted by the Legislaturesince 1901
and havesfound that the Forty-thirdLegislaturewas the
first Legislatureto attach riders to such bills putting
a per diem limitation for meals and lodging on State em-
ployees or State officers. (Acts 1933, p0 511). The
pertinent partof these riders read:
         "All employees covered 'uncerthis bill
    who are traveling at the expense of the State
    are hereby limited to the followingamounts
    for meals-and lodging: for meals not txcttd-
    ing One Dollar and Sixty Cents ($1.60) per
    day, for lodging not exceeding Two Dollars
    (#2.00) per night 0 0 . provided the provi-
    sions of this Act shall not apply to members
    of Boards and Commissionerswho do not re-
    ceive an annual or monthly salary, nor to the
    Executive Board or the heads of State Depart-
    ments.
         "It is expressly provided that the pro-
    visions of this Act with reference to travel-
    ing expenses shall not apply to the Governor
    and Lieutenant GovernorQR
         Bimilar riders have been attached to such ap-
propriationbills enacted since 1933. The State offi-
cers specificallyexempted from the meals and lodging
limitationshave not always been the same, but the,word
"employees" has invariablyappeare~din the rider,con-
taining such limitations. In the appropriationbills
of 1939 through 1945 the officers exempted from the
meals and lodging limitationsare identified in s'tpa-
rate riders,
         The pertinent part of subsection2e and all
of subsection 2g.of the appropriationbill of 1939 (Acts
Han, V, C. Marshall - Page 8                     (V-584)



46th Leg., Spl. Laws, p. 226) respectivelyread:
          Subsection 2e.
          "All employeestraveling at the tx-
     ptnst of the State art htrtby limited tt
     the amount tf $4. per day,expenses ftr meals
     and ltdging;."
          Subsection2g0
          "It is expressly provided that the pre-
     visions of this Act, with reference tt trav-
     eling expenses, shall not apply to the Gtv-
     trnor and Lieutenant Governor of this State."
          This effict had tccasien te construe the provi-
sitns tf these two subsectionsin Opinier Nt. o-1634,
dattd November 1, 1939, from which opinion, wt quete:
         "The specific rxtm titn lf these twt
    officials of our State k+vtrnment indicates
    clearly that it was the legislativebelief
    that, unless such specific extmptiea was
    made, the Governtr,andLieutenantGevtrner
    in incurring traveling expenses weuld be
    limited by the provisions of the rider rcl-
    ative thereto."
          The general meals and lodging limitatitn pro-
vision of the AppropriationBill of 1939 (subsection2e)
was brought forward without change in the Appropriation
Bill of 1941 as subsection 12g and subsection2g was
brtu ht forward as subsection13f. (Acts 47th Leg*, p.
12917, Subsection 13f reads:
         "It is expressly provided that the pro-
    ~visionsof Subsection 12g tf this Act'tith
    reference to limitationof ameunt of travtl-
    ing expense shall not apply to the Governor,
    the Lieutenant Governor, and the members of
    Commissionswht rtctivt no salary or ptrNiem,
    when traveling in or out of the State.
    shall said prtvision apply to,tht Adjutant
    General and his representativeswhen apptar-
    ing in Washington,Do C,, btferc the War Dt-
    partrent, the Attorney General and his as-
    sistants when appearing btftrt the Supreme
    Court of the United States and Federal Agencits
. .   .




          Hon. V, C. Marshall - Page 9                      (V-584)


               in Washington D. C., nor the members of
               the Railroad kommissionwhen appearing be-
               fore the Interstate Commerce Commission or
               other Federal Commissionsin Washington,
               D, C."
                    Subsections12g and 13f were construed in At-
          torney General's Opinion No. O-3996, dated September 30,
          1941, wherein it is said:
                    "We believe that 'State em loyets" as
               used in the appropriationbill Psubsection
               12g) covers all officers, representatives,
               and agents of the State. If this were not
               clearly the legislative intent, then the in-
               clusion of subsection13f in the bill would
               be a foolish act."
                    The records of the Comptroller'sOffice reveal
          that from September 1, 1933, the effective date of the
          appropriationbill of 1933, down to the present time,
          the constructionplaced on the riders considered in the
          two foregoing opinions is the same as has been given by
          that department to all such riders attached to the rc-
          spective departmentalappropriationbills.
                    We think it is apparent that each successive
          Legislature since 1933 was aware of the departmental
          constructiongiven to the meals and lodging limitations
          imposed by the rider attached to the departmentalappro-
          priation bill of 1933, and approved it, for a rider of
          the s&me general character has been attached to all such
          appropriationbills enacted since that time, and each
          of such bills has contained a provision exempting cer-
          tain State officers from such limitations.
                    In view of the foregoing it is our considered
          opinion that it was the purpose and intent of the Legis-
          lature in enacting Subsectionllg that the limitation
          imposed therein upon daily expendituresfor meals and
          meals and lodging should apply to all State officers ex-
          cept those therein specificallyexempted therefrom,
                  of the State Soil ConservationBoard are not so
          Nilembers
          exempted.
                    It is our further opinion that a member of
          the Board may legally ex end,more than $3000 per day
          for meals and more than i5.00 per day for meals and
          lodging, if such expendituresbe necessary in the per-
          formance of his duties, but he cannot be reimbursed
                                                            .   . . .




Han, V. C, Fiarshall- Page 10                    (V-w+)


for such excess so incurred from the current appropria-
tion made to the Board for payment of traveling expenses.
He may, however, present his claim for the ameunt of
such excess so paid to the Legislaturefor approval and
payment and the Legislaturemay legally make an appro-
priation to pay the same, because the statute provides
that such members shall be entitled to their traveling
expenses incurred in the discharge of their official
duties.

                       SUMMARY
         A member of the State Soil Conser-
    vation Board is subject to tht meals and
    lodging limitationsimposed by Subsection
    llg of the rider to the currrtBdeT;ft-
    mental appropriationbill.
    Acts 50th Leg,, Article 165a-4, V. C.'S.;
    Set, 12, Art. IV, State Constitution.

                                 Very truly yours,
                           ATTORNEY GENERAL OF TEXAS


                           ByLMw
                               Bruce W, Bryant
                               Assistant
BWB:wb:erc
