                                     The Attorney        General of Texas
                                                        May 2, 1984
    JIM MATTOX
    Attorney General


    Supreme      Court Building     Mr. Raymon L. Bynum                    Opinion No. ~~-152
    P. 0. Box 12546                 Commissioner of Education
    Austin. TX. 76711. 2546
                                    Texas Education Agency                 Re: Limitation on payment of
    51214752501
    Telex 910/674-1367              201 East 11th Street                   per   diem to members of    the
    Telecopier     5121475-0266     Austin, Texas   78701                  Texas State Board of Education
                                                                           and Texas State Board of Public
                                    Mr. Bob E. Bradley                     Accountancy
    714 Jackson, Suite 700
    Dallas, TX. 75202-4506
                                    Executive Director
    2141742-6944
                                    Texas State Board of Public
                                       Accountancy
                                    1033 La Posada, Suite 340
    4624 Alberta Ave.. Suite 160    Austin, Texas   78752
    El Paso. TX. 79905.2793
    915/533-3464
                                    Gentlemen:
n
     001 Texas. Suite 700                You ask whether your respective board members' reimbursement for
    HOUS,DII, TX. 77002-3111        actual expenses, incurred while performing their official duties, is
    71312255666                     controlled by each board's individual statutory expense authorization
                                    or by article 6813f, V.T.C.S., in conjunction with the current
    606 Broadway, Suite 312         appropriations act. Additionally, you ask whether the comptroller may
    Lubbock, TX. 79401-3479         validly limit the meals and lodging portion of per diem for members of
    6061747-5236                    boards and commissions to $75 under article V, section 4 of the
                                    current appropriations act.
     4309 N. Tenth, Suite S
     ._._....
            -.., TX~ 76501-1665
     M~Allen~        .~                  We conclude that members of boards and commissions are entitled
     5121662-4547                   to per diem pursuant to article 6813f, in conjunction with the General
                                    Appropriations Acts.    Acts 1983, 68th Leg., ch. 1095, art. V.
                                    However, the comptroller's limitation of reimbursement for actual
     200 Main Plaza, Suite 400
     sari Antonio, TX. 76205-2797
                                    expenses for meals and lodging to $75 per day is invalid because no
     5121225-4191                   clear, objective standards guide the limiting provision of the
                                    appropriations act. Article 6813f does not suspend specific laws
                                    prescribing the amount of per diem for board and commission members
     An Equal Opportunity1
                                    when the appropriations act-fails to prescribe the amount of per diem.
     Atfirmative Action EmplOW’

                                         Article 6813f states:

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



                                                                  p. 661
                                                                  .      c


Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 2                        (JM-152)




            Sec. 2. 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.

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

     The General Appropriations Act purports to prescribe a limit on
the amount of per diem for meals and lodging for board and commission
members as follows:

         As provided by authority of House Bill No. 957,
         Acts of the Sixty-seventh Legislature, Regular
         Session, the per diem of board or commission
         members shall consist of actual expenses for meals
         and lodging (not to exceed the maximum daily
         amount allowed as of the first of January of that
         year for federal income tax purposes as a
         deduction for ordinary and necessary business
         expenses) and transportation plus the amounts of
         compensatory per diem specifically authorized in
         this Act or as otherwise authorized by this Act.

Acts 1983. 68th Leg., ch. 1095, art. V, 54, p. 6201. The ceiling
created on the portion of per diem allowed for meals and lodging is
"the maximum daily amount allowed . . . for federal income tax
purposes as a deduction for ordinary and necessary business expenses."
Article V, section 4, does not expressly refer to specific provisions
of the Internal Revenue Code. Because the Internal Revenue Code
presently does not set a fixed maximum daily amount generally allowed
as a deduction for ordinary and necessary business expenses, see 26
U.S.C. 9162; Commissioner of Internal Revenue v. Flowers, 326 U.S.
465, 470 (1946), the language of section 4 is ambiguous.

     Examination of the history of the current appropriations act
reveals that committee members intended the language of article V,
section 4 to tie the par diem limit to the Internal Revenue Code and




                              p. 662
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 3                         (JM-152)




to set some sort of maximum per diem.   Senate Bill No. 179 of the
Sixty-eighth Legislature, which became the current appropriations act,
article V, section 4, contained no limitation on actual expenses as it
passed the Senate. The House version expressly provided that the per
diem of board or commission members shall consist of actual expenses
for meals and lodging not to exceed $75 per day. Tapes of the
Conference Committee meeting on the two versions of section 4 indicate
that committee members, by adding "I.R.S. language" as a limitation,
had in mind a limitation of $75 per day. However, article V, section
4 of the current appropriations act does not, by its terms, impose a
$75 limit on per diem, nor does it clearly direct the comptroller to
adopt a $75 limit.

     In light of the ambiguity of the limitation, the comptroller's
interpretation, limiting the meals and lodging portion of per diem,
appears reasonable. The comptroller's interpretation appears as
follo"s:

          Pursuant to Tex. Rev. Civ. Stat. art. 6813f and
          Article V, Section 4 of the General Appropriations
          Act, members of boards and commissions engaged in
          the active discharge of their official duties
          shall receive:

             1. For the year ending December 31, 1983,
          actual expenses for meals and lodging not to
          exceed $75 per day.     For the years beginning
          January 1, 1984, and January 1, 1985, actual
          expenses for meals and lodging not to exceed the
          maximum allowed as a deduction for travel expenses
          of state legislators while away from home pursuant
          to 26 U.S.C. S162.

Travel Allowance Guide, 012, $1(a)(l), p. 38.        The only express
Internal Revenue Code reference to a limit on the per diem that may be
deducted as an ordinary and necessary business expense is the limit on
the amount allowed as a deduction for state legislators while away
from home during legislative session. 26 U.S.C. 5162(i)(l)(~)(ii).
The maximum allowed under the Internal Revenue Code as a deduction for
state legislators while away from home is

          the amount generally allowable with respect to
          such day to employees of the executive branch of
          the Federal Government for per diem while away
          from home . . . . (Emphasis added).

Id. The maximum per diem for federal employees traveling on official
business in the United States is $75. subject to change in subsequent
years. 5 U.S.C. 55702(c). Thus, the comptroller's interpretation




                               p. 663
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 4                       (JM-152)




appears logical and consistent with legislative intent. However, the
comptroller's interpretation is not the only plausible, reasonable
interpretation of the legislative limit "not to exceed the maximum
daily amount allowed as of the first of January of that year for
federal income tax purposes as a deduction for ordinary and necessary
business expenses," especially in light of the fact that the Internal
Revenue Code itself sets no fixed, maximum per diem. Therefore, in
order to determine the validity of the comptroller's interpretation,
we must construe the language of article V, section 4 of the current
appropriations act.

     As indicated, the legislature linked the per diem limitation to
"the maximum daily amount allowed as of the first of January of that
year for federal income tax purposes as a deduction for ordinary and
necessary business expensef3.u As demonstrated, this language is
ambiguous. We conclude that the lack of legislatively expressed
standards in article V, section 4 of the current appropriations act
renders the per diem limitation unenforceable.

       The legislature may delegate the task of making rules and
determinations of fact to which existing law and legislative policy
are to apply, but the legislature must provide standards to guide the
exercise of delegated powers and duties. San Antonio Independent
School District v. City of San Antonio, 550 S.W.2d 262 (Tex. 1976);
Housing Authority of City of Dallas v. Higginbotham, 143 S.W.2d 79
(Tex. 1940). An administrative body may be given the authority to
ascertain the conditions upon which an existing law may operate,.and
standards may be broad when conditions must be considered which cannot
conveniently be investigated by the legislature. Housing Authority of
City of Dallas v. Higginbotham, a.      However, statutory delegations
of power may not be accomplished by language so broad and vague that
persons of ordinary intelligence must guess at their meaninn and
differ as to their application. Texas Antiquities Committee v. Dallas
COUnty    Community College District, 554 S.W.2d 924 (Tex. 1977);
Browning-Ferris, Inc. v. Texas Department of Health, 625 S.W.2d 764
(Tex. APP. - Austin, 1981, writ ref'd n.r.e.). The considerable
controversy and confusion generated by the limiting language in the
current appropriations act amply attest its failure to accomplish a
clear purpose and its failure to provide standards to guide its
enforcement.

     Even if the comptroller were correct in construing article V,
section 4 of the current appropriations act to permit the per diem
limit to fluctuate in accordance with federal tax law, that provision
fails to provide sufficient standards to limit and guide coordination
with such federal statutes and regulations. See 5 U.S.C., 55702(c),
5707 (general services administration may set and change maximum
federal per diem).




                             p. 664
    .
        Mr. Baymon L. Bynum
        Mr. Bob E. Bradley
        Page 5                       (JM-152)




             Delegations   allowing    fluctuating   standards    in   certain
        circumstances have been recognized and approved in Texas. --   See San
        Antonio Independent School District v. City of San Antonio, supra;
        Cherokee County Electric Cooperative Association v. Public Utility
        Commission of Texas, 618 S.W.2d 127 (Tex. Civ. App. - Austin 1981.
        writ ref'd n.r.e.) (and cases cited therein); Attorney General Opinion
        MW-17 (1979). The purpose of such provisions is to allow adjustments
        in response to fluctuations in costs without the necessity for
        full-scale determinations each time costs increase or decrease.
        Cherokee County Electric Cooperative Association, 618 S.W.2d at 130.
        Such provisions are usually utilized in circumstances where sudden,
        drastic cost changes are expected. See, e.g., San Antonio Independent
        School District, supra (electric utyeye; rates); Attorney General
        Opinion MW-17 (interest rates).               such clauses cannot be
        arbitrary or standardless; they must contaii limitations.

             The Texas Supreme Court in San Antonio Independent School
        District upheld a delegation authorizing use of a fuel adjustment
        formula 'in setting rates because no discretion was left to the City
        Public Service Board except the computation of charges pursuant to the
        rate formula and the cost of fuel. The court favorably cited Attorney
        General Opinion H-741 (1975) which determined the validity of a
        fluctuating rate schedule because the schedule provided an objective
P       formula to guide computation of future rates. Similarly, Attorney
        General Opinion MW-17 (1979) determined that an amendment to article
        5069-1.02, V.T.C.S., which provided for "floating" interest rates, was
        constitutional because it allowed limited fluctuations and created an
        absolute maximum rate of interest. The fluctuatine adiustment clause
        in Cherokee County Electric Cooperative Association, &,     was upheld
        in part because the Public Utility Commission set limits, and retail
        rate adjustments pursuant to the formula were subject to commission
        review and approval. Thus, even if the language in article V, section
        4 of the current appropriations act was intended to adopt the $75
        federal employee per diem limit, that limit is a fluctuating one, and
        the Texas legislature has provided the comptroller with no standards
        with which to apply the limit. We therefore conclude that article V,
        section 4 lacks legislatively expressed standards, thus rendering the
        comptroller's per diem limit of $75 unenforceable.

             Section 3 of article 6813f states, in part, that "[ilf 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." In this instance, as demonstrated, the General Appropriations
        Act fails to prescribe either a specific per diem amount or standards
        that can, from such an amount, be clearly determined. As a result,
        article 6813f does not suspend individual statutes which authorize
        reimbursement for board or commission members of actual expenses
r       relating to the member's service on the board or commission.




                                      p. 665
                                                                       --..
Mr. Raymon L. Bynum
Mr. Bob E. Bradley
Page 6                         (JM-152)




                             SUMMARY

             Article V, section 4 of the current appropria-
         tions act is ineffective in attempting to limit
         the amount of per diem, for members of state
         boards and commissions. Such per diem is to be
         determined by     the   individual   statutes   or
         appropriations act     provisions which     govern
         specific boards and commissions.



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                                                         1.
                                           Very truly you]



                                           JIM     MATTOX
                                           Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICRARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Susan Garrison
Jim Moellinger
Nancy Sutton




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