                                         February      15,   1957



Honorable     Price   Daniel                         Opinion        No.   WW-7-A
Governor     of Texas
Capitol   Station                                    Re:     Reconsideration         of Opinion
Austin,   Texas                                              No. WW-7       --Social     Security
                                                             participation     by Senators
Dear    Governor      Danie I:                               and Representatives.

                On January     22,    1957,    we held    in Opinion        No. WW-7      that
members         of the Legislature       were    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.              We also    held that
Article     III, Section    24 of the Texas         Constitution,       which   provides     that
members         of the Legislature       shall   receive    from      the public    treasury
a per diem        of not exceeding       Twenty-five       Dollars       per day,   etc.,   does
not provide       for the members         of the Legislature           to be paid upon a fee
basis.      Said Subsection       (c) reads,     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   persons
       rendering       services    in positions,     the compensation       for
       which      is on a fee basis.       . . *

              You state    that you have before       you S.B.   No.    138 which
amends     Subsection    (c),    above  quoted,  by expressly    providing     that the
term   “State   employee      ” shall  not include   members     elected   to the
House   of Representatives          and Senate.    You request     our opinion     as to
the effect    of this Bill     in view   of the contract   between     the State    and
the Federal     Government         on coverage   of State  employees.

               After  receiving   your letter,        this Department             has reconsider-
ed   Opinion    WW-7,    in light of additional         facts coming         to    our attention.

              We are enclosing         herewith     said Opinion,     which    states    the
basis    of our holding.        The writer     of this reconsideration         opinion,     in
discussing     this matter       this morning     with Honorable       John H. Winters,
Executive     Director     of the Department         of Public   Welfare,      who is
charged     with the enforcement         of our Laws relative        to Old Age       and
Survivor’s     Insurance,      learned   that such      Department,     since    the passage
of House     Bill No.     666,   Acts  of the 54th Legislature,          1955,    has con-
sistently    construed     the term     “per   diem”     as employed      in various      boards
whose     members      are paid on a per diem            basis,  to the effect      that such
compensation       is on a fee basis.         Since    writing  our original       opinion,
Hon.     Price     Daniel,    page     2   (WW-7-A’)




we have   been informed               that the Treasury          Department  of the United
States has also  placed              a like construction         on the term   “per diem”.

                 Black’s      Law Dictionary,          4th   Edition,   among   other   defini-
tions,     states    that    per diem   means:

                 “Per   diem    is sometimes    and by some     courts
         held to be included       in the term    fees  and sometimes
         otherwise,    and the two terms       are not always
         synonymous.       Anderson     v. Beadle    County,  51 S.D.            6,
         211 N.W.     968,   969.”

             The courts      of this State    have often stated    that the con-
struction   placed   upon a statute      by the governmental      agency     charged
with the enforcement        thereof,   should   not be overturned      unless   such
departmental     construction     is clearly    wrong.

              In view     of the fact     that some       courts,    as stated     in Black’s
Law Dictionary,        have held that compensation                on a “per     diem”     basis
is included      in the term     “fees”,     we do not believe          we can say that
the departmental        construction      of the Welfare          Department      is clearly
wrong.      You are therefore          advised    that our Opinion         WW-7      is with-
drawn    and that it is our considered              opinion    thnt the members           of the
Legislature       are excluded     from     pqr.ticipation     in the Old Age         and
Survivor’~s     Insurance     by virtues of the exemption             contained     in House
Bill  No, 666 which-states;           ” . , , but shall       not include      those    persons
rendering     services      in positions,     the compensation          for which      is on a
fee basis.     . . ”

             You are further    advised   that S.B.  No.   138, which   expressly
excludes    members    of the Legislature     from  coverage    under  Chapter
467,  Acts   of the 54th Legislature,     will accomplish    no purpose    whatso-
ever   if it becomes   a law,  as the members       of the Legislature     are
excluded    under  the present   law.

                                                 SUMMARY

                 Subsection      (c) of Article      1 of H.B.    No.   666,
                  Chapter    467,    Acts   54th Legislature      which
                  provides    that the term       “State   employee”
                  shall  not include      persons     rendering    services
                 in positions,      the compensation       for which      is
                 on a fee basis,        excludes    members      of the
                 Legislature      from     being  cove,red    under   the
Hon.   Price     Daniel,   page   3 (WW-7-A)




               Act,  in that the “per    diem”  of the
               members     of the Legislature   consti-
               tutes  payment   on a fee basis.

                                                Yours     very   truly,

                                                WILL     WILSON
                                                Attorney    General




                                                    W. V. Geppert
                                                    Assistant

APPROVED:

OPINION        COMMITTEE
H. Grady       Chandler, Chairman

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