                                          The Attorney        General of Texas
                                                         November 20, 1985
JIM MATTOX
Attorney General


Supreme   Court Suilding                  Mr. Vernon M. Arrel.1              Opinion No.JM-374
P. 0. BOX 12548                           Comissioner
Austin, TX. 76711. 2548                   Texas Rehabilitat:tonCcnnnission   Ret Whether a member of the Texas
512/475-2501
                                          118 E. Riverside Drive             Planning Council for Developmental
Telex    9101874.1367
Telecopier     512/4750266
                                          Austin, Texas   711704             Disabilities is entitled to com-
                                                                             pensatory per diem
714 Jackson.  Suite 700                   Dear Mr. Arrell:
Dallas, TX. 75202.4506
214/742-6944
                                               You ask whether members of the Texas Planning Council for
                                          Developmental Disabilities may be paid compensatory per diem for
4824 Alberta        Ave.. Suite     160   performing their official duties.
El Paso, TX.        79905-2793
9151533-3464
                                               Section 112.312 of the Texas Human Resources Code provides for
                                          the creation of a,25-member planning council. Subsections (c) and (d)
10ot Texas,    Suite 700                  of section 112.01:2 detail the 18 gubernatcrial appointees to the
Hcxston,    TX. 77002-3111                council. Section 112.015 of the TexansHuman Resources Code provides
71312255886                               for the expenses of these council members as follows:

                                                      (a) C:ouncil members appointed under Section
606 Broadway.          Suite 312
Lubbocft,    TX.     79401.3479
                                                   112.0121:~:)or (d) of this code serve without
8061747.5238                                       salary but are entitled to reimbursement for
                                                   actual expenses incurred in performing their
                                                   duties, including travel, meals, lodging, and
4309 N. Tenth.   Suite 6
f.dc~tten. TX. 785wi6a5
                                                   telephone. long-distance   charges.    (Emphasis
512/662-4547                                       added).

                                               Your question arose because of article 6813f. V.T.C.S., and
200 Main Pla2a, Suite 400                 article V, section 4 of the 1986-87 General Appropriations Act.
San Antonio,  TX. 78205.2797
                                          Article 6813f provides in full:
512/225-4191

                                                       Secthxl 1. In this Act, 'state board or
 An EqUill     Opportunity/                        commissi~on'means a board, commission, committee,
 Affirmative       Action     Employer             council, or other similar agency in the state
                                                   governmmt   that is composed of two or more
                                                   members.

                                                      Sec. 12. A member of .a state board or com-
                                                   mission is entitled to per diem relating to the
                                                   mamber'e service on the board or commission. The
                                                   amount cf the per diem is the amount prescribed by
                                                   the General Appropriations Act.



                                                                   P. 1710
Mr.   Vernon M. Arrell - Page:2 (m-374)                                  _.




               Sec. 3. --
                        Each law prescribing the amount of per
            diem relating tc membership on a state board or
            commission is :%spended to the extent of a
            conflict with th:z&.     If the General Appropria-
            tions Act does not orescribe 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 ,tmposesa limit on the number of
            days for which ,% member of a state board or
            commission is eatitled to claim per diem, the
            limit is not srspended by this Act.      (Emphasis
            added).

Article V, section 4 of the General Appropriations Act states:



               PER DIEM OF :3OARD OR COMMISSION MEMBERS. As
            authorized by Section 2 of Article 6813f, Texas
            Revised Civil Statutes Annotated, the per diem of
            state board and commission members shall consist
            of (1) the amounlz%of compensatory per diem at $30
            per day; (2) actual expenses for meals and lodging
            as aurhorized by this Act not to exceed the maxi-
            mum amount allowed as a deduction for state legis-
            lators while awsy from home during a legislative
            session as established pursuant to the Internal
            Revenue Code 26 U.S.C. Section 162(i)(l)(B)(ii);
            and (3) transportation. In the event the maximum
            amount allowed ,313a deduction for state legis-
            lators pursuant to the Internal Revenue Code as
            provided above is raised to an amount-above $100,
            the maximum amount of meals and lodging portion of
            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 cormsissionmembers include compensatory
            per diem only.    No employee paid from funds
            appropriated by this Act shall be paid both a
            salary and compensatory per diem for concurrent
            service as a state employee, and as a board or
            commission member. (Emphasis added).

Acts 1985, 69th Leg., ch. 980, art. V. 54, at 7761.

     In Attorney General 0pinion JM-349 (1985), we concluded that a
member of the State Proper,tyTax Board is not entitled to receive then
compensatory per diem pror:tded for in article V. section 4, because



                                p. 1711
Mr. Vernon M. Arrell - Page 3     (JM-374)




section 5.01(i) of the Texas Tax Code states that "[al member of
the board may not receiw      compensation for his service on the
board. . . .ll The opinion reasoned that article 6813f, V.T.C.S., was
intended to preempt only "law prescribing the amount of per diem
relating to membership m    a state board or commission." Because
section 5.01(i) "prohibim" rather than "prescribes" the payment of
any amount that does not represent reimbursement for expenses, the
opinion concluded that the compensation section of the rider based on
article 6813f did not apply. Similar considerations apply to the case
at hand.

     Section 112.015 specif,Lesthat "[clouncil members appointed under
Section 112.012(c) or (d) of this code serve without salaq but are
entitled to reimbursement for actual expenses. . . ." The flat rate
compensatory per diem estxblished by subsection (1) of section 4 of
article V of the General Appropriations Act clearly represents com-
pensation for services rather than reimbursement for expenses. See
Attorney General Opinion .JM-349 (1985). Although section 112.015
prohibits the payment of 'salaries" rather than of "compensation," we
believe that the import of ,:hrprovision is to prohibit payments which
represent   something otner     than   reimbursement for     expenses.
Accordingly, the members oE the council who are appointed according to
section 112.012(c) and (d'lare not entitled to the compensatory per
diem provided for in subswtion (1) of sectiun 4 of article V of the
current General Appropriations Act.

                              SUMMARY

            Members of the Texas Planning Council for
         Developmental I~isabilities who are appointed
         pursuant to sectI.on112.012(c) or (d) of the Texas
         Human Resources Code are not entitled to the
         compensatory per diem provided for in subsection
         (1) of section l+ of article V of the current
         General Appropria‘tionsAct.


                                        Jx&



                                          JIM     MATTOX
                                          Attorney General of Texas

MARY KELLER
Executive Assistant Attornq   General

ROBERT GRAY
Special Assistant Attorney General




                                p. 1712
Mr. Vernon M. Arrell - Page 4   (JM-374)




RICK GILPIN
Chairman, Opinion Comittes

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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