                                   May 16.   1974



The Honorable Joe Allen,  Chairman                  Opinion NO. H-     307
Committee   on House Administration
House of Representatives                            Re: Whether and under what
Aus tin, Texas                                      circumstances    a member of
                                                    the Legislature   is entitled to
                                                    receive mileage or per diem
                                                    for days snot in attendance at
Dear   Representative   Allen:                      the Legislature

        As Chairman of the House of Representatives    Committee    on House
Administration   you have asked our opinion on Article   3, 5 24 of the Con-
stitu’tion which provides:

                     “Sec. 24. Members     of the Legislature  shall
              receive from the Public Treasury      an annual salary
              of not exceeding Four Thousand,      Eight Hundred
              Dollars ($4,800)    per year and a per diem of not
              exceeding Twelve Dollars     ($12) per day for the first
              one hundred and twenty (120) days only of each Regular
              Session and for thirty (30) days of each Special Session
              of the Legislature.    No Regular Session shall be of
              longer duration than one hundred and forty (140) days.

                     “In addition to the per diem the Members        of each
              House shall be entitled to mileage in going to and re-
              turning from the seat of government,        which mileage shall
              not exceed Two Dollars and Fifty Cents ($2.50) for every
              twenty-five  (25) miles,   the distance to be computed by
              the nearest and most direct route of travel,       from a table
              of distances prepared by the Comptroller        to each county
              seat now or hereafter    to be established:   no Member to
              be entitled to mileage for any extra Session that may be
              called within one (1) day after the adjournment       of the Regu-
              lar or Called Session. ”




                                      p.   1421
 The Honorable      Joe Allen,   page 2        (H-307)




       Your first    two questions   are:

                      “1. If a Member does not travel from his
              district to the seat of government   in order to attend
              a Regular or Special Session,    should that Member
              be paid for mileage as set forth in Article   3, Section
              24, Constitution   of Texas?

                    “2.   If a Member fails to attend or is absent
             for a full legislative   day, during any Regular or
             Special Session,     should that Member be paid the
             $12.00 per diem a,8 set forth in Article   3, Section
             24; Constitution     of Texas? ”

        The .Constitution of the Republic of Texas and the first four consti-
hitions of the State provided that the compensation       of legislators    would be
 set by law with the proviso that new rates would not be effective until the
 session following the one at which they were approved.          However,     the 1876
 Constitbtion limited legislative  compensation     to not more than five dollars
per day for the first sixty days of any session and not more than two dol-
lars per day for the remainder     of the session.     In 1930 the Constitution
increased    the per diem to ten dollars per day for the first 120 days of a
session and five dollars per day for the remainder         of ~the session.   In 1954
it wasamended      to provide for twenty-five   dollars per day for the first 120
days only of each session.      The current language was approved by the voters
in 1960.

       Per diem can have more than one meaning.              It may be used to signify
a fixed sum paid as compensation         or salary.     Terre11 v. King, 14 S. W. 2d
786 (Tex. 1929).      In other contexts “per diem” may refe~r to a fixed amount
allowed to compensate       for incurred expenses.       See, for instance,  the Travel
Regulations Act of 1959. Article       6823a.   V. T. C. S., which in its 0 3a, defines
a per diem allowance as “a flat daily rate payment in lieu of actual expenses
incurred.    .~ . .‘I We find it unnecessary,      in this case, to decide whether the
$12 per diem currently paid legislators        is paid as salary or as reimbursement
of .expenses.




                                          p.    1422
The Honorable    Joe Allen,    page 3        (H-307)




       The very question you have asked was before the Supreme Court
in Spears v. Sheppard,   150 S. W. 2d 769 (Tex. 1941), although the consti-
tutional prbvision then was different.  In passing upon whether a member
of the National Guard was entitled to his per diem as a member of the
Legislature,   the Court said:

                    II . . . This provisionof     the Constitution [Art. 3,
             Sec. 241 . . . does not make the right to such per
             diem dependent upon actual,attendance         on the sessions
             of the Legislature.     All that is required is that the
             Legislature    be in session and that the claimant be a
             member thereof.      . . . !’ (150 S. W. 2d at 770)

      And see,   Attorney     General   Opinion V-788   (1949).

        We.are.aware    that thgr,e is .language in Walker v. Baker,   196 S. W.2d
324 (Tex. 1946) which might be read to support a contrary conclusion.          HOW-
ever, the statement is dictum,       wholly unnece6sar.y to the opinion, and,
therefore,    would be of insufficient    weight to overcome the clear holding of
Spears,    even if assumed to be contrary.

        While no court has construed the portion of 5 24, Article         3. relating
to mileage,    the office of the Comptroller     of Public Accounts advises us
that, administratively,      the mileage is paid only once during each session
of the .Legislature.     This administrative    construction   is entitled to weight.
Calvert v. Kadane, 427 S. W. 2d 605 (Tex. 1968).            The provisions   of § 24
that a legislator    is not entitled to additional mileage for an extra session,
if called within one day after adjournment        of a preceding session,    is an in-
dication that’it wasintended       that only mileage actually incurred be reim-
bursed. ‘*Additionally;-,the     great disparity in the distance to be traveled would
strongly   suggest that the mileage was intended as reimbursement             of incurred
expenses    and not as.additionol compensation.

       We are of the opinion, therefore,    that mileage,  unlike per diem, is to
be paid only if a legislator  actually travels to the seat of government   to attend
a session of the Legislature.




                                        p.    1423
The Honorable    Joe Allen,    page 4      (H-307)




       We therefore answer your questions      that a member of the Legislature
is not entitled to the mileage set forth in Article   3. $ 24, of the Constitution
of Texas if he does not travel to the seat of government to attend a session
of the Legislature.    He is entitled to his per dijem even though he fails to
attend a -session or may be absent for a full legislative    day.

      Your   third question   asks:

                   “If your answer to either number I or 2 is no,
             are there any special circumstances,     such as illness,
             death in the family, inclement weather or other special
             circumstance   which would constitute a valid excuse for
             such absence and therefore   entitle such Member to
             payment for either the per diem, mileage,     or both?”

       It is unnecessary  to answer as to per diem.  Since it is our interpre-
tation that mileage is payable only for reimbursement    for actual expenses
incurred,    there are no circumstances  under which the mileage would be
paid without having been incurred.

                                           SUMMARY

                     The mileage called for by Article 3. 5 24, Con-
             stitution of Texas, for members    of the Legislature is
             dependent upon actual travel.    The per diem on the other
             hand is not dependent upon attendance at any session of
             the Legislature.




                                                      Attorney   General   of Texas




                              Asbietant



DAVID M. KENDALL.         Chairman
Opinion Committee



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