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                 THEATT~ICNEY                GENERAL
                              OFTEXAS




    Hon. WI W. Glass, Chaillnan         OpinionNO. ~-563
    contingentExpenseColmllittee
    House of Representa~ivss            Re: Conetitutionality of House
    Awtin, Texas                            Bill Iio.89, 56th Leg.,re-
                                            latingto the paymentof
                                            Legislativeexpensesdue to
                                            officialtelephonecalls
                                            made during the interimby
    Dear Mr; Glass:                         members of the Legislature.

          Yo-,Jhave requestedan opinionon the constitutionalityof House
    fill 85;of the 56th Legislature,
                                   which reads in part as follows:

               "Sec,tlonI. The followingwords, texms or phrases
          when need in t&ix Act have the meaningsascribedto them
          12 this ee;tion.

               "(a) 'Legislative  expense'means that expense in-
          sident y;oi&e workingsof the Legislatureas an actual
          law-makingbody, as a whole, as the Legislatureitself,
          when in session;througha specialcommitteedelegated
          by k&e Legislaturewhile in se&ion to work on a legis-
          Iatlvem&tes betweensessions;throughpersonnelem-
          plop3 to closema,ttern  after adJournmentjthroughem-
          p;opeasmaintainedbetweensessionsfor the care of the
          legislativehallisor for maintenanceof a centraloffioe
          or -,l"earirAg
                      home ifor legislativematters betweensessions;
          31"-31-w;@&s elect:vemembers acting,during the Interim,
          in their offiial zapacityaa Members of the Legislature
          in the perfoxmsnceof dutiesnecessaryto the proper con-
          diet cf +2x businessof the Legislature.

               "tb) 'Officialtelephonecalls'means all tele-
          phone cells made by &mbers of the Legislaturepertaining
          to state affairswith which the Legislatureis or may be
          C0~,$CTE33..

               “Sec.  2. The Committeeon ContingeM Expensesof
          each,House of tie Legislatureshall appropriatefrom
          its CcntingentExpenseFund whateversums shall be con-
          sidere?. necessaryby the Committeeto pay officialtele-
          phone calls during Interimperiodsand such calls shall be
          consideredIwgislativeexpensesas definedherein, Said
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Hon. W. W. Glass, page 2 (~~-563)



        Committeesmay set reasonablelimitson such legis-
        lativeexpense."

        Section 24, Article III, Constitutionof Texas, providesaa fol-
lows:

             "Membersof the Legialature‘shallreceivefrom the
        public Treasurya per diem of not exceedingTwenty-five
        ($25.00)Dollarspar day for the first I.20days only of
        each cessionof the legislature.

             "In additionto the per diem the members of each House
        shall be entitledto mileage in going to and returningfrom
        the seat of government,which mileage shall not exceed$2.50
        for every 25 miles, the distanceto be computedby the
        nearestand moat directroute of travel,from a table of
        distancespreparedby the Comptroller,to each county seat
        now or hereafterto be established; no member to be entitled
        to mileagefor any extra session thatmay be calledwithin
        one day after the adjournmentof a regularor called session."

       The SupremeCourt of Texas In Spears v. Sheppard,136 Tex. 277,
150 s.w.2d 769 (l94l),in construingthe provisionsof Section24 of
ArticleIII of the Constitutionof Texas,held:
            I . " * Moreover,the compensationprovidedfor in this
        Articleof the ConstitutionCoversand includesall services
        thatmay be requiredof the member duringhis entire term of
        office, includingthe time servedby him on committeesbe-
        tween sessionsof the Legislature. . . ."

       LikewIse,it ie stated in h'alkerv. Baker, 145 Tex. 121, 196 S.W.
2d 324 (1946):
             ”
                 *  Thie per diem multipliedby the number of days
                     0   0


        the Legislatureremains in regularor called seaeion,is the
        entire compensationa member is entitledto receive,and for
        ithe must attend the legislativesessionsand performall
        the other duties of his office each bienniun. . . ."

       AttorneyGenerals'OpinionsWW-148 (1957),WU-131 (1957),and
O-3778 (1941)concludethat expensesincurreda8 a result of the actlvi-
ties of the Legislaturemay properlybe dividedInto two categories
which are "legislative"and "personal." The Legislatureis authorized
to providefor the paymentof "legislative" expense,but cannotauthorize
the paymentof "personal"expenseby the uae of publicmoneys. The dlffer-
ence between legislativeand personalexpensehas been definedas follows:

            "It is believedthat the matter of Legislativeand
        personalexpensemay be reationallzed as follows. Legis-
        lativeexpense is that incidentto the workingsof the
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    Hon. W. W. Glase, page 3 (~~-563)



          Legislatureas an actual law-makingbody, as a whole,
          as the Legislatureitself,when in session;througha
          specialcommitteedelegatedby the Legislaturewhile in
          sessionto work on a legislative matter betweensessions;
          throughpersonnelemployedto closematters after
          adjournment;or throughemployee6maintainedbetween
          sessionsfor the care of the legislativehalls or for
          maintenanceof a centralofficeor clearinghouse for
          legislative matters betweensessions. These expenses
          are for the mutual benefitof all members--forthe Legls-
          lature itself.

               "Personalexpense,on the other hand, is that in-
          curred,or which may be incurred,by a Member between
          sessionsworkingunder his own will, in his own dis-
          cretionand as a matter of individualenterprise--notas
          a part of the Legislaturein sessionor under extraordi-
          nary assignmentfrom the body betweensessions." Attorney
          Generals'OpinionsWW-148,WW-131, and o-3778.

           In House Bill 89 submittedwith your request,the term “legis-
    lativeexpense"has been defined,and that definitionincludesexpenses
    "throughthe electivemembers'acting,during the interim,in their
    officialcapacityas members of the Legislaturein the performanceof
    dutiesnecessaryto the proper conductof the businessof the Legls-
    lature." This definitionof the legislativeexpensewould not only
    authorizea member of the Legislatureto be paid expensesincurredas :
    a resultof extraordinary  assignmentfrom the Legislaturebetween
    sessions,but would also authorizepaymentof expenseswhich may'be
    incurredby the member workingunder his own will in his own discretion,~
    and not pursuantto any particularassigomentof the Legislaimre. To
    this extent it would authorizethe paymentof personalexpensesand
    would therebyconstitutean increasein the compensationof the member
    of the Legislaturein excess of that permittedin Section24 of Article
    III of the Constitutionof Texas. It is thereforeour opinionthat
    House Bill 89, as written,au.thorizesthe expenditureof publicmoneys
    in excessof the amount limitedby Section24 of ArticleIII of the
    Constitutionof Texas and is thereforeunconstitutional.


                                    SUMMARY

               Insofaras House Bill 89 authorizesthe paymentof
          expensesincidentto the workingsof the Legislatureand
          throughspecialcommitteesdelegatedby the Legislature
          and throughpersonnelemployedto closematters after
          adjournmentand throughemployeesmaintainedbetweenaes-
          aions for the care of the legislativehalls or for main-
          tenanceof a centraloffice or clearinghouse for legis-
          lativematters betweensessionsand the paymentof
eon. W. w. Glass, pge 4 (w-563)



      telephozieexp&nsesincidetit thereto 'HouseSill'89
      is oonstitu~ional; that portionOf House siu8g'
      which &uthorizesthe paymentof expeneeawhich may
      be itiourredby a msmber~betweehsessionsworking,
      not as a pert of the Legislaturein eessiotior
      under an aesigtmentPram the Legislaturebetween
      eeeaione,is in violationof Section24, Article III,
      Constitutionof Texas.

                                  Yours very truly,

                                  WIU WIISON
                                  AttorneyGeneralof Texas




AFPRovND:

OPImIOIJ
       COMuITTgE

Gee. P. Blackbnm, Chainnan

J. Milton Richarason
L. P. Iollar
LeonardPassmore
Wm. It.Hemphill
George C. Reed

REVlEUEDFORlSEATTORSYGENE%L

BY:   W. V. Geppert
