                                The Attorney General of Texas
                                               Feb:mary18. 1986
JIM MATTOX
Attorney General


Suprms Court Buildin            Mr. ClaytonT. Garrisou             OpinionNo.   34-427
P. 0. BOX 12549                 ExecutiveDirector
Austin, TX. 78711. 2549         EmployeesRetirementSystem          Rc: Whether the par diem limita-
512/4752501
                                   of Texas                        tions of section 4 of article
Telex 910/874-1357
Telecopier 51214750268
                                P. 0. Box 13207                    of the General AppropriationsAct
                                Austin,Texas 787!1                 apply to members of the Board
                                                                   Trusteesof the EmployeesRetire-
144 Jackson. SUitS 7M)                                             ment Systsm
Daiim.. TX. 752924509
214i742.Ba4
                                Dear Mr. Garrison:

4B24 Albda Ave., Suite 180           You ask vhethe:r the limitationscontainedin section4 of article
El Paso, TX. 799052793          V of the current GtcneralAppropriationsAct, Acts 1985, 69th Leg.,
91515333494                     ch. 980, at 7761,    apply to members of the Board of Trustees of the
                                Employees.,Retirement:Spstsm of Texas.
    11 Texas. Sulls 799
                                             ..
 ..suston. TX. 77002-3111            In general. mambers of-the state boards and coamissious ire
7131223-5886                    entitled to per dim pursuant to article6813f. V.T.C.S.,in coajunc-
                                tion,with the General AppropriationsAct. See Attorney         General
                                Opinions JM-382 (1985); JM-152 (1984);Mu-388 (1981). Section 4
898 Broadway. Suite 312
Lubbock. TX. 794013479
                                articleV of the currentact provides:
SW74?-522.9
                                             PER DIW OF BOARD OR COMMISSIONMWBRRS. As
                                         authorirmlby Section 2 of Article 6813f. Texas
 4309 N. Tenth, Suite B
 McAllen. TX. 78501-1085
                                         Revised Xvi1 StatutesAnnotated.the per diem of
 5121082.4547                            state board and com&sslon members shall consist
                                         of (1) tlm amountsof compensatoryper diem at $30
                                         per day; (2) actual expensesfor meals and lodging
 200Maill Plaza.suite 400                a s luth+zed    by this Act not to exceed the
 San Antonio, l-X. 78205-2797
 512/2254191
                                         maximum amouat allowed as a deduction for state
                                         legislatwts while avay from home during a
                                         legislative session as established pursuant to
                                         the Intemal    Reveuue Code 26 U.S.C. Section
                                         162(l)(l)(B)(ii); and (3) trausportatiou.In the
                                         event  the maximum amount allowed as a deduction
                                         for staee legislatorspursuant to the Interual
                                         Revenue Code as provided above is raised to au
                                         emount above $100, the maximum -ut    of the meals
                                         sad lod$;lng portion of the per diem paid to board
                                         and cormpilsslonmembers under this section shall
                                         not exceed $100. (Emphasisadded).




                                                        p. 1957
.   I




        Mr. ClaytonT. Garrison- I'age2   (JM-427)




            The first paragraph01'articleV providesthat

                 [tlhe provisions:setforth in this and all other
                 Articlesof this A.ctare limitatiousou the appro-
                 priationsmade irtthis Act. It is the purpose of
                 the Legislature :ia euacting this bill only to
                 appropriatefundo and to restrictand limit by its
                 provisionsthe amount and conditionsunder which
                 the appropriaticnscan be expended. (Emphasis
                 added).

        This provisionreflects tk,econstitutionalprinciple that appropria-
        tion bills shoulddeal only with appropriations of funds; a rider to a
        general appropriationsbill caunot amend, modify, or repeal general
        lav. See Tex. Coast. art. 1.11,635; Moore v. Sheppard,192 S.W.2d 550
        (Tsx.1946); Coates v. W:~~I.     613 S.W.2d 572 (Tex. Civ. App. -
        Austin 1981, 110Vrit).

             In light of these prov~isious
                                        , and assumingwithout decidingthat
        the board is a "stateboard"within article6813f and articleV of the
        AppropriationsAct, you sugtgestthat section4 of article V does not
        apply to the board membew because the funds from which the board
        memhers' expenses are psid are not properly deamed "appropriated"
        funds Within the meaningojiarticleV. We .agreewith your coaclusioa.

             It has been suggestedthat, regardlessof whether the article V
        limit applies directly tc these funds. the measure establishedin
        articleV applies to the funds. Section25.208 of Title 1lOB provides
        in subsection(a), as follows:

                    The board oji trustees shall compensate all
                 persons whom it maploys and shall pay all expenses
                 necessaryto operate the retirementsystemat rates
                 and in amountsapprovedby the board.    Those rates
                 and amouutsmay sot exceed those paid for the same
                 or similarserrria-!
                                   for the state. (Emphasisadded).

             This provision appeara;to apply.to "all expenses necessary to
        operate the retirement system." Expenses necessary to operate the
        retiremeutsystem arguablyriaclude per diem for board members. Thus,
        this section appears to limit the board to the article V limit
        applicableto other state b'oardmembers. Section 25.208, houwer,  IS
        in SubchapterC of Chapter 25 of Title 1lOB. This subchapter,by its
        title, deals with "Officer!%
                                   and Employeesof [the]Board of Trustees."

            In contrast,SubchapterA of chapter25 deals with the "Board of
        Trustees." Section 25.006 of Subchapter A authorizes certain
        trustaes, subject to appwval by tha whole Board of Trustees, to
        receive compensationand all expensesnecessaryto the performanceof
        their officialduties:


                                      P. 1958
    Mr. ClaytonT. Gerrisoa- P,kge3    (a-427)




                (a) Ttusteeswho are coatributiagmembers of
             the retirameat s:rstemserve without compensation
             but are entitledto reimbursementfor all aeces-
             sery expensesthM they incur in the performeace
             of officlalboard (duties.

                (b) Subject t:athe approval of the board of
             trustees, truste!sswho are not contributing
             members of the retirementsystemmey receive:

                   (1) compenaatioa;
                                   and

                   (2) all nc:cessaryexpenses that they incur
                in the perforsanceof officialboard duties.

    Thus, if both section 25.006 and section 25.208 were to apply to
    trustees, they would be in conflict. We do not believe that the
    legislatureintendedthis result. Moreover, when the legislaturehas
    limited or provided for something in one section of a statute and
    excludedit in another,it should not be impliedwhere excluded. See
    generally Smith v. Baldwia.~611 S.W.2d 611,616 (Tex. 1980). BecaK
    the limit la section 25.208 does not appear in section 25.006, to
    imply such a limit would u,lolatethfs well-settledrule of statutory
.   construction.:                                :'.

        The per diem authorizei.
                               by section25.006 of Title llOB, V.T.C.S.,
    for board members is to be paid out of the "expense account"created
    by section25.311 of Title 1lOB:


                 (a) The retiremeateystem mbell deposit in the
              expeaseaccountmrtzmbershipfees, maey requiredto
              be treaeferredto the accountuader Sectioa25.314
              of this subtitle,ead any apprwrlatioae ude be
              the legisleture121the eccouat.

                 (b) The retir~aasnt system shall uay from the
              expanse account-admiaistratioacad meiatenaace
              expenses of the-retirement systsm except those
              expenses the vay;eat of which is provided for by
              Se&m    25.2Oi(c)or 25.313(b) of-this subtitle;
              (Pophasisadded);

          Tbe sectioa 25.311 aarpeaselccouat coaeiste of 1) membership
     fees, 2) money transferred,, pursuant to section 25.314(b).from the
     interest account, which c'xlsists of earnings from the iavestmentof
     the aseats of the Employetrs RetirementSystem. ead 3) eay appropria-
     tioas mede by the legislatureto the account. Tbe interest account
     includes earnings from inrestmeat of the system's assets. 125.310.
     The assets of the systemincludeboth employeeend state coutributions



                                     p. 1959
    Mr. ClaytonT. Garrison- Pnjsa4      (JM-427)




    to the system. See S525.Nll - 25.403. You suggest that the funds
    administeredby G     board,,includingthis expense'account,are not
    properly deemed "appropria!:edfunds"vithin the meaning of article V
    because they ara trwt funds. Bacausa the portion of the account
    which consists of membershipfees and earnings on the iavestmentof
    employee contributionsis wra than sufficientto cover the per diem
    expanse in question,ve need not decide vhether all of the funds in
    this expense account are "expropriatedfunds" within the maanlng of
    articleV.

         In Attorney General Opinion WW-565 (19591, this office decided
    that certain funds adminiszaredby the Employees Retirement System
    "may be expended. . . in accordancewith the general statutesper-
    taining to the [system]vjthout prior specific appropriat%onsby the
    Legislature." See also Attorney General Opinions m-276 (1980);
    H-681 (1975); M-949 (1971). Attorney   General Opinion VW-565 con-
    sidered the scope of article VIII, section 6 of the Texas Constitu-
    tion, a provision vhich prohibits the vithdraval of funds from the
    state treasuryvithout a specificappropriation.Relying on Friedman
    vi American Surety Compaq of Nev York, 151 S.W.2d 570. 579 (Tex.
    1941). the opinion concluded that funds received by the Employees
    RetirementSystem from menberahipfees and earnings from the invest-
    ment of the system’s assets fall within an exceptionto these con-
.   stitutionalprovisionsas "ttist"fun&. ..

         The funds providedfo::in the EmployeesRetirementSystem Act, in
    effect when Attorney Gewral Opinion WW-565 vas decided, vera
    collectedunder statutoryj?r:ovisions  which set the funds apart for the
    specificpurposes for vhicb they vere collected;they could be used
    for no other purposas. The opinionreasonedthat the funds became the
    propertyof a public trust createdfor the benefitof the employeesof
    the state - not the propextyof the state in its sovereigncapacity.
    See generallyFriedmanv. American Surety Company of Nev Pork, m
    Because the act governin(~the system did not contemplatethat the
    funds vere to be deposited:Lnthe-statetreasury &,-in        the general
    revenue fund, but rather in a special trust fund held separatelyin
    the state treasury. the constitutionalrequirementfor a specific
    ;;~f~~lation for upendirurea did not apply. After this opinionwas
                language vaa a,doptedin the Texas Constitution which
    clariflidthat "[tlhe asae:ta   of a [publicretirement]system are held
    in trust for the benefit of &are       and may not be diverted." Tu.
    Conat. art.   XVI, 567(a) (1).

         We are avare that thl:Texas courts have held that an employee's
    interestin such trust funds is subject to the right of the leglsla-
    tura to amend the lavs on which the pensionsystems are founded. See.
    a,    City of Dallas v. T:~uawll,101 S.W.2d-1009.1013 (Tea. 1937);
    Lack v. Lack, 584 S.W.2d &96,-    (Tax. Civ. bpp. - Dallas 1979. vrit
    ref'd n.r.e.);  Cook v.~ @ployees Retirement System of Texas, 514
    S.W.Zd 329. 331 (Tex. Civ, App. - Texarkana1974. vrit ref'd n.r.e.1.



                                   p.   1960
Mr. ClaytonT. Garrison- Page 5    (J&427)




These cases,however. did not address articlaXVI. section 67, of the
Texas Constitution,vhich n'asadoptedby specialelectionin 1975. As
indicatad,subsection(a)(l)of section67 providesthat "[tlhe assets
of a system are held in trust for the benefit of members and may not
be diverted." It is unnecessaryto delve into this issue at this
time. because we do not address the right of an employee to trust
funds in a retirementsystem;we address only the scope of the term
"appropriatedfunds" under'article V of the currant Appropriations
Act.

     Applying the rationale,of Opinion WI-565 to the case at hand
compels the conclusion that, because a general appropriation is
unnecessary for the axpendi.tureof these funds,limitationson general
appropriationsare inappli~ablato these constitutionaltrust funds.
Accordingly,va concludethat the expense fund establishedby section
25.311, from vhlch the members of the board of trusteesare to be paid
any per diem properly duo under Title llOB, is composed of trust
funds,not "appropriatedfunds"within the meaning of articleV of the
current General AppropriatLms Act to the extent that it consistsof
membership fees and interczston amployee contributions. Thus, the
limitationscontainedin s'wtion4 of articleV of the currentAppro-
priationsAct do not apply t:othe expenditureof such funds.

                            SUUMARY                       .

             The portion of the expense fund establishedby
         section 25.311 of Title 1lOB. from which the
         members of the B'xrrdof Trustees of the Employees
         RetirementSystaa of Texas are to be paid any par
         diem properlydua them, is composedof funds held
         in trust for the employees of the state to the
         extent that it consists of membarehip fees and
         interest on emILoyees' contributiona. Because
         these are trust funds, rather than "appropriated
         funds" within thlcmeaning of article V of the
         current General AppropriationsAct,    the limita-
         tions contained. to section4 of articleV do not
         apply to the per diem vhich may be due a board
          member.


                                    -$..m/#(&
                                              MATTOX
                                       AttorneyGeneralof Texas

JACK HIGBTObER
First AssistantAttorneyG,aneral



                                 p. 1961
Mr. ClaytonT. Garrison- Page 6   (JM-427)




MART KELLER
ExecutiveAssistantAttorneyGeneral

ROBERT GRAT
SpecialAasistantAttorneyGeneral

RICK GILPIN
Chairman,OpinionCosuaittee!

Preparedby JenniferRiggs
AssistantAttorneyGeneral




                                 p. 1962
