               E        ORNEY        GENE
                      OF      EXAS




Honorable James M, Cotten
Chairman, Committee on Appropriations
House of Representatives
Austin, Texas
                        Opinion No. W-1046
                        Re:   Whether any members of the
                              Legislature are entitled to
                              a portion of the annual sala-
                              ry for the period from the
                              effective date of Section 24
                              of Article III of the Texas
                              Constitution to the convening
                              of the 57th Legislature, and
    Mr. Cotten:               related questions.
     You have requested an opinion on the following
questions:
          "1, Are any members of the Legislature
    entitled to a portion of the annual salary for
    the period from the effective date of the amend-
    ment to the convening of the 57th Legislature?

          “2. If the answer to the first question
    above is in the affirmative, is enabling legis-
    lation necessary to provide for these salaries,
    or will an appropriation for these salaries in
    the general appropriation bill of the 57th
    session be sufficient?

          “3. If the answer to the first question
    is in the affirmative, which members of the Legls-
    lature are entitled to the salary payment, the
    hold-over members whose terms of office expired,
    under the Constitution, at the date of the elec-
    tfon of their successor but who under the pro-
    visions of the Constftution held over in office
    until their successors qualified, or the members
    newly elected In the the November 1960 election?
                                                               I.




Honorable James M. Cotten, page 2 (~~-1046)


           "4, If the answer to question (3) is
     the newly elected members, is it necessary
     that they have qualiffed fop office by taking
     the constitutional oath during the period
     from the effectfve date of the amendment to
     the convening of the 57th Legislature?"
     Section 24 of Artfcle III of the Constitution of Texas,
as amended at the General Election held on November 8th,
1960, provides as follows:
           "Members of the Legislature shall receive
     from the Public Treasury an annual salary of
     not exceedin Four Thousand, E ight Hundred
     Dollars ($4,8 0O)'per year and a per diem of not
     exceeding Twelve Dollars ($12 per day for the
     first one hundred and twenty 1120) days only
     of each Regular Session and for thirty (30)
     days of each Special Sessfon of the Legislature.
     No Regular Sessfon shall be of longer duration
     than one hundred and forty (140) days.
           "In addftion to the per diem the Members
     of each House shall be entftled to mileage in
     going to and returning from the seat of govern-
     ment, which mile% e shall not exceed Two Dollars
     and Fifty Cents ($2,5O) for every twenty-five
     (25) miles, the distance to be computed hy the
     nearest and most direct route of travel, from a
     table af dfstances prepared by the Comptroller
     to each county seat now or hereafter to be
     established; no Member to be entftled to mileage
     for an extra Sessfon that may be called within
     one (1"Iday after the adjournment of the Regular
     or Called Session." (Emphasis added).
     It is noted that the underlIned portion of the above-
quoted constitutional amendment makes it mandatory that
members of the Legislature receive an annual salary. There-
fore, in answer to your first question, you are advised
that members of the Legislature are entitled to an annual
salary beginning at the effectfve date of the amendment
(November 25, 1960, the date of the canvassing of the
returns of the General Electfon held on November 8, 1960).
     We assume by your second question that you desire to
know whether the provisions of Section 24 of Article III,
Honorable James M. Cotten, page 3 (~~-1046)


as amended, constitute   pre-exfstfng law, authorizing the
Legfslature to make an appropriation for the payment of
the annual salary   provfded therein. Since the constitu-
tional amendment speciffcally states that members of the
Legfslature shall recefve from the public treasury an
annual  salary of not exceeding $4,800 per year, you are
advised that such language constitutes   pre-existfng law
authorizing an appropriation by the 57th Legislature for
the payment of such annual salary.
     An answer to your thfrd and fourth questions depends
on the date that an indfvfdual qualified as a member of
the Legfslature, In other words, ff an indfvldual member
of the 57th Legfslature qualffied prior to canvassfn of
the returns of the electfon held on November 8th, 1980,
he would be entftled to the compensation provfded fn Section
24 of Article III, as amended, until hfs successor quali-
fies for office. On the other hand, if an fndividual member
did not qualffy untfl some date subsequent to the canvass-
ing of the returns of the General Electfon held on November
8th, 1960, h%s predecessor in office would be entftled to
the compensatfon provided for fn Sectfon 24 of Article III
of the Constftutfon of Texas, as amended, until such time
as the successor of such fndfvfdual had qualiffed.
       You are, therefor,e#advfsed Sn answer to questions
Nos. 3 and 4# a newly eleoted member of the Legfslature who
d%d not qualffy until the convenfng of the 57th Legislature
would not be entftled to the constftutfonal salary prior to
the date of h%s qualfffcation, but the hold-over member whom
the newly elected member succeeded would be entitled to the
constitutional   salary prior to the date his successor quali-
fied,
     Summarizing OUP holding herefn, you are advised that
members of the Legfslature are entitled to the constitutional
salary, per d%em and expenses provfded therein, from the ef-
fective date of the amendment adopted at the electfon held
on November oth, 1960 (to-wft: November 25, 1960, the date
of the canvassing of the returns). Newly elected members
are entftled to the constftutfonal salary when they qualify
for office and may not receive the constitutional  salary
for any oeriod of time pr%or to the date they qualify for
offfce. Sold-over members are entftled to the constitu-
tional salary from the date of the canvassfng of the returns
Honorable James M. Cotten, page 4 (~~-1046)


of the General Electfonheld on Novembers8,.1960. .MembOrs
of .theLegislaturewho were not re-elected to oriloe will
receive the constitutionalSalary from the date of the
canvaasln of the returns of the General Eleotlon of
November 8th, 1960, to the date that the newly elected
member qualifies for office,

                      SUMNARY

     Seotion 24 of Article III of the Constitu-
     tion of Texas, as amended at the General
     Election held November 8th, 196C,,oonstl-
     tutee pre-existinglaw, authorizingthe
     Legislatureto appropriatemoney for the
     purpose of payfng the compensationand
     expenses provided therein to qualified
     members and it Is not necessary that any
     enabling legislationother than an ap-
     propriationbe enacted,
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas



                                 John Reeves
                                 Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Henry G.'B+aSwell
C. Dean Davis
Edward A. Cazares
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
