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DAN MORALES                             May 2,199l
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   Honorable John Sharp                        Opinion No. DM-23
   Comptroller of Public Accounts
   L.B.J. State office Bldg.                   Re: Whether       the  legislature may
   Austin, Texas 78774                         authorize expense payments to members
                                               of the legislature (RQ-73)


   Dear Mr. Sharp:

           You ask whether the legislature may “authorize expense payments to
   members of the legislature to cover the expenses incurred during a regular or
   special session as a supplement to the per diem and mileage mentioned in Article
   III, Section 24 of the Texas Constitution.” We conclude that the legislature may
   authorize such payments so long as the payments constitute reimbursement for
   “legislative expenses.”

          Article III, section 24, of the Texas Constitution provides:

                 Members of the Legislature shall receive from the Public
             Treasury a salary of Six Hundred dollars ($600) per month.
             Each member shall also receive a per diem of Thirty Dollars
             ($30) for each day during each Regular and 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 at the same rate as prescribed by law
             for employees of the State of Texas.

           The language of article III, section 24, has been amended numerous times
   since the section’s original inclusion in the’constitution in 1876. The provision for an
   annual salary in addition to mileage and per diem was first added by amendment in




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1960. The salary amount was increased by amendment in 1975. The 1975
amendment also changed the section’s provisions regarding mileage, which
previously had provided a specific dollar amount for a member’s mileage “in going
to and returning from the seat of government.” The 1975 amendment removed this
limitation and provided simply that members were entitled to mileage as provided
by law for state employees.

       TerrelZv. King, 14 S.W.2d 786 (Tex. 1929), considered a statute creating a Tax
Survey Committee composed in part of members of the legislature and providing for
“compensation” of such committee members of $10 per day for each day actually
served and for payment of their “expenses” for railroad fare, hotel, telegraph,
telephone, postage, and express charges. The Terre11court found that article 111,
section 24, limited payment of compensation to legislators to that provided for in
that section, and struck down the portion of the statute calling for the additional $10
per day compensation. Id. at 791. Finding no constitutional limitation on payment
of “legislative expenses,” however, the court upheld the portion of the statute
providing for payment of “expenses,”noting that payable “legislative expenses” would
include “expenses reasonably incurred in order to perform duties devolving on duly
authorized committees of the Legislature.” Id at 792; see also Spears v. Sheppard,
150 S.W.2d 769 (Tex. 1941) (article III, section 24, per diem is compensation for
services required of member during term of office; entitlement to per diem does not
depend on actual attendance at legislative sessions); Attorney General Opinion
V-772 (1949) (lump sum payment of $10 per day for contigent expenses during
session barred as prohibited additional compensation).

        Subsequent attorney general opinions consistently invoked a distinction
between “legislative expenses” and “personal expenses.” See gener@y Tex. Const. art.
III, 0 51 (prohibiting gifts of public funds). Expenses deemed “personal” were those
not related to a legislator’s exercise of official duties, and-were not reimburseable.
Thus, a blanket expense allowance to members without regard to the nature and
amount of expense was held to be an unconstitutional “gratuity” to the extent “items
claimed constituted personal business of the respective members.” Attorney
General Opinion V-84 (1947) at 4.

        In addition to drawing a distinction between “legislative” and “personal”
expenses, the authorities articulated a distinction between expenses incurred during
a legislative session and those incurred between sessions. This distinction was based
on the pre-1960 language of section 24 that had only allowed for per diem




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compensation and mileage expenses incurred during or directly in connection with
legislative sessions. These early opinions established a presumption that all expenses
incurred between sessions were personal, regardless of the nature of the expense.

        The presumption that interim expenses were personal was first articulated in
Attorney General Opinion O-3778 (1941). That opinion considered a senate
resolution which allowed senators a blanket $50 per month allowance during an
interim between sessions for defraying stenographic, telephone, telegraph, and
postage expenses incurred in transacting state business incident to the office of
senator. The opinion followed the rule that under the constitution, “personal
expenses are not allowable, whereas legislative expenses are.” Id. at 9. It further
concluded that while expenses of members during a session were presumptively
payable “legislative expenses,” expenses incurred by a member between sessions
working at his own discretion’and not under extraordinary assignment from the
legislature were presumptively “personal expenses.” The source of the presumption
was the language of article III, section 24, which provided for legislative per diem
only when the legislature was in session. The opinion accordingly found the
resolution in question purporting to establish an additional blanket allowance for
interim expenses, constitutionally invalid. See also Attorney General Opinions
WW-563 (1959) (provision invalid to extent it authorizes state payment of expenses
incurred by members working neither as a part of legislature in session nor under
legislative assignment); WW-177 (1957) (expenses for members’ stationery, supplies,
postage, and telephone and telegraph calls during interim not “legislative expenses”;
thus provision for payment thereof invalid); WW-148 (1957) (provision that interim
telephone expenses must be for “official calls” insufficient to render resolution
providing payment of such expenses constitutional); WW-131 (1957) (members’
telephone expenses during interim not payable); V-211 (1947) (payment of
member’s interim newspaper subscription would be for personal expense and thus
unconstitutional).

       With the 1960 and 1975 amendments, compensation and mileage were no
longer tied to legislative sessions. This change marked an acknowledgement that
the demands of legislative duty frequently extend between sessions. Construing the
1960 salary amendment to recognize “that official duties of members of the
Legislature are performed throughout the year and are not limited to duties
performed while the Legislature is in session,” Attorney General Opinion M-104
(1967) concluded that interim secretarial, telephone, and other office expenses of
members might therefore be considered “legislative expenses” which could be paid




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for with state funds. Thus, as of adoption of the 1960 and 1975 amendments, the
constitution no longer supported a presumption that interim expenses were
personal. The constitutionality of a particular expense is now determined solely by
reference to the nature of the expense and the relation of that expense to a
legislator’s official duties. The time in which the expense is incurred no longer
appears to be a determining factor. What constitutes a nonreimbursable personal
expense, as opposed to a reimbursable legislative expense, is a determination that
must be made on a case-by-case basis.

        Reimbursement of mileage expenses is dealt with separately in section 24.
There are no cases or attorney general opinions yet construing the effect of the 1975
mileage amendment. In our opinion, the current mileage provisions of article III,
section 24, contemplate that a member is entitled to the mileage expenses for all
travel necessary for attendance at legislative’sessions or in carrying out other official
business of the legislature. Compare V.T.C.S. art. 6823a (state employees entitled
to travel expenses incurred “in the active discharge of their duties”). We do not
believe that the 1975 mileage provisions altered the basic distinction previously
developed between personal and legislative expenses. If a trip is not necessitated
by official legislative business, mileage expenses incurred are personal and not
payable with state funds.

        In response to your question, we conclude that the constitution does not
restrict payment of the “legislative expenses” of legislators incurred during a
legislative session. Although the 1960 and 1975 amendments to article III, section
24, dispensed with the presumption that interim expenses were personal expenses,
the amendment did not alter the conclusion that the constitution prohibits payment
of personal expenses or compensation to members of the legislature in addition to
the amounts provided for in that section. This continues to be the standard by
which the propriety of expense reimbursement for legislators is measured.

        You have not asked us to consider the constitutionality of any particular
expense item or appropriation for reimbursement of expenses, and we have not
attempted to do so in this opinion. We have, however, set forth the constitutional
parameters within which legislative appropriations for legislators’ expenses should
be construed.




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                                   SUMMARY


              Article III, section 24, of the Texas Constitution does not
         limit payment of “legislative expenses” to members of the
         legislature.

                                                Very truly yours,




                                                DAN      MORALES
                                                Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

b&4RY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Madeleine B. Johnson & William Walker
Assistant Attorneys General




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