Attorney General Opinion JM-0349

JIM MAlTOX Attorney General Supreme Court BulldIng P. 0. Box 12545 Austin. TX. 78711-2545 512U75-2501 T**x em57c1357 TalecoDlsr 5121475.0286 714 J8ckson. Suite 700 Dallas. TX. 752024505 214n42B944 4S24 Alberta Ave.. Suite 160 El Pare. TX. 799012793 915/5333464 . Texas. Sui1e 7DO tio~ston. TX. 770029111 713/22365S5 SO6 Broadway, Suite 312 Lubbock, TX. 79401-3479 SO5/747.5238 4309 N. Tenth. Suits B McAllen. TX. 78501-1685 5126524547 200 Main Plaza, Suite 400 San Antonio. TX. 782052797 51212254191 An Equal Opportunity/ Affirmative Action Employer The Attorney General of Texas .kugust 31, 1985 Hr. Ron Pattarson Executive Director State Property Tax P#oard 9501 North 18-35 Austin. Texan 78161 Opinion No. JM-349 Rt: Whether members of the State Property Tax Board are entitled to compensatory per diem Dear tlr. Pattenon: You have requested our opinloa regarding the payment of compensatory per di.em to members of the State Property Tax Board. Article 6813f, V.T.C.S., last amended In 1983, provides in Its entirety: Sectlc’n 1. In this Act, “state board or comlssic~n” means a board, commission, committee, council, IDr other similar agency In the state governmet t that Is composed of two or more members. kec. 2:. A member of a State board or conmlssicn Is entltled to per diem relating to the mamber’m a’errrick on the board or commission. The amount of the per diem Is the amount prescribed by the General Appropriations Act. 3ec. 3. Each law prescribing the amount of per diem rel~ltlng to membership on a state board or comlasian la auspeaded to the extent of a conflict with this Act. If the GtntXti Appropriations Act does not prescribe the amount of per dj,em to which a member of a state board or commissloa ICI entitled by law, the law prescribing the amount of per diem ia not suspended by this Act. If 1~ la+ lmpoeea a limit m.the number of dayr for vhlch a member of a state board or comlasloo is entitled to claim per diem. the llmlt la tmt suspended by this Act. p. 1593 . I Ur. Ron Patterson - Page 2 The General Appropriations Act for the 1983-85 bieoolum established a per diem allowance consisting of actual expenses for meals and lodging (not to exceed the maximun daily amount allowed as of the first of January of that year for federal income tax purposes as a deduction for ordinary and necessary busineta expenses) and transportation plus the amountf~ of compensatory w diem apecif ically authorized in this Act or as otherwise authorized by this Act. Acts. 1983, 68th Leg., cll., 1095, art. V. $4. The uew General Appropriations Act. which became effective on September 1. 1985, substitutes for the foregoluf; the following language: Sec. 4. PER DIW OF BOARD OR COMMISSION MaBERS . As auttlcrized by Section 2 of Article 6813f. Texas Revirred Civil Statutes Annotated, the per diem of state board and commlasion members shall consist of (1) the amounts of compensatory per diem at $30 I’er day; (2) actual expenses for meals and lodging as authorized by this Act not to exceed the maximum amount allowed as a deduction for state legislators while away from home during a legislative session as established pursuant to the Internal Rewnue Code 26 D.S.C. Section 162 (I) (1) (B) (Ii) ; and (3) transportation. In the event the maximuu amount alloved as a deduction for state legiale~tora pursuant to the Internal Revenue Code as provided above is raised to an amount above $100, the maximum amount of meals and lodging portion of the per diem paid to board and commission members under this section shall not exceed $100. The items of appropriation for per diem of board or commlssi.ca members include compensatory per diem only. No employee paid from funds appropriated by this Act shall be paid both a salary and compensatory per diem for concurrent service as a atr.te employee and as a board or commission member,. Acts 1985, 69th Leg., ch. !)80. art. V. 14. The principal difference betveen the two riders la that, for 1985-87. the rate of “compensatory per diem” Is specified in the rider at e particular amount, i.e., $30 per day. as well as in the :tine item for compensatory per diem in each agency’s appropriation. 1.n the prior act. only the latter was p. 1594 Mr. Ron Pattereou - Paga 3 included. In both Instance@; hwever, as vell aa hlatorlcally, the kind of flat rate compmaatory par diem l atabllehed by the Appropriatlonr Act does not repressat reimbursement for l xpenses but compenaatiou for e.ervicer. Thlo office reached a similar conclualou in Attorney General Opinion W-388 (1981): We believe the vocding of article 6813f and this appropriations acj: provlrlon plainly reflects a legislative intent to adopt, for at least the tvo year biennium. a more expanelve definition of per diem which embraces both actual expenaee for meals and lodging ,a& a flxally rate paymant. When a per diem which represents compensation, in contrast to per diem which repreeentr reimbursement for expenses. is provided by law for a particular office, that office may be held to be "lucrative," Wlllla v. Potta. 377 S.W.2d 622 (Tex. 1964). and thus, an "office of emolument" for purposes of article 16. aectloo 40 of the Texas Constitution, the dual offi':e holding provlaion. As a result, If a member of the State Property Tax Board is entitled to compensatory per diem, he could be prohibLt:ed from holding any other office of emolument. Compare Whiteheed v. Julian, 476 S.W.2d 844 (Tex. 1972); Willis v. Potts. suprcr. In our opinion, hovever, a,mamber of the Board is not entitled to compensatory per diem. Sect,Lon 5.01(i) of the Tax Code provides: A member of the bo;i:rd may not receive compensation for his service ou the board but is entitled to reimbursement for actual and neceaaary expenses. as provided by 1eg:lslative appropriation. incurred vhlle on travel etatus in the performance of official duties. Section 3 of article 6813f, the statute vhich furnishes the basis for the per diem rider, preempts every "law prescribing the amount of per diem relating to membership on a state board or c~laslon." Section 5.01(l) lo not, hovever. such a lav. Rather tban "preacrlbing" an amount of per diem. that proMsion Prohibits the payment of any amount that does not represent reldburaement for expenses. Numerous other statutes apeclflcally prohlb:t the payment of compensation to board or coxrniraion members, and to the extent they do so, they are not preempted by article 6813f. See, e.g., Education Code, C161.026, 85.15. This conclusion Is bcAatered by the deletion of a key sentence from the original bill vhlch became article 6813f. Rouse Bill 401 Initially provided: p. 1595 ns. Ron Pattereon - Psgc 4 If a law prohit,its a per diem to be paid to 6 member of a etate board or CO666isSiOU. the prohibition is smpended by this Act. We believe that the dlrletion of this language from the final bill a6 enacted indicates (r largislative intent in article 6813f not to modify the provisions of prlrticular statutes vhich prohibit payment of compensation. Accordingly, a member of the State Property Tax Board 1s not entitled to receiw compensatory per diem for service on the Board. Since we ansver ycur first question in the negative, we need not address your other quetztione. SUMMARY A member of the State Property Tax Board is not entitled to recct:lve compensatory per diem, a6 provided in article V, section 4 of the current General Approprirltions Act, for service on the Board. JIM MATTOX Attorney Geueral of Texas TOM GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorney General ROBERT GRAY SpeCid ASSiStant Attorney Gmeral RICK CILPIR Chairman, Opinion Committee Prepared by Rick Cilpln ASsiSt.¶nt Attorney General p. 1596 , Mr. Ron P6tterson - P6ge 5 APPROVED: OPINION COMMITTEE Rick Cilpin. Chairman Colin Carl Susan Garrison Tony Guillory Jim Hoellinger Jennifer Riggs Nancy Sutton p. 1597