Attorney General Opinion JM-0374

JIM MATTOX Attorney General Supreme Court Suilding P. 0. BOX 12548 Austin, TX. 76711. 2548 512/475-2501 Telex 9101874.1367 Telecopier 512/4750266 714 Jackson. Suite 700 Dallas, TX. 75202.4506 214/742-6944 4824 Alberta Ave.. Suite 160 El Paso, TX. 79905-2793 9151533-3464 10ot Texas, Suite 700 Hcxston, TX. 77002-3111 71312255886 606 Broadway. Suite 312 Lubbocft, TX. 79401.3479 8061747.5238 4309 N. Tenth. Suite 6 f.dc~tten. TX. 785wi6a5 512/662-4547 200 Main Pla2a, Suite 400 San Antonio, TX. 78205.2797 512/225-4191 An EqUill Opportunity/ Affirmative Action Employer The Attorney General of Texas November 20, 1985 Mr. Vernon M. Arrel.1 Comissioner Opinion No.JM-374 Texas Rehabilitat:ton Ccnnnission Ret Whether a member of the Texas 118 E. Riverside Drive Planning Council for Developmental Austin, Texas 711704 Disabilities is entitled to com- pensatory per diem Dear Mr. Arrell: You ask whether members of the Texas Planning Council for Developmental Disabilities may be paid compensatory per diem for performing their official duties. Section 112.312 of the Texas Human Resources Code provides for the creation of a,25-member planning council. Subsections (c) and (d) of section 112.01:2 detail the 18 gubernatcrial appointees to the council. Section 112.015 of the Texans Human Resources Code provides for the expenses of these council members as follows: (a) C:ouncil members appointed under Section 112.0121:~:) or (d) of this code serve without salary but are entitled to reimbursement for actual expenses incurred in performing their duties, including travel, meals, lodging, and telephone. long-distance charges. (Emphasis added). Your question arose because of article 6813f. V.T.C.S., and article V, section 4 of the 1986-87 General Appropriations Act. Article 6813f provides in full: Secthxl 1. In this Act, 'state board or commissi~on' means a board, commission, committee, council, or other similar agency in the state governmmt that is composed of two or more members. Sec. 12. A member of .a state board or com- mission is entitled to per diem relating to the mamber'e service on the board or commission. The amount cf the per diem is the amount prescribed by the General Appropriations Act. P. 1710 Mr. Vernon M. Arrell - Page: 2 (m-374) Sec. 3. Each law prescribing the amount of per -- diem relating tc membership on a state board or commission is :%spended to the extent of a conflict with th:z&. If the General Appropria- tions Act does not orescribe the amount of per diem to which a member of a state board -or commission is entitled by law, the law prescribing the amount of per diem is not suspended by this Act. If a law ,tmposes a limit on the number of days for which ,% member of a state board or commission is eatitled to claim per diem, the limit is not srspended by this Act. (Emphasis added). Article V, section 4 of the General Appropriations Act states: PER DIEM OF :3OARD OR COMMISSION MEMBERS. As authorized by Section 2 of Article 6813f, Texas Revised Civil Statutes Annotated, the per diem of state board and commission members shall consist of (1) the amounlz% of compensatory per diem at $30 per day; (2) actual expenses for meals and lodging as aurhorized by this Act not to exceed the maxi- mum amount allowed as a deduction for state legis- lators while awsy from home during a legislative session as established pursuant to the Internal Revenue Code 26 U.S.C. Section 162(i)(l)(B)(ii); and (3) transportation. In the event the maximum amount allowed ,313 a deduction for state legis- lators 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 cormsission 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 state employee, and as a board or commission member. (Emphasis added). Acts 1985, 69th Leg., ch. 980, art. V. 54, at 7761. In Attorney General 0pinion JM-349 (1985), we concluded that a member of the State Proper,ty Tax Board is not entitled to receive then compensatory per diem pror:tded for in article V. section 4, because _. p. 1711 Mr. Vernon M. Arrell - Page 3 (JM-374) section 5.01(i) of the Texas Tax Code states that "[al member of the board may not receiw compensation for his service on the board. . . .ll The opinion reasoned that article 6813f, V.T.C.S., was intended to preempt only "law prescribing the amount of per diem relating to membership m a state board or commission." Because section 5.01(i) "prohibim" rather than "prescribes" the payment of any amount that does not represent reimbursement for expenses, the opinion concluded that the compensation section of the rider based on article 6813f did not apply. Similar considerations apply to the case at hand. Section 112.015 specif,Les that "[clouncil members appointed under Section 112.012(c) or (d) of this code serve without salaq but are entitled to reimbursement for actual expenses. . . ." The flat rate compensatory per diem estxblished by subsection (1) of section 4 of article V of the General Appropriations Act clearly represents com- pensation for services rather than reimbursement for expenses. See Attorney General Opinion .JM-349 (1985). Although section 112.015 prohibits the payment of 'salaries" rather than of "compensation," we believe that the import of ,:hr provision is to prohibit payments which represent something otner than reimbursement for expenses. Accordingly, the members oE the council who are appointed according to section 112.012(c) and (d'l are not entitled to the compensatory per diem provided for in subswtion (1) of sectiun 4 of article V of the current General Appropriations Act. SUMMARY Members of the Texas Planning Council for Developmental I~isabilities who are appointed pursuant to sectI.on 112.012(c) or (d) of the Texas Human Resources Code are not entitled to the compensatory per diem provided for in subsection (1) of section l+ of article V of the current General Appropria‘tions Act. Jx& JIM MATTOX Attorney General of Texas MARY KELLER Executive Assistant Attornq General ROBERT GRAY Special Assistant Attorney General p. 1712 Mr. Vernon M. Arrell - Page 4 (JM-374) RICK GILPIN Chairman, Opinion Comittes Prepared by Jennifer Riggs Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory Jim Moellinger Jennifer Riggs Nancy Sutton Sarah Woelk I p. 1713