April7, 1988
Mr. S. Dale Ousley Opinion No. JR-888
Chairman
Texas Board of Irrigators Re: Per diem for members
1700 N. Congress Avenue of the Texas Board of
Austin, Texas 78701 Irrigators (RQ-1349)
Dear Mr. Ousley:
You ask whether members of the Texas Board of
Irrigators are entitled to receive payment of actual
travel expenses incurred in the performance of their
official duties. The Texas Board of Irrigators was
established by the passage of Acts 1979, 66th Leg., ch.
197, at 430 (article 8751, V.T.C.S). Section 3(g) of that
act governs the payment of per diem and travel expenses to
members of the board. Upon enactment, that section read
as follows:
(g) Each member shall receive as com-
pensation for his or her services $25 a day
for each day he or she is actively engaged
in official duties in addition to actual
aavel exnenses. (Emphasis added.)
In 1981, two years after the passage of the above-
quoted language, in an effort to standardize per diem
allowances for all Texas boards and commissions, the
legislature adopted an omnibus per diem statute. That
act, found at article 6813f, V.T.C.S., reads in pertinent
part as follows:
Sec. 2. (a) A member of a state board
or commission is entitled to per diem re-
lating to the member's service on the board
or commission. The amount of the per diem
is the amount prescribed by the General
Appropriations Act.
. . . .
Sec. 3. Each law prescribing the amount
of per diem relating to membership on a
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,
Mr. S. Dale Ousley - Page .2 m-888)
state board or commission is suspended to
the extent of a conflict with this Act. If
the General Appropriations Act does not
prescribe 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 imposes a limit on the number
of days for which a member of a state board
or commission is entitled to claim per diem,
the limit is not suspended by this Act.
Shortly after article 6813f took effect, the attorney
general interpreted its provisions as follows.:
the clear intent of article 6813f is to
supersede conflicting provisions regarding
per diem in statutes such as articles
4413(41) and 4515. In light of this, it is
apparent that article 6813f not only should,
but RR& prevail, to the extent of conflict,
over these statutes.
Attorney General Opinion MW-388 (1981). Subsequently, the
legislature amended the per diem provision for members of
the Texas Board of Irrigators as follows:
(g) Each member shall receive as com-
pensation for his or her ssrvices an amount,
provided bv the General Amromxatlons Act,
for each day he or she is actively engaged
in official duties in addition to actual
travel exoenses. (Emphasis added.)
Acts 1985, 69th Deg., ch. 795, 59.002, at 2819.
The current appropriations act prescribes psr diem
allowances as follows:
Sec. 4. PER DIEM OF BOARD OR COMMISSION
MEMBERS. a. 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)
compensatory per diem at $30 oer dav;
,-
(2) actual exnenses for meals and lodging
not to exceed $75 oer day; ixna (3) trans-
portation.
p. 4348
Mr. S. Dale Ousley - Page 3 (-888)
b. If a law enacted after Article 6813f
authorizes per diem for members of
particular state board'or commission, but
does not specify the amount of the per diem,
then the amount of the per diem shall be as
listed in the preceding paragraph. (Emphasis
added.)
General Appropriations Act, Acts 1987, 70th Leg., 2nd
C.S., ch. 78, art. V, 54 (a), at 1082. This $75 limit on
food and lodging expenses conflicts with the "actual
travel expenses" allowed by the board's enabling act and
gives rise to the current controversy.
In 1985, the attorney general clarified the combined
effect of article 6813f, V.T.C.S., and the appropriations
act on a particular board or commission's per diem pro-
vision.
[T]he basic preemptive effect of article 6813f
must depend primarily upon when it was en-
acted. As a general rule, when two statutes
deal with the same subject, the most recently
enacted statute prevails. Consequently, a
statute which is passed subsequent to article
6813f and which concerns the amount of per
diem a particular board's members are en-
titled to receive would create an exception to
article 6813f with regard to that board or
commission. Because section 4(l) of article V
of the current Appropriations Act provides for
per diem *[aIs authorized by Section 2 of
article 6813f,' it does not apply to per diem
established by other statutes, i.e., those
enacted after article 6813f. The statute for
the particular board and the board's appro-
priation would control.
Attorney General Opinion 3X-382 (1985).
The 1985 amendment to the Board of Irrigators statute
replaced the $25 a day compensatory amount of th8 original
act with the reference to the amount authorized in the
general appropriations act. The amendment retained the
language authorizing "actual travel expenses." This
statutory reference to the appropriations act eliminates
any argument that the legislature was unaware of the
existence of the appropriations act and the conflict
between the "actual travel. expenses" of the board's
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Mr. S. Dale Ousley - 'Page4 (JR-888)
statute and the monetary ceiling placed on food and
lodging
. . in
..the language
-. of
_ the appropriations
__ act. In our
opinion, tne amencatory language r8fl8CtS a legislative
intent to rainstate "the actual travel expenses" that had
been authorized by article 8751 before the enactment of
article 6813f. Consistent with the reasoning of Attorney
General Opinion JR-382 quoted above, it is our opinion
that the 1985 amendment to article 8751 supersedes article
6813f to the extent of any conflict. Accordingly, the
members of the Texas Board of Irrigators are entitled to
reimbursement for their actual travel expenses incurred in
connection with their service on the board.
SUMMARY
The members of the Texas Board of
Irrigators are entitled to receive reimburse-
ment for their actual travel expenses
incurred in connection with their service on
the board.
Very truly yo I: ,
.&I & /b-
JIM MATTOX
Attorney General of Texas
MARYEELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
-.
p. 4350
Untitled Texas Attorney General Opinion
Combined Opinion