Untitled Texas Attorney General Opinion

The Attorney’ General of Texas :?obruary13, 1986 JIM MATTOX Attorney General Supreme Court Building Mr. Roger D. Shipman Opinion No.JM-426 P. 0. Box 12548 Executive Secretmy Austin, TX. 78711-2548 Taxas Board of Veterinary Be: Per diem for members of 5121475-2501 Telex 910/874~13S7 Medical Examinfm the Board of Veterinary Medical Telecopier 51Z475.0266 3810 Medical Parkway, Suite 119 Examiners Austin, Texas 7t:756 714 Jackson, Suite 700 Dear Mr. Shipman: Dallas, TX. 75202-4506 2141742-8944 You seek cla:r%ficationof Attorney General Opinion JM-382 (1985) with regard to rc~Lmbursement of expenses for members of the Texas 4824 Alberta Ave., Suite 160 Board of Veterinary Medical Examiners. In specific, you ask whether El Paso, TX. 79905-2793 Attorney General (IpinionJM-382 compels the conclusion that members of 91515353484 the board are not entitled to any reimbursement for the meals and lodging portion of travel expenses incurred in the performance of 1001 Texas, Suite 700 : their official duties. Houston, TX. 77W2.3111 7131223-5886 Attorney Gemral Opinion JM-38i answered saveral questions about the scope of art:lcle 6813f, V.T.C.S., and of an Appropriations Act 806 Broadway, Suite 312 rider which implements article 6813f. See General Appropriations Act, Lubbock, TX. 79401.3479 Acts 1985, 69th I,e.g.,ch. 980, art. V.4, at 7761. Article 6813f SGW7476230 provides in full: scct:.on 1. In this Act, 'state board or corn- 4309 N. Tenth. Suite S McAllen, TX. 7S5Ol.lS55 mission' means a board, comslissioYY,comittee, 5121682-4547 council:, or other similar agency in the state govenm:rt that is composed of two or more members. 200 Main Plaza. Suite 400 San Antonio, TX. 752052797 512&?25-4191 Sec. 2. A member of a state board or comnis- sion ie entitled to per diem relating to the member's? service on the board or commission. The An Equal OpportUnitYl ammnt tz'the per diem is the amount prescribed by Affirmative Action Employer the Genczal Appropriations Act. sec. 3. Each law prescribing the amount of per diem relating to membership on a state board or commiss:~~nis suspended to the extent of a con- flict w:T:hthis Act. If the General Appropriations Act doe:;not prescribe the amount of per diem to which a :nember of a state board or coumisoion is p. 1951 t Mr. Roger D. Shipman - Page!2 (JM-426) entitled by law, the law pr?scribing the amount of per diem is not suspended by this Act. If a law imposes a limit #)n the number of days for which a member of a stats?board or commission is entitled to claim per diem., the limft is not suspended by this Act. (Emphnr~isadded). Section 4 of article V of the current General Appropriations Act implements this statute by prescribing per diem: PER DIEM OF BOARD OR COMMISSION MEMBERS. As authorized by Swtion 2 of Article 6813f, Texas Revised Civil Statutes Annotated, the per diem of state board and commission members shall consist of (1) the anoun1;1of compensatory per diem at $30 per day; (2) act@ expenses for meals and lodging as authorized try this Act not to exceed the maximum amount rJlowed as a deduction for state legislators while away from home during a legislative sesc;ion as established pursuant to the Internal Rcwnue Code 26 U.S.C. Section 162(1)(1)(B)(11); and (3) transportation. In the event the maximrta~Wunt allowed as a deduction for. state legisLatora pursuant to the Interhal Revenue Code as provided above is raised to an * amount above $lOO:,the maximum amOunt of meals and lodging portion DE the per diem paid to board and commission members under this section shall not exceed $100. The items of appropriation for per diem of board or conuuisr~ionmembers include compensatory per diem only. No employee paid from funds appropriated by this Act shall be paid both a salary and compnmatory per diem for concurrent service as a state employee and as a board or commission member,, (Emphasis added). Thus, the term per diem here includes three components: compensation, reimburseanentfor meals an'ilodging, and reimbursement for transporta- tion. You are concerned about whether this rider applies to members of the Board of Veterinary M~?dicalExaminers or whether section 5(h) of the Veterinary Licensing Act, article 7465a, V.T.C.S., applies. Section 5(h) provides: Each Board member is entitled to a per diem as set by legislati?a appropriation for each day that p. 1952 Mr. Roger D. Shipman - Page 3 (JM-426) the member enga$:esin the business of the Board. A member may nEt receive any compensation for travel sxpenses, including expenses for meals and lodging, other zhan transportation sxpenses. A member is entitlEi to compensation for transporta- tion expenses as pres&ibed by the G&era1 Appropriations AX. (Emphasis added). You indicate that the comptroller is refusing to reimburse board members for meals and lodging based on this section and on language in Attorney General Opinion 34-382. Apparently, the compzroller is relying on our response to his third and fourth question:3in Attorney General Opinion m-382. His third question was whether Attorney General Opinion MU-388 is still valid as it appltes to article 6813f repealing any statute which LLmits the amount of travel reim- bursement to whi-11a board msmber is entitled. Attorney General Opinion JM-382. responded that the reasoning in Attorney General Opinion JM-349 (1985) limited the broad language in Attorney General Opini& Ml-388 (1980). Attorney General Op,lnion MW-388 examined article 6813f and determined that the legislature intended article 6813f to override conflicting statutes regarding per diem. Thus, a limit on the Board of Nurse Examiners, that s “member may not receive any compensation for travel expenses, inclrdlingexpenses for meals and lodging, other than transportation expenc;c:s,"was held to be superseded by article 6813f in conjunction with ,theAppropriations Act rider then in effect. The opinion could be read to mean that article 6813f overrides -all statutes regarding per diem. In Attorney General, Opinion J&349, however, this office concluded that a member of the State Property Tax Board is not entitled to receive the compensatory per diem provided for by article 6813f and by the current k?l)ropriationsAct rider concerning per diem. Attorney General Opinion M-349 dealt with section 5.01(i) of the Tax Code: A number of the board may not receive compensation for his service k the board but is entitled to reimbursement fo; actual and necessary expenses, as provided by I$islative appropriation, incurred while on travel. status id-the performance of official duties. (Emphasis added). p. 1953 Mr. Roger D. Shipman - Page:4 (JR-4261 Because article 6813f was Lntended to preempt only "law prescribing the amount of per diem relating to membership on a state board or commission" and because this statute "prohibited" rather than "prescribed" the payment of compensatory per diem, Attorney General Opinion .I&349 concluded ,that the compensation component of the current Appropriations Act rider regarding per diem does not apply. Attorney General Opinion Xi-382 reiterated the conclusions in Attorney General Opinion JM-349. The ambiguity of article 6813f and of the rider lies in the ILW of the term "per diem." As we stated in Attorney General Opinion JW382: The primary prclblemat issue here arises because article 6813f en:ompasses two concepts: compensa- tory per diem an'd per diem which represents re- imbursement for expenses. See Attorney General Opinions JM-349 111985);Fig-388 (1981). Although the term 'per diem' has historically encompassed both types of prlyments,very differmt considera- tions apply to ea#ch. Texas statutes often created one flat rate payment which included both compensa- tory and reimbursamant per diem. Other statutes provided only for reimbursement for expenses. Some statutes expressly prohibited the' receipt of com- pensation. In creating the numerous state boards and commissions, however, the legislature cleariy intended that some would receive compensation, i.e.. payment for services, whereas others would 110t. Article 6813f is ambiguous because it fails to adequately de:.ineatebetween the two. The opinion concluded that the legislature could not have intended article 6813f, in conjunctii>nwith the General Appropriations Act, to transform all state boards and commissions into lucrative positions, thereby creating myriad dual office-holding problems. Consequently, a cons,:lmction of article 6813f was adopted in Attorney General Opinion JM-382 which applied the language in the statute itself that only laws "prescribing the amount of per diem" were suspended to the extent of conflict. Statutes which "prohibited" the receipt of compensatclry per diem were not suspended. To the extent that Attorney General Opinion MU-388 could be read to require that all board and commission members should receive the compensation provided for in subsection (1) of article V, section 4. of the General Appropriations Act, it was expressly clarified and limited by Attorney General Opinion 311-382. The result of Attorney General Opinion MW-388 was not reversed. p. 1954 Mr. Roger D. Shipman - Page 5 (m-426) YOU ask about a prov!.s!ionsimilar to that considered in Attorcey General Opinion MU-388; me which appears to both "prescribe" and "prohibit" the receipt o:i per diem. As indicated, article 7465a, section 5(h) of the Veterinary Licensing Act provides: Each Board member is entitled to a per diem as set by leglslatiw appropriation for each day that the member engages in the business of the Board. A member may not receive any compensation for travel expenses, including expenses for meals and lodging, other than transportation expenses. A member is entitle'dto compensation for transporta- tion expenses 218 prescribed by the General Appropriations Act. The section begins and eni,sby prescribing that the amount of a board member's per diem is that fixed by the General Appropriations Act. But the provision prohibits the receipt of a component of per diem for actual sxpenses. This provision differs from that at issue in Attorney General Opinion JM-349. We believe that, overall, section 5(h) of the Veterinary LL:tcnsingAct is a provision which prescribes the amount of per diem tlo which a board or commission member is entitled. Consequently, it is superseded by article 6813f in conjunc- tion with the current Genet,s&Appropriations Act. It has bem suggested 'thatour conclusion with regard to question 4 in Attorney Geaeral OpinjionJM-382 also has a bearing on the issue at hand. As stated in Attorney General Opinion JM-382: Your fourth question concerns the effect of article 6813f or! a statute enacted subsequent to article 6813f. As indicated at the beginning of this opinion, a rider to a general appropriations bill cannot amend. modify, or repeal general law. Accordingly, the basic preemptive effect of article 6813f must depend primarily upon when it was enacted. As a general rule, when two statutes deal with the s,ame subject, the most recently enacted statute ,!:cevails.Consequently, a statute which is passed subsequent to article 6813f and which concerns t'reamount of per diem a particular board's members are entitled 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 '[a]~ authorized by Section 2 of article 68H:i.' it does not apply to per diem established by o,therstatutes, i.e., those enacted after article 6813f. The statute for the p. 1955 I Mr. Roger D. Shipman - Page:6 (.JM-426) particular board and the board's appropriation would control. Section 5(h) of the Vettninary Licensing Act and article 6813f. V.T.C.S., as originally emcted, were both enacted during the same legislative session. Arguably, if section 5(h) was passed after article 6813f, it would ml: be preempted by article 6813f. - The session laws, howover. reveal that in this case this is not a problem. Article 6813f pa:z.ed by the legislature on May 31, 1981 while section 5(h) was pmsed by the legislatur'eon May 27, 1981. Moreover, section 2 of article 6813f was amended in 1983, thereby providing a more recent expression of the legislature's intent that it preempts ~conflictingprovisions which prescribe the amount of per diem due to state board and comnission members. -See Acts 1983, 68th Leg., ch. 761, at 4571. SUMMARY Members of the Texas Board of Veterinary Medical Examiners are entitled to reimbursement for expenses pursuant to article 6813f, V.T.C.S., in conjunction vtth section 4 of article V of the current General Appropriations tact. JIM MATTOX Attorney General of Texas JACX HIGHTOWER First Assistant Attorney Goneral MARY KELLER Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney (kaneral RICK GILPIN Chairman, Opinion Committee Prepared by Jennifer Riggs Assistant Attorney General p. 1956