Untitled Texas Attorney General Opinion

Arrs~xiw ,&TEXAS October 6, 1965 Honorable Robert S. Calvert Opinion No. C-522 Comptroller of Public Accounts Austin, Texas Re: Whether a rooming house qualifies as a commercial lodging establishment as that term is used in Section 15 of Article V of the General Appropriation Act of 1965 and related ques- Dear Mr. Calvert: tions. Your request for an opinion on the above subject matter asks the following questions, in view of the provisions of para- graph (a) of Section 15 of the General Appropriation Act of the 59th Legislature: "1. Does a rooming house qualify as a commercial establishment? "2. Does an apartment qualify as a com- mercial establishment? "3. If you hold that the renting of an apartment follows within the definition of 'commercial lodging', what would two or more ... State employees renting and living in the same apartment be entitled to for reimbursement on a per diem basis? "4. At what rate of per diem would an em- ployee.'beentitled to who secures lodging at YMCA, YWCA, and membership clubs? "5. Would a statement or billing received as a result of the use of a credit card from a company other than a commercial hotel, motel, or other coannerciallodging establishment, entitle the employee to qualify under the $12.00 per day per diem rate?" -2457- -. . Hon..Robert S. Cslvert, page,2 (Ce522 1 .,. ,,This office in Opinion,~NoVo. C-472 defined .a,"comer&aP .~ ; ~eatabliahxaantt' aa~followa: : "In i&w of ~the foq*goiig,, .it iS ciar op+lon that thb phrase ‘comnerciai .h'otelr mot,el,or other cokaarcial lodging eatabliahment,~ refers to.thoae' puqtia, firm,' corporations;,aaaocfati~ona or ., -'eatabliahmatitar engagsd in the buaineaa of furnish- inglodging to the public gazketallyfor pay, '* D .'I : .~,' ~, ,' ~A8 p&nted'.out in .theabo+o$inion, UArtlcle 4596, Raviaod~.Civil~Statutea.of Texaa, 1925,.deftneaa hotel or inn as *&place'whereItha,buaineaeis.,@ furnish f&d and lodgin4 or of&d; to 'allwho,kp~l~ and.wy theragor.“’ (EnWaai? added.) ,100l.uch, ra8trlction.I8placed on the.tem Wnmercia1 lodging aatabli9hmaRt"; The only roQaireuunti ,of the latter are that > tli~.~mfurriiali lodg,ingto,the.vublicasnerallv for MY 0I4 '.(Nmphaaiaadded,) ",Applyingthe,above.definitfonto questions 1, 2,.and 4, rooming houaea,'apartmanta,and YMCAla~and YWCA's fail within tha .definitionof "cokercial loQq.ing~establishment". Conae- .q~~tlf,c~any State employae who mat remain out of town in order ~to~perfbrm his,duties for either a .dayor,aeveralmonths and .,+18&a .to. stay at one ,ofthe above,:18entltled'to~ twelve dollars (S&2) pur ‘diem. .Quaationnumber 4 doaa',notreveal the typa membership .. cl&~ to'which you ark referring. '.Ifmeaberahip~is~bothlimited and la d pre~aquiaitefor.using tha facilitiea,ofthe club, its is ,not’ R,,Comaaklaleatabliahmnt~open to the.Q&UC even though it my 'requireiemReration.frm, tha individualmember who stays overnight.''For example, a 'socialfraternitywould be a amber- tih,ip .clubwhich w.ould.furniah -lodging, to its itinerant'mcmbera for pay'buttiould'notbe a coma~oiel establishmentyithin the ~.above hef inition. .~ :. '. .In a&wer.to queatiofinun&et 3,~paragraph (e) of ..'...'&ioR~ i5 of.~Aiticle,'Vof~the general Appropriatfou~,Act of the 59th LugUlatutr. ptoyldea: ., .‘~~, 'IRateabf ,allcwance.:Nach employee traveling .o@ #t$te buainaaa.inside the bouudRri& of me Hon. Robert S. Calvert, page 3 (C-522 ) State of Texas shall be allowed, in ,lieu of actual expenses incurred for meals and lodging, a flat per diem rate not to exceed twe~&vedollars ($12) provided there is attached to his expense account when submitted a 'Paid' bill or receipt from a commercial hotel, motel, or other commercial lodging establishment for his lodging, but pro- vided further that if such receipt is not sub- mitted, the flat per diem rate shall not exceed seven dollars ($7)." Section 15 of Article V places no limitation on the actual cost of lodging: it merely requires that the State em- ployee has paid for his lodging and such payment is evidenced by a "Paid" bill or receipt from a commercial hotel, motel, or other commercial lodging establishment in order to qualify for the twelve dollar ($12) per diem rate. When two or more State employees are renting and living in the same apartment, each employee's expense for lodging is that portion which he pays of the total bill. Upon the submission by the State employee of a "Paid" bill or receipt, or copy thereof, indicating that the employee was one of the tenants, he will qualify for the twelve dollar ($12) per diem rate for the days covered by the receipt. Article 155533,Vernon's Texas Penal Code, defines credit card as follows: "Sec. 3. The term 'credit card' as used herein means an identification card, plate, coupon, book, device or number issued to a per- son, association of persons, or corporation by a person,or business organization which permits such person, associations of persona, or cor- porations to attempt to obtain, or obtain, or pay for items of value or services of any type, ir- respective of whether such items of value or services can be obtained or paid for bv a credit card issued by the person or business organization offering the items of value or services or by another person or entity engaged in providing credit facilities for said person or business organization." (Emphasis added.) -2459- Ron. Robert S. Calvert, page 4 (C-522 ) The credit card represents a contract between the credit card holder and the issuer of the card. Once the credit card holder has used the card, he becomes liable to the issuing company. Texaco, Inc. v. Goldstein, 229 N.Y.S.2d 51, 34 Misc.26 751 (Municipal Court of New York, 1962). Similarly, the issuing company becomes liable to the ,partywho accepted the card. As between the credit card holder and the party accepting the cre- dit card, the holder is relieved Of further liability and for purposes of Bection 15 of Article V the accepting party has been "paid" thus qualifying the Gtate employee for the twelve dollar ($12) per diem rate upon the presentation of the statement or billing received from the company issuing the credit card. SUMMARY Apartments, boarding houses, YWCA's, and YEA"8 are commercial establishments and State employees are entitled to the twelve dollar ($12) per diem rate upon presentation of a "Paid" bill or receipt from one of the above. A membership club, that is limited as to its membership, and membership is a prerequisite for using the facili- -,.ties of the club, is not a "commercial lodging establishment" as that term is used in Section 15 of Article V. TWO or more State employees may occupy the same apartment and qualify for the twelve dollar ($12) per diem rate upon the presentation of a "Paid" bill or receipt, or copy thereof, which indicates that they were tenants. A statement or billing received as a re- sult of the use of a credit card from a company other than a commercial hotel, motel, or other commercial lodging establishment entitles the employee to qualify under the twelve dollar ($12) per diem rate for the days covered by the bill or statement. -24&J- t I-Ion, Rbbert S. Calvert, page 5 (C-522 ) Very truly yours, WAGGONER CARR Attorney General Wade Anderson Assistant WA:ra APPROVED: OPINION COMMITTEE W. v. Geppert, Chairman Malcolm Quick Dougless Chilton Linward Shivers APPROVED FOR THE ATTORNBY GENERAL By: T. B, Wright