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THEATT~ICNEY GENERAL
OFTEXAS
Hon. WI W. Glass, Chaillnan OpinionNO. ~-563
contingentExpenseColmllittee
House of Representa~ivss Re: Conetitutionality of House
Awtin, Texas Bill Iio.89, 56th Leg.,re-
latingto the paymentof
Legislativeexpensesdue to
officialtelephonecalls
made during the interimby
Dear Mr; Glass: members of the Legislature.
Yo-,Jhave requestedan opinionon the constitutionalityof House
fill 85;of the 56th Legislature,
which reads in part as follows:
"Sec,tlonI. The followingwords, texms or phrases
when need in t&ix Act have the meaningsascribedto them
12 this ee;tion.
"(a) 'Legislative expense'means that expense in-
sident y;oi&e workingsof the Legislatureas an actual
law-makingbody, as a whole, as the Legislatureitself,
when in session;througha specialcommitteedelegated
by k&e Legislaturewhile in se&ion to work on a legis-
Iatlvem&tes betweensessions;throughpersonnelem-
plop3 to closema,ttern after adJournmentjthroughem-
p;opeasmaintainedbetweensessionsfor the care of the
legislativehallisor for maintenanceof a centraloffioe
or -,l"earirAg
home ifor legislativematters betweensessions;
31"-31-w;@&s elect:vemembers acting,during the Interim,
in their offiial zapacityaa Members of the Legislature
in the perfoxmsnceof dutiesnecessaryto the proper con-
diet cf +2x businessof the Legislature.
"tb) 'Officialtelephonecalls'means all tele-
phone cells made by &mbers of the Legislaturepertaining
to state affairswith which the Legislatureis or may be
C0~,$CTE33..
“Sec. 2. The Committeeon ContingeM Expensesof
each,House of tie Legislatureshall appropriatefrom
its CcntingentExpenseFund whateversums shall be con-
sidere?. necessaryby the Committeeto pay officialtele-
phone calls during Interimperiodsand such calls shall be
consideredIwgislativeexpensesas definedherein, Said
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Hon. W. W. Glass, page 2 (~~-563)
Committeesmay set reasonablelimitson such legis-
lativeexpense."
Section 24, Article III, Constitutionof Texas, providesaa fol-
lows:
"Membersof the Legialature‘shallreceivefrom the
public Treasurya per diem of not exceedingTwenty-five
($25.00)Dollarspar day for the first I.20days only of
each cessionof the legislature.
"In additionto the per diem the members of each House
shall be entitledto mileage in going to and returningfrom
the seat of government,which mileage shall not exceed$2.50
for every 25 miles, the distanceto be computedby the
nearestand moat directroute of travel,from a table of
distancespreparedby the Comptroller,to each county seat
now or hereafterto be established; no member to be entitled
to mileagefor any extra session thatmay be calledwithin
one day after the adjournmentof a regularor called session."
The SupremeCourt of Texas In Spears v. Sheppard,136 Tex. 277,
150 s.w.2d 769 (l94l),in construingthe provisionsof Section24 of
ArticleIII of the Constitutionof Texas,held:
I . " * Moreover,the compensationprovidedfor in this
Articleof the ConstitutionCoversand includesall services
thatmay be requiredof the member duringhis entire term of
office, includingthe time servedby him on committeesbe-
tween sessionsof the Legislature. . . ."
LikewIse,it ie stated in h'alkerv. Baker, 145 Tex. 121, 196 S.W.
2d 324 (1946):
”
* Thie per diem multipliedby the number of days
0 0
the Legislatureremains in regularor called seaeion,is the
entire compensationa member is entitledto receive,and for
ithe must attend the legislativesessionsand performall
the other duties of his office each bienniun. . . ."
AttorneyGenerals'OpinionsWW-148 (1957),WU-131 (1957),and
O-3778 (1941)concludethat expensesincurreda8 a result of the actlvi-
ties of the Legislaturemay properlybe dividedInto two categories
which are "legislative"and "personal." The Legislatureis authorized
to providefor the paymentof "legislative" expense,but cannotauthorize
the paymentof "personal"expenseby the uae of publicmoneys. The dlffer-
ence between legislativeand personalexpensehas been definedas follows:
"It is believedthat the matter of Legislativeand
personalexpensemay be reationallzed as follows. Legis-
lativeexpense is that incidentto the workingsof the
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Hon. W. W. Glase, page 3 (~~-563)
Legislatureas an actual law-makingbody, as a whole,
as the Legislatureitself,when in session;througha
specialcommitteedelegatedby the Legislaturewhile in
sessionto work on a legislative matter betweensessions;
throughpersonnelemployedto closematters after
adjournment;or throughemployee6maintainedbetween
sessionsfor the care of the legislativehalls or for
maintenanceof a centralofficeor clearinghouse for
legislative matters betweensessions. These expenses
are for the mutual benefitof all members--forthe Legls-
lature itself.
"Personalexpense,on the other hand, is that in-
curred,or which may be incurred,by a Member between
sessionsworkingunder his own will, in his own dis-
cretionand as a matter of individualenterprise--notas
a part of the Legislaturein sessionor under extraordi-
nary assignmentfrom the body betweensessions." Attorney
Generals'OpinionsWW-148,WW-131, and o-3778.
In House Bill 89 submittedwith your request,the term “legis-
lativeexpense"has been defined,and that definitionincludesexpenses
"throughthe electivemembers'acting,during the interim,in their
officialcapacityas members of the Legislaturein the performanceof
dutiesnecessaryto the proper conductof the businessof the Legls-
lature." This definitionof the legislativeexpensewould not only
authorizea member of the Legislatureto be paid expensesincurredas :
a resultof extraordinary assignmentfrom the Legislaturebetween
sessions,but would also authorizepaymentof expenseswhich may'be
incurredby the member workingunder his own will in his own discretion,~
and not pursuantto any particularassigomentof the Legislaimre. To
this extent it would authorizethe paymentof personalexpensesand
would therebyconstitutean increasein the compensationof the member
of the Legislaturein excess of that permittedin Section24 of Article
III of the Constitutionof Texas. It is thereforeour opinionthat
House Bill 89, as written,au.thorizesthe expenditureof publicmoneys
in excessof the amount limitedby Section24 of ArticleIII of the
Constitutionof Texas and is thereforeunconstitutional.
SUMMARY
Insofaras House Bill 89 authorizesthe paymentof
expensesincidentto the workingsof the Legislatureand
throughspecialcommitteesdelegatedby the Legislature
and throughpersonnelemployedto closematters after
adjournmentand throughemployeesmaintainedbetweenaes-
aions for the care of the legislativehalls or for main-
tenanceof a centraloffice or clearinghouse for legis-
lativematters betweensessionsand the paymentof
eon. W. w. Glass, pge 4 (w-563)
telephozieexp&nsesincidetit thereto 'HouseSill'89
is oonstitu~ional; that portionOf House siu8g'
which &uthorizesthe paymentof expeneeawhich may
be itiourredby a msmber~betweehsessionsworking,
not as a pert of the Legislaturein eessiotior
under an aesigtmentPram the Legislaturebetween
eeeaione,is in violationof Section24, Article III,
Constitutionof Texas.
Yours very truly,
WIU WIISON
AttorneyGeneralof Texas
AFPRovND:
OPImIOIJ
COMuITTgE
Gee. P. Blackbnm, Chainnan
J. Milton Richarason
L. P. Iollar
LeonardPassmore
Wm. It.Hemphill
George C. Reed
REVlEUEDFORlSEATTORSYGENE%L
BY: W. V. Geppert