Untitled Texas Attorney General Opinion

- - 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 - - 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 r - 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