Untitled Texas Attorney General Opinion

T~~EATS'ORNEY GENERAL OF-XAS Auwrxiu~~.TBZ!LAS ‘PRICEDANIEL ATTORNEY GENERAL May 21, 1948 Han, V, C, Marshall Executive Director State Soil ConservationBoard Temple, Texas Opinion No. V-584 Re: Applicabilityof sub- section llg, Section 2, Appropriationbill for current biennium, to members of the State Soil Conserva- tion Board. Dear Sir: Reference is made to your letter of recent date, from which we quote as follows: "Since Members of the State Soil Conserva- tion Board first took their oaths of office in 1939, they have been reimbursed for meals and lodging as State Employees, being lim- ited at the present time to Four ($4.00) Dollars a day for meals and lodging, *We should appreciatehaving the opinion of your Department regarding: Appropriations- State Department and Agencies General.Pro- visions, Section 2 Paragraph il-g; General. and Special Laws - Texas, 50th Legislature, Regular Session, 1947a And, Section 4;D, paragraph 2, Texas State Soil Conservation Law, Acts of the 47th Legislature,Regular Session, 1941e wAppropriations,State Department and Agen- cies, General Provisions Section 2, para- graph U-g, General and gpecial Laws - Texas, 50th Legislature:-- '* * * Provided how- that the meals and lodging limitation yz;Lked 6y this Section (11-g only) shall not apply to any elected State Official when traveling in er out of State," Hon. V. C. Marshall,- Page 2 (V-584) " ',, wSection 4-D, paragraph 2, Texas State Soil ConservationLaw Acts ofl;,"f: 47th Legislature,Regular &esslon f ,* * but each member shall ce entitled to expenses, including traveling expenses, necessarily incurred In the discharge af their duties as members ef,the Board..' We should like the opinion of your De- partment on the following question: Are members of the State Soil Coneervatien Board entitled to be reimbursed In the amount of expenses actually lncurred'for meals and lodging?" The State Soil ConservationLaw was first en- ." acted in 1939 (Acts 46th Leg., p. 71, reenacted and amended in 1941 (Acts 47th Leg;,,p.'491) and Is now known as Article 165a-4, Vernon's Civil &atutes. Set- 1 tlon l+A thereof in part, reads: "There is hereby establishedt@ serve as an agency of the State and to perform the functions conferred on it in this Act, the State Soil ConservationBoard. The Board will consist of five (5) members. The following shall serve in an advisory capacity to the Board: The President of the Agriculturaland Mechanical College of Texas, the President of Texas Technole i- cal College,,the Director of Vecationae Agriculture of Texas, the State Ceminisslener of Agricultureand th.eState Coordinateref the Soil ConservationService of the'llnited States Department of A riculture. The five A;le;;z;t:;ef;;T;gs of theBoard shall be : The State of Texas Is hereby~dlvldedinto five (5) State Districts for the purpose of selecting five (5) men- bers of the State Soil ConservationBoard." (Emphasisadded throughout this opinion).' The remainder of this section names the coun- ties comprisingeach of the five districts. Sections 4B an,d4C prescribe the procedure to be followed in selectingmembers of the Board, ene frex each district. The provisions of Section 4B are substan- tially as foll0wS: Hen, V. D, krshall - Page 3 (V-5841 Whenever a member of the Board is to be se- lected, the Board notifies the County Judge of each County in a "State District* wherein a "District Con- servation Convention"is to be held. Upon receipt of such notice, each County Judge is required within twenty days to appoint a "County Soil ConservationCommittee" ,of four members, one.from each Commissioners'precinct, each of whom must be a landowner and actually engaged in the business of farming or animal husbandry. The persons so appointed are within five days notified by the County Judge of their appointment. The members of the Committee so selected meet, organize, and select one of its members as chairman. Section 4C reads: "The County Soil ConservationCommittee in each county shall elect one of its men- bers as a'delegate to attend the State Dls- trict 'ConservationConvention.The name and address of the delegate to the District Con- vention shall be certifiedto the State Soil ConservationBoard by the Chairman of the County Soil ConservationCommittee not less than twenty (20),daysprior to the date of the convention. Each State District Con- servation Conventionshall elect from among the qual.ifleddelegates present, by a major- ity vote, a member of the State Soil Conser- vation Board. The Chairman of the District Convention shall within five (5) days, cer- tify to the Stats Soil ConservationBoard, and the Secretary of State the name and ad- dress of the person elected, A majority of all qualified delegates elected to the State District Convention shall,constitutea quo- rum0 Each member of the State Soil Conser- vation Board shall be a qualified delegate to the State District Conventionwhich elects his successor. "Board members for Districts 2 and 4' elected in 1941 under the provisions of House Bill No, 201 Acts, Forty-sixth Leg- islature, Regular Session shall serve for the term for which they were elected, and until their successorsare elected and have qualified, On the first Tuesday in May, 1943, at a place within the district to be Hon. V. C. Narshall - Page 4 (V-584) designated by the State 3011 ConsWva- tion Board, State District 2 ohall elect a board member as hereinaboveprovided, to serve on the State Soil Conservation Board for a period of five (5) years, and State District 4 shall elect a board mem- ber as hereinabove provided to serve on the.State Soil ConservationBoard fera period of four (4) years. Thereafter, board members elected from State Diatrlcts 2 and 4 shall be elected for a period of five (5) years or until their successors are elected and have qualified. nBoard members for districts 1, 3, and 5, elected under the provisions of House Bill No. '20,Acts, Forty-sixthLeg- islature Regular Session, &a&l hold'thelr of~fices,korthe terms for which they were exected, and until their successorsare el,ectedand have qualified. On the first Tuesday In May, 1942, at a place within the district to be designated by the State Soil ConservationBoard, State District 1 shall elect a board member as hereinabove provided to serve on the State Soil Con- servation Board for a period of two (2) years, and State District 3 shall elect a ,boardmember as hereinaboveprovided te 'serveon the State Soil ConservationBoard for a period of three (3) years, and State District 5 shall elect a board member as hereinaboveprovided to serve on the State Soil ConservationBoard fora period of four (4) years. Thereafter,board members elected from State Districts 1, 3, and 5 shall be elected for a period of five (5) years or until their successorsare elected and,have qualified. "Terms of office of all State Board Members shall begin on the day following their election," Section 4D reads: "Each member of the State Soil Con- servation Board shall take-the State Con- stitutionaloath of office, and said State Hon. V. C, karshall - Page 5 (V-5841 Soil ConservationBoard shall designate one of its elective members to serve as Chairman, "Vacanciesupon such Board shall be filled for an unexpired term or for a full tern, by the same manner in which the re- tiring members were respectivelyelected. Elective members of the Board may receive compensationfor their services on the Board not to exceed the sum of Ten Dol- lars !$lO) per diem for each day of actual service rendered, but each member shall be entitled to expenses, including traveling, necessarily incurred in the discharge of his duties'as a member of the Board," The Fiftieth Legislaturemade an appropriation to'the State Soil ConservationBoard of $1800 for each year of the current biennium for "Travel Expense, Five Board Members." Act 1947, Item 11, p0 924. Subsection llg of the rider to the appropria- tion bill for State Departments and Agencies for the current biennium reads: "All employees traveling at the ex- pense of the State are hereb limited to the amount of Three Dollars 7$3.00) per day for meals and a total of Five Dollars ($5.00) per day for meals and lodging, it being specificallyprovided that the em- ployees shall obtain receipts for all items of expense claimed except meals and shall file such receipts with their duly item- ized and sworn expense accounts; provided, however, that the meals and lodging limita- tions imposed by this Subsection (llg only) shall not apply to any elected State offi- cial nor to any appointed State official wnose appointment is subject to Senate confirmation,when traveling in or out of the State; nor to any assistant Attorney General or representativeof the State Health bfficer, or representativeof the Adjutant General, or representativeof the State Highway Commission,or representa- tive of the Railroad Commission,when any of these classes of State employees are Hon. V. C, IUrshall - Page 6 (V-584 1. appearing,beforeor CeAsuI,tiIXgwith, on State business, any Federal Agencies in Washington, D. C." In Opinion No. O-6615, dated July 13; 194 former Attorney tieneraladvised the Comptrollerof 8ub-a lit Accounts that since Section 4D of Article 165a-4 provided each member of the State Soil Conservation Board "shall be entitled to expenses, including travel- ing, necessarily incurred in the discharge of hia duties as a member.of the'Board", the~Le islature was net pre- hibited by Section 44, Article.IIf of the Constitution from making an appropriationto pa; the claim of a me=-. ber of the Board for expenses so incurred by him in ,e%- cess of the amount appropriatedto the Board for that purpose. We believe the term "State officLalw, as that. term is used in Subsectionllg, means the same thing as State officer, or includes such sfficers, ,Inthe case of Collins V~ State 161 S. W. 115, our Court of Crimi- " nal Appeals said: $n a popular sense a State officer is one whose jurisdictionis coexttnoivewith the State." The statute creating the State Soil ConservationBoard . prescribes its powers and duties which are coextensive with the State, Its members are sptciflcallyrequired to take the constitutionaloath of office, and their tenure of office is fixed, Consideringthe etatute in its entirety and.the public purpeste for which the Beard was created, we think the members of the Board are un- doubtedly "State officials" or State lffiotrs within the purview of,subsectionllg, It is our opinion that the term "elected State official",as used in subsectionllg, meana a State of- ficial elected by the qualifiedvoters of the State, the ordinarilyaccepted definition of that term. It is also our opinion that the manner prescribed,bythe statute for selectingmembers of the Board, whether for a full term or to fill a vacancy on the Board, ,mustbe construed as an appointment of such officers. Section 12, Article IV, of the Constitutien provides that all vacancies in State officest except members of the Legislature,shall be filled unless otherwise provided by law," by appointment of the Gov- ernor, which appointmentshall be sub tct to Senate con- firmatien* The statute creating the !!tate Soil Constr- vation Board fully prescrfbtsthe precedure to be fol- Hon. V, C. Marshall - Page 7 (V-584) lowed in appointingmembers of the Board and a vacancy on the Board is filled in the same manner in which the retiring member was appointed. In view of the foregoing conclusions,it nec- essarily follows that members of the Board do not cone within the exceptions found in subsection llg pertaining to an "elected State official" or an "appointedState of- ficial whose appointmentis ,subjectto Senate confirma- tion." We have carefully examined all department ap- propriationbills enacted by the Legislaturesince 1901 and havesfound that the Forty-thirdLegislaturewas the first Legislatureto attach riders to such bills putting a per diem limitation for meals and lodging on State em- ployees or State officers. (Acts 1933, p0 511). The pertinent partof these riders read: "All employees covered 'uncerthis bill who are traveling at the expense of the State are hereby limited to the followingamounts for meals-and lodging: for meals not txcttd- ing One Dollar and Sixty Cents ($1.60) per day, for lodging not exceeding Two Dollars (#2.00) per night 0 0 . provided the provi- sions of this Act shall not apply to members of Boards and Commissionerswho do not re- ceive an annual or monthly salary, nor to the Executive Board or the heads of State Depart- ments. "It is expressly provided that the pro- visions of this Act with reference to travel- ing expenses shall not apply to the Governor and Lieutenant GovernorQR Bimilar riders have been attached to such ap- propriationbills enacted since 1933. The State offi- cers specificallyexempted from the meals and lodging limitationshave not always been the same, but the,word "employees" has invariablyappeare~din the rider,con- taining such limitations. In the appropriationbills of 1939 through 1945 the officers exempted from the meals and lodging limitationsare identified in s'tpa- rate riders, The pertinent part of subsection2e and all of subsection 2g.of the appropriationbill of 1939 (Acts Han, V, C. Marshall - Page 8 (V-584) 46th Leg., Spl. Laws, p. 226) respectivelyread: Subsection 2e. "All employeestraveling at the tx- ptnst of the State art htrtby limited tt the amount tf $4. per day,expenses ftr meals and ltdging;." Subsection2g0 "It is expressly provided that the pre- visions of this Act, with reference tt trav- eling expenses, shall not apply to the Gtv- trnor and Lieutenant Governor of this State." This effict had tccasien te construe the provi- sitns tf these two subsectionsin Opinier Nt. o-1634, dattd November 1, 1939, from which opinion, wt quete: "The specific rxtm titn lf these twt officials of our State k+vtrnment indicates clearly that it was the legislativebelief that, unless such specific extmptiea was made, the Governtr,andLieutenantGevtrner in incurring traveling expenses weuld be limited by the provisions of the rider rcl- ative thereto." The general meals and lodging limitatitn pro- vision of the AppropriationBill of 1939 (subsection2e) was brought forward without change in the Appropriation Bill of 1941 as subsection 12g and subsection2g was brtu ht forward as subsection13f. (Acts 47th Leg*, p. 12917, Subsection 13f reads: "It is expressly provided that the pro- ~visionsof Subsection 12g tf this Act'tith reference to limitationof ameunt of travtl- ing expense shall not apply to the Governor, the Lieutenant Governor, and the members of Commissionswht rtctivt no salary or ptrNiem, when traveling in or out of the State. shall said prtvision apply to,tht Adjutant General and his representativeswhen apptar- ing in Washington,Do C,, btferc the War Dt- partrent, the Attorney General and his as- sistants when appearing btftrt the Supreme Court of the United States and Federal Agencits . . . Hon. V, C. Marshall - Page 9 (V-584) in Washington D. C., nor the members of the Railroad kommissionwhen appearing be- fore the Interstate Commerce Commission or other Federal Commissionsin Washington, D, C." Subsections12g and 13f were construed in At- torney General's Opinion No. O-3996, dated September 30, 1941, wherein it is said: "We believe that 'State em loyets" as used in the appropriationbill Psubsection 12g) covers all officers, representatives, and agents of the State. If this were not clearly the legislative intent, then the in- clusion of subsection13f in the bill would be a foolish act." The records of the Comptroller'sOffice reveal that from September 1, 1933, the effective date of the appropriationbill of 1933, down to the present time, the constructionplaced on the riders considered in the two foregoing opinions is the same as has been given by that department to all such riders attached to the rc- spective departmentalappropriationbills. We think it is apparent that each successive Legislature since 1933 was aware of the departmental constructiongiven to the meals and lodging limitations imposed by the rider attached to the departmentalappro- priation bill of 1933, and approved it, for a rider of the s&me general character has been attached to all such appropriationbills enacted since that time, and each of such bills has contained a provision exempting cer- tain State officers from such limitations. In view of the foregoing it is our considered opinion that it was the purpose and intent of the Legis- lature in enacting Subsectionllg that the limitation imposed therein upon daily expendituresfor meals and meals and lodging should apply to all State officers ex- cept those therein specificallyexempted therefrom, of the State Soil ConservationBoard are not so Nilembers exempted. It is our further opinion that a member of the Board may legally ex end,more than $3000 per day for meals and more than i5.00 per day for meals and lodging, if such expendituresbe necessary in the per- formance of his duties, but he cannot be reimbursed . . . . Han, V. C, Fiarshall- Page 10 (V-w+) for such excess so incurred from the current appropria- tion made to the Board for payment of traveling expenses. He may, however, present his claim for the ameunt of such excess so paid to the Legislaturefor approval and payment and the Legislaturemay legally make an appro- priation to pay the same, because the statute provides that such members shall be entitled to their traveling expenses incurred in the discharge of their official duties. SUMMARY A member of the State Soil Conser- vation Board is subject to tht meals and lodging limitationsimposed by Subsection llg of the rider to the currrtBdeT;ft- mental appropriationbill. Acts 50th Leg,, Article 165a-4, V. C.'S.; Set, 12, Art. IV, State Constitution. Very truly yours, ATTORNEY GENERAL OF TEXAS ByLMw Bruce W, Bryant Assistant BWB:wb:erc