May 16. 1974
The Honorable Joe Allen, Chairman Opinion NO. H- 307
Committee on House Administration
House of Representatives Re: Whether and under what
Aus tin, Texas circumstances a member of
the Legislature is entitled to
receive mileage or per diem
for days snot in attendance at
Dear Representative Allen: the Legislature
As Chairman of the House of Representatives Committee on House
Administration you have asked our opinion on Article 3, 5 24 of the Con-
stitu’tion which provides:
“Sec. 24. Members of the Legislature shall
receive from the Public Treasury an annual salary
of not exceeding Four Thousand, Eight Hundred
Dollars ($4,800) per year and a per diem of not
exceeding Twelve Dollars ($12) per day for the first
one hundred and twenty (120) days only of each Regular
Session and for thirty (30) days of each Special Session
of the Legislature. No Regular Session shall be of
longer duration than one hundred and forty (140) days.
“In addition to the per diem the Members of each
House shall be entitled to mileage in going to and re-
turning from the seat of government, which mileage shall
not exceed Two Dollars and Fifty Cents ($2.50) for every
twenty-five (25) miles, the distance to be computed by
the nearest and most direct route of travel, from a table
of distances prepared by the Comptroller to each county
seat now or hereafter to be established: no Member to
be entitled to mileage for any extra Session that may be
called within one (1) day after the adjournment of the Regu-
lar or Called Session. ”
p. 1421
The Honorable Joe Allen, page 2 (H-307)
Your first two questions are:
“1. If a Member does not travel from his
district to the seat of government in order to attend
a Regular or Special Session, should that Member
be paid for mileage as set forth in Article 3, Section
24, Constitution of Texas?
“2. If a Member fails to attend or is absent
for a full legislative day, during any Regular or
Special Session, should that Member be paid the
$12.00 per diem a,8 set forth in Article 3, Section
24; Constitution of Texas? ”
The .Constitution of the Republic of Texas and the first four consti-
hitions of the State provided that the compensation of legislators would be
set by law with the proviso that new rates would not be effective until the
session following the one at which they were approved. However, the 1876
Constitbtion limited legislative compensation to not more than five dollars
per day for the first sixty days of any session and not more than two dol-
lars per day for the remainder of the session. In 1930 the Constitution
increased the per diem to ten dollars per day for the first 120 days of a
session and five dollars per day for the remainder of ~the session. In 1954
it wasamended to provide for twenty-five dollars per day for the first 120
days only of each session. The current language was approved by the voters
in 1960.
Per diem can have more than one meaning. It may be used to signify
a fixed sum paid as compensation or salary. Terre11 v. King, 14 S. W. 2d
786 (Tex. 1929). In other contexts “per diem” may refe~r to a fixed amount
allowed to compensate for incurred expenses. See, for instance, the Travel
Regulations Act of 1959. Article 6823a. V. T. C. S., which in its 0 3a, defines
a per diem allowance as “a flat daily rate payment in lieu of actual expenses
incurred. .~ . .‘I We find it unnecessary, in this case, to decide whether the
$12 per diem currently paid legislators is paid as salary or as reimbursement
of .expenses.
p. 1422
The Honorable Joe Allen, page 3 (H-307)
The very question you have asked was before the Supreme Court
in Spears v. Sheppard, 150 S. W. 2d 769 (Tex. 1941), although the consti-
tutional prbvision then was different. In passing upon whether a member
of the National Guard was entitled to his per diem as a member of the
Legislature, the Court said:
II . . . This provisionof the Constitution [Art. 3,
Sec. 241 . . . does not make the right to such per
diem dependent upon actual,attendance on the sessions
of the Legislature. All that is required is that the
Legislature be in session and that the claimant be a
member thereof. . . . !’ (150 S. W. 2d at 770)
And see, Attorney General Opinion V-788 (1949).
We.are.aware that thgr,e is .language in Walker v. Baker, 196 S. W.2d
324 (Tex. 1946) which might be read to support a contrary conclusion. HOW-
ever, the statement is dictum, wholly unnece6sar.y to the opinion, and,
therefore, would be of insufficient weight to overcome the clear holding of
Spears, even if assumed to be contrary.
While no court has construed the portion of 5 24, Article 3. relating
to mileage, the office of the Comptroller of Public Accounts advises us
that, administratively, the mileage is paid only once during each session
of the .Legislature. This administrative construction is entitled to weight.
Calvert v. Kadane, 427 S. W. 2d 605 (Tex. 1968). The provisions of § 24
that a legislator is not entitled to additional mileage for an extra session,
if called within one day after adjournment of a preceding session, is an in-
dication that’it wasintended that only mileage actually incurred be reim-
bursed. ‘*Additionally;-,the great disparity in the distance to be traveled would
strongly suggest that the mileage was intended as reimbursement of incurred
expenses and not as.additionol compensation.
We are of the opinion, therefore, that mileage, unlike per diem, is to
be paid only if a legislator actually travels to the seat of government to attend
a session of the Legislature.
p. 1423
The Honorable Joe Allen, page 4 (H-307)
We therefore answer your questions that a member of the Legislature
is not entitled to the mileage set forth in Article 3. $ 24, of the Constitution
of Texas if he does not travel to the seat of government to attend a session
of the Legislature. He is entitled to his per dijem even though he fails to
attend a -session or may be absent for a full legislative day.
Your third question asks:
“If your answer to either number I or 2 is no,
are there any special circumstances, such as illness,
death in the family, inclement weather or other special
circumstance which would constitute a valid excuse for
such absence and therefore entitle such Member to
payment for either the per diem, mileage, or both?”
It is unnecessary to answer as to per diem. Since it is our interpre-
tation that mileage is payable only for reimbursement for actual expenses
incurred, there are no circumstances under which the mileage would be
paid without having been incurred.
SUMMARY
The mileage called for by Article 3. 5 24, Con-
stitution of Texas, for members of the Legislature is
dependent upon actual travel. The per diem on the other
hand is not dependent upon attendance at any session of
the Legislature.
Attorney General of Texas
Asbietant
DAVID M. KENDALL. Chairman
Opinion Committee
p. 1424