Do public members of a Texas state board or commission get paid a daily per diem for their service?

TX AG Opinion GA-0318: Are the public members of the State Emergency Communications Commission entitled to compensatory per diem?

Plain-English summary

The Commission on State Emergency Communications oversees Texas's statewide 911 system. It has twelve members: three nonvoting ex officio members who hold other state offices, several appointees who hold local government offices, and five members who serve as representatives of the general public. The Commission's executive director asked the Attorney General a narrow pay question: are those five public members entitled to "compensatory per diem"?

Compensatory per diem is a flat daily payment for service (here $30 a day under the 2003 budget), which is different from reimbursing a member's actual travel or other expenses. The request had already conceded that the ex officio members get no compensatory per diem (they serve by reason of their state offices) and that the local-officeholder members are barred from it by Government Code section 574.005. So the question came down to the five public members.

The Attorney General concluded they are not entitled to compensatory per diem. The chain of statutes works like this: Government Code section 659.032 says a state board member is entitled to a per diem "in an amount set by the General Appropriations Act," and the Appropriations Act in turn provides for "compensatory per diem, if specifically authorized by law." The phrase "if specifically authorized by law" is the catch. The opinion read it to require a specific grant of compensatory per diem in the agency's own enabling legislation, and chapter 771 of the Health and Safety Code, which creates the Commission, contains no such grant.

Some had argued that a different budget provision, Article IX, section 4.04(d) of the Appropriations Act (about agencies with a "Schedule of Exempt Positions and Per Diem"), supplied the authorization. The opinion rejected that. Drawing on the Texas Supreme Court's decision in Jessen Associates v. Bullock, it held that section 4.04(d) is a rider, not an item of appropriation. A rider may detail, limit, or restrict the use of appropriated funds, but it may not enact or amend general law; if 4.04(d) were read to grant per diem authority, it would be an unconstitutional general law inside an appropriations bill under Article III, Section 35. Read properly, 4.04(d) just caps amounts, it does not authorize the pay. The opinion pointed to several other agencies whose enabling statutes do specifically authorize compensatory per diem, confirming that chapter 771's silence meant the five public members could not receive it.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

The Commission on State Emergency Communications and its public members: The opinion concluded the five public members were not entitled to compensatory per diem, because neither the Commission's enabling statute nor any other law specifically authorized it. (Members could still be reimbursed for expenses as provided by law; the opinion addressed only the flat compensatory payment.)

State boards and commissions generally: The opinion confirmed that compensatory per diem for state board members requires specific authorization in the agency's enabling legislation, and that a General Appropriations Act rider cannot supply that authorization without running into the constitutional bar on general law in an appropriations bill.

The Legislature: The opinion located the fix in the enabling statute. Other agencies' statutes expressly authorized compensatory per diem; if the Commission's public members were to receive it, chapter 771 would have to say so.

Common questions

Were the five public members of the 911 Commission entitled to a daily per diem payment?
No. The opinion concluded they were not entitled to compensatory per diem because no statute specifically authorized it for them.

What is "compensatory per diem," and how is it different from expense reimbursement?
The opinion described compensatory per diem as a fixed daily compensation for services (here $30 per day), in contrast to reimbursement of a member's actual expenses. Reimbursement of reasonable and necessary expenses was a separate matter.

Why wasn't the General Appropriations Act enough to authorize it?
The Appropriations Act provides compensatory per diem only "if specifically authorized by law." The opinion read that to require a specific grant in the agency's enabling statute, and chapter 771 had none.

Didn't section 4.04(d) of the Appropriations Act authorize the payment?
The opinion said no. It treated 4.04(d) as a budget rider, not a freestanding law, and reasoned that a rider may only detail, limit, or restrict the use of funds. Reading it to grant per diem authority would make it an unconstitutional general law under Article III, Section 35.

How can other state board members get compensatory per diem, then?
The opinion noted that several agencies' enabling statutes (for example, in the Finance Code, Health and Safety Code, Human Resources Code, and Tax Code) specifically authorize compensatory per diem. Chapter 771 contains no comparable provision.

Background and statutory framework

The Commission on State Emergency Communications is created under Health and Safety Code chapter 771, subchapter B (§§ 771.031-.039), with nine appointed members and three ex officio members (§ 771.031). The pay question runs through Government Code section 659.032, which entitles a "state board" member to a per diem "in an amount set by the General Appropriations Act," and section 659.031, which defines "state board" to include executive-branch commissions (but not bodies elected by the people). The 2003 General Appropriations Act, Article IX, section 4.04(a)(1), provides for "compensatory per diem, if specifically authorized by law," at $30 per day. The opinion read "specifically authorized by law" to require a grant in the agency's enabling statute, and chapter 771 (§§ 771.001-.108) has none.

The rider analysis comes from Jessen Associates v. Bullock, 531 S.W.2d 593 (Tex. 1975), where the Texas Supreme Court held that a budget provision directing the use of funds was a rider, not an item of appropriation. A valid rider may "detail, limit, or restrict" appropriated funds but may not enact or amend general law, and a general law embedded in an appropriations bill violates Article III, Section 35 of the Texas Constitution. Section 4.04(d), read to avoid that result, merely caps per diem amounts. The opinion contrasted chapter 771 with enabling statutes that do specifically authorize compensatory per diem, such as Finance Code section 15.207(b), Health and Safety Code section 461.009, Human Resources Code section 101.005(a), and Tax Code section 5.101(t). The opinion also noted that section 574.005 of the Government Code bars local officeholders serving on a state agency from receiving such compensation, and section 659.033 addresses how an Appropriations Act setting affects per diem amounts.

Citations

Statutes and constitutional provisions:

• Tex. Health & Safety Code Ann. §§ 771.001-.108, 771.031-.039, 771.031(a), (b), (c), (d), 771.034 (Vernon 2003 & Supp. 2004-05)
• Tex. Gov't Code Ann. §§ 574.005(a)-(b), 659.031, 659.032(a), 659.033 (Vernon 2004)
• Tex. Fin. Code Ann. § 15.207(b) (Vernon Supp. 2004-05)
• Tex. Health & Safety Code Ann. § 461.009 (Vernon 2001)
• Tex. Hum. Res. Code Ann. § 101.005(a) (Vernon 2001)
• Tex. Tax Code Ann. § 5.101(t) (Vernon 2002)
• Tex. Const. art. III, § 35
• General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(a)(1), (d), 2003 Tex. Gen. Laws 5023, 5893-94

Cases:

• Jessen Associates v. Bullock, 531 S.W.2d 593 (Tex. 1975)

Other authorities:

• Tex. Att'y Gen. Op. Nos. JM-349 (1985), V-1254 (1951), DM-116 (1992), MW-585 (1982), MW-51 (1979), JC-0178 (2000), JM-167 (1984), H-321 (1974)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0318
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0318.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 29, 2005

Mr. Paul Mallett
Executive Director, Commission on State Emergency Communications
333 Guadalupe Street, Suite 2-212
Austin, Texas 78701-3942

Opinion No. GA-0318

Re: Whether certain members of the Commission on State Emergency Communications are entitled to receive compensatory per diem (RQ-0288-GA)

Dear Mr. Mallett:

You ask whether certain members of the Commission on State Emergency Communications are entitled to receive compensatory per diem.[1]

The Commission on State Emergency Communications (the "Commission") is created under subchapter B of chapter 771 of the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 771.031-.039 (Vernon 2003). The Commission is "composed of nine appointed members and three ex officio members." Id. § 771.031(a). The executive director of the Public Utility Commission, the executive director of the General Services Commission, and the Commissioner of Public Health, or their designees, serve as nonvoting ex officio members. See id. § 771.031(b).[2] The lieutenant governor and the speaker of the house of representatives each appoints two members to serve as representatives of the general public. See id. § 771.031(c). The governor appoints five members, as follows:

(1) one member who serves on the governing body of a regional planning commission;

(2) one member who serves as a director or is on the governing body of an emergency communication district;

(3) one member who serves on the governing body of a county;

(4) one member who serves on the governing body of a home-rule municipality that operates a 9-1-1 system that is independent of the state's system; and

(5) one member as a representative of the general public.

Id. § 771.031(d).

Section 771.034 of the Health and Safety Code provides that "[t]he expenses of a member of the commission shall be paid as provided by the General Appropriations Act." Id. § 771.034. You acknowledge that "the ex officio members, who serve by reason of their state office, are not entitled to compensatory per diem." Request Letter, supra note 1, at 1. You also note that section 574.005 of the Government Code prohibits local elected and appointed members of the Commission from receiving compensatory per diem. See id.[3] You ask whether the remaining members of the Commission, the public representative appointed by the governor and the four public members appointed, respectively, by the lieutenant governor and the speaker of the house, are entitled to receive compensatory per diem. See id. at 2. We limit our answer accordingly.

Section 659.032 of the Government Code provides that "[a] member of a state board is entitled to a per diem in an amount set by the General Appropriations Act for the member's service on the board." TEX. GOV'T CODE ANN. § 659.032(a) (Vernon 2004). "State board" is defined for purposes of this provision as "a board, commission, committee, council, or similar agency in the executive or judicial branch of state government that is composed of two or more members. The term does not include a board, commission, committee, council, or similar agency whose membership is elected by vote of the people." Id. § 659.031. Because the Commission is a part of the executive branch, it is a "state board" whose members are entitled to receive per diem.

The 2003 General Appropriations Act describes three kinds of per diem. Only the first is relevant to your question. Article IX, section 4.04(a)(1) of the General Appropriations Act provides, in relevant part:

(a) As authorized by [section] 659.032, Government Code, the per diem of state board and commission members consists of:

(1) compensatory per diem, if specifically authorized by law, at $30 per day[.]

General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(a)(1), 2003 Tex. Gen. Laws 5023, 5893-94. "Compensatory per diem" constitutes a fixed compensation at a daily rate, in contrast to reimbursement for expenses. See Tex. Att'y Gen. Op. No. JM-349 (1985) ("[t]he kind of flat rate compensatory per diem established by the Appropriations Act does not represent reimbursement for expenses but compensation for services"). Thus, under this provision, the five public members of the Commission are entitled to receive compensatory per diem at the rate of $30 per day if specifically authorized by law. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(a)(1), 2003 Tex. Gen. Laws 5023, 5894.

Section 4.04(a) itself refers to section 659.032 of the Government Code, which in turn refers to subsection 4.04(a) of the General Appropriations Act provision. See id.; TEX. GOV'T CODE ANN. § 659.032 (Vernon 2004). However, neither subsection 4.04(a), section 771.034 of the Health and Safety Code, nor any other provision of law specifically authorizes the payment of compensatory per diem. See General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(a)(1), 2003 Tex. Gen. Laws 5023, 5894; TEX. HEALTH & SAFETY CODE ANN. § 771.034 (Vernon 2003). We believe the most reasonable approach is to construe section 4.04(a) to require a specific grant of compensatory per diem in the enabling legislation that creates a governmental body.[4] In the situation you pose, no such grant appears in chapter 771 of the Health and Safety Code, the Commission's enabling legislation.

It has been suggested, however, that subsection (d) of section 4.04 of article IX of the 2003 General Appropriations Act provides the necessary authorization for the payment of compensatory per diem by the Commission. See Request Letter, supra note 1, at 2. That provision states:

(d) An agency that has a "Schedule of Exempt Positions and Per Diem of Board (or Commission) Members" following the agency's appropriations may expend appropriations for board or commission member compensatory per diem in an amount not to exceed the amount specified in the schedule for each respective fiscal year.

General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(d), 2003 Tex. Gen. Laws 5023, 5894. We must first determine whether subsection (d) is an item of appropriation or a non-appropriating rider.

In Jessen Associates v. Bullock, 531 S.W.2d 593 (Tex. 1975), the Texas Supreme Court considered a rider to the appropriation for the University of Texas which read as follows:

The Board of Regents of The University of Texas System is hereby authorized (1) to expend such amounts of its Permanent University Fund bond proceeds and/or other bond proceeds and such amounts of its other available moneys as may be necessary to fund one or more of the following projects either in whole or in part, (2) to accept gifts, grants, and matching grants to fund any one or more of such projects either in whole or in part, and (3) to acquire, construct, alter, add to, repair, rehabilitate, equip and/or furnish any one or more of such projects for The University of Texas at Austin: (1) Alterations and Additions to Law School . . . [,]

Jessen Assocs., 531 S.W.2d at 597 (footnote omitted). The court held that this rider "was not intended by the Legislature to appropriate funds, and therefore was not an 'item of appropriation.'" Id. at 596. According to the court, the purpose of the rider was to "direct the use of" funds appropriated elsewhere "by giving express legislative approval to the projects specified." Id. at 600. By the same reasoning, section 4.04(d), the provision at issue here, is not an item of appropriation.

If subsection (d) is not an item of appropriation, it must necessarily constitute a rider. See generally id. Article III, section 35 of the Texas Constitution provides that "[n]o bill (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject." TEX. CONST. art. III, § 35. A rider is valid if it merely "detail[s], limit[s], or restrict[s]" the use of appropriated funds. Tex. Att'y Gen. Op. No. V-1254 (1951) at 8. A rider may not, however, enact general law. See Tex. Att'y Gen. Op. Nos. DM-116 (1992) at 2-3 (rider may not require Department of Aging to "use the service standards, systems, billing and audit procedures, and provider bases used by the Department of Human Services"); MW-585 (1982) at 2-3 (rider is invalid as "a general directive to the state Board of Barber Examiners . . . to take specific affirmative action"); MW-51 (1979) at 4-5 (rider is invalid because it directed State Board of Control to "establish a maximum and a minimum monthly charge for state employee parking"); V-1254 (1951) at 12 (rider is invalid because it required all state-owned passenger vehicles to be sold not later than October 1, 1951). Nor may a rider amend or conflict with general law. See Tex. Att'y Gen. Op. Nos. JC-0178 (2000) at 3-4 (rider may not change formula for allocation of funds for distribution of emergency medical services and trauma care funds where statute sets formula); JM-167 (1984) at 2-3 (rider may not confer affirmative duty to "enter into a contract with the Texas Lions League or a similar organization to provide rehabilitation services to blind adults at the Texas Lions Camp for Crippled Children" where statute places decision to enter such a contract within the discretion of the Commissioner of Health); H-321 (1974) at 3 (rider may not repeal statutory freedom of choice accorded to inmates of Department of Corrections in selecting medical care).

Subsection (d) does not purport to amend section 659.032 of the Government Code, which provides that "[a] member of a state board is entitled to a per diem in an amount set by the General Appropriations Act for the member's service on the board." TEX. GOV'T CODE ANN. § 659.032(a) (Vernon 2004). On the other hand, subsection 4.04(a)(1) of the Appropriations Act, as we have noted, refers to section 659.032 of the Government Code and declares that the per diem of state board and commission members consists of "compensatory per diem, if specifically authorized by law." General Appropriations Act, 78th Leg., R.S., ch. 1330, art. IX, § 4.04(a)(1), 2003 Tex. Gen. Laws 5023, 5893-94. Because section 4.04(d) is a rider to the General Appropriations Act, it may not be construed to constitute a specific law. If subsection (d) were deemed to do so, it would necessarily do more than detail, limit, or restrict the use of appropriated funds. Indeed, it would constitute a general law within the Appropriations Act and, as such, would be invalid under article III, section 35 of the Texas Constitution. In order to avoid this conclusion, we interpret the meaning of subsection (d) to lie in its limiting language: "in an amount not to exceed the amount specified in the schedule for each respective fiscal year." Id. § 4.04(d), at 5894. Construed thus, section 4.04(d) merely details, limits, or restricts the use of appropriated funds.

We are supported in this view by a number of statutes that specifically authorize the payment of compensatory per diem in an agency's enabling statute. See, e.g., TEX. FIN. CODE ANN. § 15.207(b) (Vernon Supp. 2004-05) ("For each day that a commission member engages in the business of the commission, the member is entitled to: (1) per diem, including compensatory per diem . . . ."); TEX. HEALTH & SAFETY CODE ANN. § 461.009 (Vernon 2001) (A member of the Commission on Alcohol and Drug Abuse "is entitled to receive: (1) the compensatory per diem authorized by the General Appropriations Act for each day spent in performing the member's official duties . . . ."); TEX. HUM. RES. CODE ANN. § 101.005(a) (Vernon 2001) (members of the Citizens Advisory Council "are entitled to the compensatory per diem authorized by the General Appropriations Act"); TEX. TAX CODE ANN. § 5.101(t) (Vernon 2002) ("A member of the [Technical Advisory] committee may receive compensatory per diem for serving on the committee . . . ."). Chapter 771 of the Health and Safety Code, on the other hand, contains no specific authorization for a member of the Commission on State Emergency Communications to receive payment for compensatory per diem. See TEX. HEALTH & SAFETY CODE ANN. §§ 771.001-.108 (Vernon 2003 & Supp. 2004-05).

We conclude therefore that the five public members of the Commission on State Emergency Communications are not entitled to receive compensatory per diem.

SUMMARY

The five public members of the Commission on State Emergency Communications are not entitled to receive compensatory per diem.

BARRY R. McBee
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Paul Mallett, Executive Director, Commission on State Emergency Communications, to Honorable Greg Abbott, Texas Attorney General (Oct. 27, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] The Texas General Services Commission has been renamed the Texas Building and Procurement Commission, and the Texas Department of Public Health has become a part of the Texas Department of State Health Services.

[3] Section 574.005 provides, in relevant part: (a) In this section: (1) "Local government" means a county, a municipality, a special district or authority, or another political subdivision of this state. (2) "State agency" means a department, commission, board, office, council, authority, or other agency in the executive branch of state government that is created by the constitution or a statute of this state, including a university system or institution of higher education as defined by Section 61.003, Education Code. (b) An individual who holds an elected or appointed local government office may be appointed to the governing body of a state agency if otherwise eligible. The individual may not receive compensation for serving on the governing body of the state agency but may be reimbursed as provided by other law for a reasonable and necessary expense incurred in the performance of an official function. TEX. GOV'T CODE ANN. § 574.005(a)-(b) (Vernon 2004).

[4] The amount of compensatory per diem may not be specified, but merely the fact of its availability. Section 659.033 of the Government Code provides: (a) A law setting the amount of per diem for members of a state board is suspended to the extent of conflict with this subchapter. (b) The law setting the amount of per diem for a member of a state board is not suspended if the General Appropriations Act does not set the amount of per diem to which the member is entitled. (c) A law setting a limit on the number of days for which a state board member is entitled to a per diem is not suspended by this subchapter. TEX. GOV'T CODE ANN. § 659.033 (Vernon 2004) (emphasis added).