Were members of the State Property Tax Board entitled to the $30 compensatory per diem provided for state board and commission members in the appropriations act?
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This page answers the general question as of 1985. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-349: State Property Tax Board Per Diem
Plain-English summary
The State Property Tax Board asked whether its members were entitled to compensatory per diem under article 6813f and the General Appropriations Act. The new appropriations rider set compensatory per diem for state board and commission members at $30 per day, in addition to authorized meals, lodging, and transportation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
JM-349 distinguished compensatory per diem, which paid for services, from reimbursement for actual expenses. Because compensation could make a position a lucrative office or office of emolument, entitlement also could affect the constitutional dual-office-holding analysis. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Tax Code section 5.01(i), however, expressly said Board members could not receive compensation for service and were entitled only to reimbursement for actual and necessary travel expenses. Article 6813f displaced laws prescribing a different amount of per diem, but it did not override a law prohibiting compensation altogether. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
The opinion also relied on the Legislature's deletion of language from the bill that would have suspended statutory prohibitions on per diem. It therefore concluded that State Property Tax Board members could not receive the $30 compensatory payment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Currency note
This opinion was issued in 1985. 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.
Common questions
Was the $30 payment reimbursement for expenses?
No. The opinion treated the flat compensatory per diem as compensation for services, separate from meals, lodging, and transportation reimbursement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Could Board members still recover travel expenses?
Yes. Section 5.01(i) allowed reimbursement for actual and necessary expenses incurred on official travel, as provided by appropriation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Why didn't article 6813f supersede the Tax Code?
Article 6813f superseded conflicting laws prescribing an amount of per diem. Section 5.01(i) prescribed no amount; it prohibited compensation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Why did the opinion discuss dual office holding?
Compensatory per diem could make an office lucrative or an office of emolument, potentially barring simultaneous service in another compensated public office. The Board members' lack of entitlement made it unnecessary to pursue the remaining questions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Background and statutory framework
Article 6813f generally entitled members of state boards and commissions to the per diem amount set by the General Appropriations Act and suspended conflicting laws that prescribed other amounts. The appropriations rider effective September 1 set $30 compensatory per diem and separately addressed expenses and transportation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Tax Code section 5.01(i) was a board-specific rule barring compensation and authorizing only actual and necessary expense reimbursement. The opinion treated that targeted prohibition as controlling. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Citations and references
- V.T.C.S. art. 6813f
- Tax Code §5.01(i)
- Tex. Const. art. XVI, §40
- Educ. Code §§61.026, 85.15
- 26 U.S.C. §162(i)(1)(B)(ii)
- Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)
- Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972)
- Attorney General Opinion MW-388 (1981)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0349
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0349.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
August 31, 1985
Mr. Ron Patterson
Executive Director
State Property Tax Board
9501 North IH-35
Austin, Texas 78761
Opinion No. JM-349
Re: Whether members of the State Property Tax Board are entitled to compensatory per diem
Dear Mr. Patterson:
You have requested our opinion regarding the payment of compensatory per diem to members of the State Property Tax Board.
Article 6813f, V.T.C.S., last amended in 1983, provides in its entirety:
Section 1. In this Act, “state board or commission” means a board, commission, committee, council, or other similar agency in the state government that is composed of two or more members.
Sec. 2. A member of a state board or commission is entitled to per diem relating to the member's service on the board or commission. The amount of the per diem is the amount prescribed by the General Appropriations Act.
Sec. 3. Each law prescribing the amount of per diem relating to membership on a state board or commission is suspended to the extent of a conflict with this Act. If the General Appropriations Act does not prescribe the amount of per diem to which a member of a state board or commission is entitled by law, the law prescribing the amount of per diem is not suspended by this Act. If a law imposes a limit on the number of days for which a member of a state board or commission is entitled to claim per diem, the limit is not suspended by this Act.
The General Appropriations Act for the 1983-85 biennium established a per diem allowance consisting of
actual expenses for meals and lodging (not to exceed the maximum daily amount allowed as of the first of January of that year for federal income tax purposes as a deduction for ordinary and necessary business expenses) and transportation plus the amount of compensatory per diem specifically authorized in this Act or as otherwise authorized by this Act.
Acts 1983, 68th Leg., ch. 1095, art. V, §4. The new General Appropriations Act, which became effective on September 1, 1985, substitutes for the foregoing the following language:
Sec. 4. PER DIEM OF BOARD OR COMMISSION MEMBERS. As authorized by Section 2 of Article 6813f, Texas Revised Civil Statutes Annotated, the per diem of state board and commission members shall consist of (1) the amounts of compensatory per diem at $30 per day; (2) actual expenses for meals and lodging as authorized by this Act not to exceed the maximum amount allowed as a deduction for state legislators while away from home during a legislative session as established pursuant to the Internal Revenue Code 26 U.S.C. Section 162(i)(1)(B)(ii); and (3) transportation. In the event the maximum amount allowed as a deduction for state legislators pursuant to the Internal Revenue Code as provided above is raised to an amount above $100, the maximum amount of meals and lodging portion of the per diem paid to board and commission members under this section shall not exceed $100.
The items of appropriation for per diem of board or commission members include compensatory per diem only. No employee paid from funds appropriated by this Act shall be paid both a salary and compensatory per diem for concurrent service as a state employee and as a board or commission member.
Acts 1985, 69th Leg., ch. 980, art. V, §4. The principal difference between the two riders is that, for 1985-87, the rate of “compensatory per diem” is specified in the rider at a particular amount, i.e., $30 per day, as well as in the line item for compensatory per diem in each agency's appropriation. In the prior act, only the latter was included. In both instances, however, as well as historically, the kind of flat rate compensatory per diem established by the Appropriations Act does not represent reimbursement for expenses but compensation for services. This office reached a similar conclusion in Attorney General Opinion MW-388 (1981):
We believe the wording of article 6813f and this appropriations act provision plainly reflects a legislative intent to adopt, for at least the two year biennium, a more expansive definition of per diem which embraces both actual expenses for meals and lodging and a fixed daily rate payment.
When a per diem which represents compensation, in contrast to per diem which represents reimbursement for expenses, is provided by law for a particular office, that office may be held to be “lucrative,” Willis v. Potts, 377 S.W.2d 622 (Tex. 1964), and thus, an “office of emolument” for purposes of article XVI, section 40 of the Texas Constitution, the dual office holding provision. As a result, if a member of the State Property Tax Board is entitled to compensatory per diem, he could be prohibited from holding any other office of emolument. Compare Whitehead v. Julian, 476 S.W.2d 844 (Tex. 1972); Willis v. Potts, supra.
In our opinion, however, a member of the Board is not entitled to compensatory per diem. Section 5.01(i) of the Tax Code provides:
A member of the board may not receive compensation for his service on the board but is entitled to reimbursement for actual and necessary expenses, as provided by legislative appropriation, incurred while on travel status in the performance of official duties.
Section 3 of article 6813f, the statute which furnishes the basis for the per diem rider, preempts every “law prescribing the amount of per diem relating to membership on a state board or commission.” Section 5.01(i) is not, however, such a law. Rather than “prescribing” an amount of per diem, that provision prohibits the payment of any amount that does not represent reimbursement for expenses. Numerous other statutes specifically prohibit the payment of compensation to board or commission members, and to the extent they do so, they are not preempted by article 6813f. See, e.g., Education Code, §§61.026, 85.15. This conclusion is bolstered by the deletion of a key sentence from the original bill which became article 6813f. House Bill 401 initially provided:
If a law prohibits a per diem to be paid to a member of a state board or commission, the prohibition is suspended by this Act.
We believe that the deletion of this language from the final bill as enacted indicates a legislative intent in article 6813f not to modify the provisions of particular statutes which prohibit payment of compensation. Accordingly, a member of the State Property Tax Board is not entitled to receive compensatory per diem for service on the Board. Since we answer your first question in the negative, we need not address your other questions.
SUMMARY
A member of the State Property Tax Board is not entitled to receive compensatory per diem, as provided in article V, section 4 of the current General Appropriations Act, for service on the Board.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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