How much can members of a state board or advisory committee be paid back for their costs, and does everyone get the daily per diem?

Texas AG Opinion JM-954: Who Gets Actual Expenses and Who Gets Per Diem?

Plain-English summary

When a state agency runs a board plus a handful of advisory committees, a practical bookkeeping question comes up: what do the volunteers who serve on each body get paid to show up? Texas has a general per diem law that sets a standard amount, but individual statutes and executive orders sometimes set something different. The Rehabilitation Commission asked the Attorney General to sort out the pay rules for seven different bodies, and the answers were not all the same.

The starting point is article 6813f, the general per diem statute for state boards and commissions. It pegs per diem to whatever the General Appropriations Act says, which at the time meant $30 a day in compensatory per diem, plus actual meal and lodging costs up to $75 a day, plus transportation. But article 6813f steps aside when a more specific law sets its own amount.

For the commission's own board, and for its Consumer Advisory Committee, that specific law existed. Their governing statutes had been amended in 1985 to authorize reimbursement for actual and necessary expenses, and the Attorney General had already decided in a companion opinion about the Board of Irrigators that a 1985 amendment like this one reenacted the actual-expense authority and made it the later, controlling law. So members of the board and the Consumer Advisory Committee get their actual expenses.

The other five bodies had no such specific statute, so they fell back on the general rule. The Governor's Committee for Disabled Persons had been set up by an executive order that tried to promise members their actual and necessary expenses, but the Attorney General pointed out that a governor cannot change existing law just by issuing a proclamation. Without statutory authority, the governor could not set a per diem that conflicts with the general law, so those members are limited to expense reimbursement under the appropriations act.

The State Independent Living Council, the Deaf-Blind Advisory Committee, and the Statewide Steering Committee were all in the same position: they are covered by the general per diem law, so their members get expense reimbursement under the appropriations act, but they do not get the extra $30-a-day compensatory per diem, because no statute authorizes it for them.

The last body was different in kind. The Medical Consultation Committee was a group of physicians who had actually contracted with the commission to provide professional services under the Professional Services Procurement Act. They are not really a per diem question at all: they get paid according to the terms of their contracts.

Currency note

This opinion was issued in 1988. 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.

The Texas Rehabilitation Commission was later abolished and its functions moved to successor agencies, and chapter 111 of the Human Resources Code has since been amended and in part relocated. Article 6813f, V.T.C.S., the general per diem statute, and the Professional Services Procurement Act have been recodified into the Government Code, and the per diem dollar amounts quoted here reflect the 1987 appropriations act, not current figures. Anyone computing board or committee reimbursement today should use the current per diem statute, the current appropriations act, and the specific enabling statute for the body in question.

Who this opinion affected (as of 1988)

Rehabilitation Commission board and Consumer Advisory Committee members: They were entitled to reimbursement for their actual and necessary expenses.

Members of the Governor's Committee, Independent Living Council, Deaf-Blind Advisory Committee, and Statewide Steering Committee: They were limited to expense reimbursement under the appropriations act, and generally not entitled to the extra compensatory per diem.

Agency accounting staff: The opinion gave them a body-by-body rule for what to pay each group, and a reminder that an executive order cannot override the general per diem statute.

Common questions

Do all state board and committee members get the same per diem?
No. The answer depends on the specific statute for each body. Some had a 1985 amendment authorizing actual-expense reimbursement, which controls over the general per diem law; others fall back on the general law and the appropriations act.

Can the governor set a higher per diem by executive order?
No. The Attorney General concluded that the governor cannot change existing law merely by issuing a proclamation, so absent statutory authority the governor may not set a per diem that conflicts with article 6813f.

What is the difference between expenses and compensatory per diem?
Expense reimbursement covers actual and necessary costs like meals, lodging, and travel. Compensatory per diem is a separate flat daily allowance (here $30 a day). Several of the committees got expense reimbursement but not the flat compensatory per diem.

How were the medical consultants paid?
The physicians on the Medical Consultation Committee had contracted with the commission under the Professional Services Procurement Act, so they were paid according to the terms of their contracts rather than under the per diem rules.

Background and statutory framework

Article 6813f, V.T.C.S. (enacted 1981), is the general provision for per diem of members of state boards or commissions. It defines a state board or commission broadly to include a board, commission, committee, council, or similar executive or judicial branch agency of two or more members, entitles a member to per diem in the amount prescribed by the General Appropriations Act, and excludes legislators serving ex officio. Section 3 provides that a law prescribing per diem is suspended to the extent it conflicts with article 6813f, but is not suspended where the appropriations act does not prescribe the amount, and a statutory limit on the number of per diem days is not suspended. The current appropriations act (Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, section 4(a)) set compensatory per diem at $30 per day, actual meal and lodging expenses not to exceed $75 per day, and transportation, and provided that a later law authorizing per diem without specifying the amount takes the same figures.

Board members (section 111.015). Section 111.015 of the Human Resources Code was amended in 1985 to entitle board members to reimbursement for actual and necessary expenses plus the compensatory per diem authorized by the appropriations act. The commission and the Comptroller disagreed about whether the 1985 amendment made section 111.015 a later enactment than article 6813f, since the amendment left the actual-expense words unchanged. The Attorney General had confronted essentially the same argument in Attorney General Opinion JR-888 (1988), involving a 1985 amendment to the Board of Irrigators per diem statute that replaced a fixed compensatory figure with a reference to the appropriations act while keeping the actual-expense language. That opinion concluded the 1985 amendment reenacted the actual-expense authorization, because the statutory reference to the appropriations act eliminated any argument that the legislature was unaware of the conflict, so the specific statute prevailed over article 6813f. Applying the same reasoning, the Attorney General concluded that the actual-travel-expense provision for Rehabilitation Commission board members had been reenacted, and board members are entitled to reimbursement for actual expenses.

Consumer Advisory Committee (section 111.016). The committee is established under section 111.016 of the Human Resources Code, subsection (d) of which entitles members to reimbursement for actual and necessary expenses. The 1985 amendment (Acts 1985, 69th Leg., ch. 603) required the commission to establish a consumer advisory committee and added compensatory per diem language while retaining the actual-expense language. For the reasons set out in Attorney General Opinion JR-888, the Attorney General concluded the 1985 amendment reenacted the actual-expense provision, so committee members are entitled to reimbursement for actual expenses.

Governor's Committee for Disabled Persons. This committee was reestablished by Executive Order No. WPC 87-16 (1987), which purported to entitle appointed members to actual and necessary expenses limited to available funds. In Attorney General Opinion JM-382 (1985), the Attorney General concluded that article 6813f applies to boards and committees established by executive order, and that the governor has no power to change existing law merely by issuing a proclamation (Terrell Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824, 827 (Tex. Civ. App. - San Antonio 1944, writ ref'd)). Absent specific statutory authority, the governor may not set a per diem that conflicts with article 6813f, so members are entitled to reimbursement for expenses subject to the appropriations act limits.

State Independent Living Council. Federal law requires a state receiving federal independent-living funds to establish a State Independent Living Council (29 U.S.C. section 796d(a)(1); see generally 29 U.S.C. sections 796-796i), with members appointed by the designated state agency (assumed to be the Rehabilitation Commission; see Hum. Res. Code sections 111.051, 111.053). Under Attorney General Opinion JM-382, article 6813f applies to state committees created pursuant to agency authority, and absent specific authority an agency may not allow reimbursement exceeding article 6813f and the appropriations act (Attorney General Opinion JM-457 (1986)). Council members are therefore entitled to expense reimbursement under the appropriations act but not to compensatory per diem absent a specific authorizing statute.

Deaf-Blind Advisory Committee. Created by the commission under its authority to establish programs for deaf-blind multihandicapped individuals (Hum. Res. Code section 113.001). Because no specific statutory authority governs the committee, article 6813f applies: members are entitled to travel-expense reimbursement under the appropriations act but not to compensatory per diem.

Statewide Steering Committee. Established under Senate Concurrent Resolution 135 (70th Leg.), composed of representatives of various agencies to report to the legislature. Because its members are apparently employees or volunteer agents of specific state agencies, the committee is in the executive branch and article 6813f applies (article 6813f does not apply to legislative-branch committees). Members are entitled to expense reimbursement under the appropriations act but not to compensatory per diem.

Medical Consultation Committee. Created under section 111.052 of the Human Resources Code, this committee is a group of medical practitioners reimbursed under the Professional Services Procurement Act (Art. 664-4). The Attorney General assumed the committee was created under the commission's authority to contract with doctors for rehabilitation services (section 111.052(b)(6)) or with individuals as necessary to implement chapter 111 (section 111.052(b)(3)). Because the physicians contracted to provide professional services, they are entitled to payment in accordance with the terms of their contracts.

Citations

Statutory authority:

• Article 6813f, V.T.C.S. (general per diem for state boards and commissions)
• Section 111.015, Human Resources Code (Rehabilitation Commission board member reimbursement)
• Section 111.016, Human Resources Code (Consumer Advisory Committee)
• Section 111.052, Human Resources Code (commission contracting authority, Medical Consultation Committee)
• Section 113.001, Human Resources Code (deaf-blind programs)
• 29 U.S.C. section 796d(a)(1) (federally required State Independent Living Council)
• Art. 664-4, Professional Services Procurement Act
• General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, section 4(a) (per diem amounts)

Cases:

• Terrell Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824 (Tex. Civ. App. - San Antonio 1944, writ ref'd) (Texas appellate court; governor cannot change existing law by proclamation)

Prior Attorney General opinions referenced: JR-888 (1988), JR-426 (1986), JM-382 (1985), JR-349 (1985), MW-388 (1981), JM-457 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-954
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0954.pdf

Original opinion text

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

September 16, 1988

Mr. Vernon M. Arrell
Commissioner
Texas Rehabilitation Commission
118 E. Riverside Drive
Austin, Texas 78704-9982

Opinion No. JM-954

Re: Per diem for members of the Board of Texas Rehabilitation Commission and its subordinate components (RQ-1330)

Dear Commissioner Arrell:

You ask about the per diem to be paid to members of the Texas Rehabilitation Commission as well as the per diem to be paid to members of several subordinate or related committees, councils, and advisory boards.

Article 6813f, V.T.C.S., is a general provision dealing with per diem for members of "state boards or commissions." Article 6813f, which was originally enacted in 1981, provides:

Sec. 1. In this Act, "state board or commission" means a board, commission, committee, council, or other similar agency in the executive or judicial branch of state government that is composed of two or more members.

Sec. 2. (a) 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.

(b) This section does not apply to a member of the legislature who serves on a board or commission by virtue of the member's position as a legislator.

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.

See generally Attorney General Opinions JR-888 (1988); JR-426 (1986); JM-382, JR-349 (1985); MW-388 (1981).

The current appropriations act sets out the following per diem allowances:

Sec. 4. PER DIEM OF BOARD OR COMMISSION MEMBERS. a. 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) compensatory per diem at $30 per day; (2) actual expenses for meals and lodging not to exceed $75 per day; and (3) transportation.

b. If a law enacted after Article 6813f authorizes per diem for members of a particular state board or commission, but does not specify the amount of the per diem, then the amount of the per diem shall be as listed in the preceding paragraph.

General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V section 4(a), at 820.

You first ask how much members of the board of the Rehabilitation Commission are entitled to receive for their expenses. Section 111.015 of the Human Resources Code was amended in 1985 to provide as follows:

(a) Board members [of the Rehabilitation Commission] are entitled to reimbursement for actual and necessary expenses incurred in the discharge of their official duties and the compensatory per diem authorized by the General Appropriations Act for each day at an official meeting as authorized by the board.

(b) A member of the board who is disabled and who, because of the disability, requires special aids or travel attendants is entitled to reimbursement for the cost of the special aids or travel attendants.

The prior version of section 111.015 provided:

Board members serve without compensation but are entitled to reimbursement for actual and necessary expenses incurred in the discharge of their official duties.

Acts 1979, 66th Leg., ch. 842, at 2421.

The Rehabilitation Commission and the Comptroller agree that a statute passed after the enactment of article 6813f that sets per diem for a particular board prevails over article 6813f. However, the Rehabilitation Commission and the Comptroller disagree about the effect of the 1985 amendments to section 111.015 of the Human Resources Code. The Rehabilitation Commission takes the position that the original version of section 111.015, which authorized actual expenses, was superseded by article 6813f, but that the 1985 amendments reenacted the authorization for actual expenses and made section 111.015 a later enactment than article 6813f. The Comptroller argues that the 1985 amendments do not make section 111.015 a later enactment than 6813f for purposes of determining the amount of expenses to which board members are entitled. The Comptroller bases his argument on the fact that the 1985 amendment left the words regarding actual expenses unchanged.

The Board of Irrigators raised essentially the same argument in Attorney General Opinion JR-888 (1988). In that opinion we considered a 1985 amendment to the statute governing per diem for members of the Board of Irrigators. That amendment replaced language allowing $25 a day in compensatory per diem with a reference to the General Appropriations Act; but it retained the exact language of the prior version regarding actual expenses. We concluded that the 1985 amendment reenacted the authorization for actual expenses because the statutory reference to the appropriations act eliminated any argument that the legislature was unaware of the existence of the appropriations act and the conflict on the appropriations act provisions and the provisions of section 111.015. We concluded, therefore, that the statute governing the Board of Irrigators prevailed over article 6813f. The reasoning of Attorney General Opinion JR-888 applies to the 1985 amendment to section 111.015 of the Human Resources Code. Therefore, we conclude that the provision authorizing actual travel expenses for board members of the Rehabilitation Commission has been reenacted and that the board members are entitled to reimbursement for actual expenses.

You next ask whether members of the Consumer Advisory Committee of the Rehabilitation Commission are entitled to actual expenses. The committee is established pursuant to section 111.016 of the Human Resources Code. Subsection (d) of section 111.016 provides that the committee members are entitled to reimbursement for actual and necessary expenses. Before 1985, section 111.016 permitted the Rehabilitation Commission to set up advisory committees. In 1985 it was amended to require the Rehabilitation Commission to set up a consumer advisory committee, and the commission's general authority to set up advisory committees was deleted. Acts 1985, 69th Leg., ch. 603, at 2273. Before the 1985 amendment subsection (d) of section 111.016 provided:

The members of the advisory committee serve without compensation but are entitled to reimbursement for actual and necessary expenses incurred in attending the official meetings of the advisory committee.

Acts 1969, 61st Leg., ch. 40, section 5(b), at 105; Acts 1971, 62d Leg., ch. 405, section 54(2), at 1533. The 1985 amendment changed subsection (d) to read as follows:

The members of the consumer advisory committee are entitled to compensatory per diem authorized by the General Appropriations Act for each day engaged in the performance of their duties as directed by the board and to reimbursement for actual and necessary expenses incurred in attending the official meetings of the consumer advisory committee.

Again, for the reasons set out in Attorney General Opinion JM-888, we conclude that the 1985 amendment reenacted the provision regarding actual expenses and that the members of the Consumer Advisory Committee are entitled to reimbursement for actual expenses.

Your third question is whether members of the Governor's Committee for Disabled Persons are entitled to receive reimbursement for actual expenses. The Governor's Committee for Disabled Persons was reestablished by an executive order issued on October 5, 1987. Executive Order No. WPC 87-16 (1987). The executive order provides in section II-3:

APPOINTED committee members shall serve without pay, but shall be entitled to actual and necessary expenses incurred in performance of COMMITTEE business, such business to include attendance at Committee meetings, telephone calls to conduct Committee business, and attendance at functions to officially represent the Committee, but such expenses shall be limited to funds available.

In Attorney General Opinion JM-382 (1985) we concluded that the per diem provisions of article 6813f, V.T.C.S., apply to boards and committees established by executive order. The governor has no power to change existing law merely by issuing a proclamation. Terrell Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824, 827 (Tex. Civ. App. - San Antonio 1944, writ ref'd). Therefore, absent specific statutory authority to do so, the governor may not set a per diem for a board or committee that conflicts with the general law set out in article 6813f. The members of the Governor's Committee for Disabled Persons are therefore entitled to reimbursement for expenses subject to the limitations set out in the appropriations act.

You next ask whether members of the State Independent Living Council are entitled to compensatory per diem and reimbursement for expenses. Federal law provides that each state receiving federal funds for the provision of independent living services for the disabled must set up a State Independent Living Council. 29 U.S.C. section 796d(a)(1). See generally 29 U.S.C. sections 796-796i. The federal statute sets out the qualifications for membership on the council and provides that the state agency designated under section 796d(a)(1) is responsible for appointing the members of the council. We assume that the Rehabilitation Commission is the agency designated in section 796d(a)(1). See Hum. Res. Code sections 111.051, 111.053; 40 T.A.C. section 101.1; ch. 107 (independent living). In Attorney General Opinion JM-382 we concluded that the provisions of article 6813f apply to state committees created pursuant to agency authority. The Independent Living Council is apparently such an agency. See generally Hum. Res. Code section 111.053 (commission may adopt methods of administration found necessary by federal government); section 111.054 (Rehabilitation Commission may comply with any requirements necessary to obtain federal funds). Absent specific authority, however, an agency may not enact a rule allowing reimbursement for expenses in excess of the amount authorized by article 6813f and the appropriations act. See Attorney General Opinion JM-457 (1986) (providing that agency rules may not conflict with statute). Therefore, members of the Independent Living Council are entitled to reimbursement for expenses as provided by the appropriations act. We also conclude that members of the Independent Living Council are not entitled to compensatory per diem in the absence of a specific statute authorizing compensatory per diem. See Attorney General Opinion JM-382 (1985).

You also ask about per diem for members of the Deaf-Blind Advisory Committee, which was created by the commission pursuant to the commission's authority to establish programs to help deaf-blind multihandicapped individuals. Hum. Res. Code section 113.001. Because there is no specific statutory authority governing the committee, article 6813f is applicable. Thus, the members are entitled to reimbursement for travel expenses as provided in the appropriations act, and they are not entitled to compensatory per diem.

You also ask about per diem for members of the Statewide Steering Committee, which was established pursuant to a Senate Concurrent Resolution. Acts 70th Leg., S.C.R. 135. It is composed of representatives of various agencies, and its purpose is to report to the legislature. The resolution is silent as to compensatory per diem and reimbursement for expenses. Because all the members of the committee are apparently employees or volunteer agents of specific state agencies, we conclude that the committee is in the executive branch and that article 6813f is applicable. See V.T.C.S. art. 6813f, section 1 (per diem provisions of article 6813f not applicable to committees in the legislative branch). Therefore, committee members are entitled to reimbursement for expenses in accordance with the provisions of the appropriations act, and they are not entitled to compensatory per diem.

Your final question regards the Medical Consultation Committee. You provide the following information about the committee:

The Medical Consultation Committee created by the Commission pursuant to Section 111.052, Human Resources Code, V.T.C.A., the membership of which is appointed by the Commission. This Committee is a group of medical practitioners that meet at various times during the year to provide consultation on medical matters to the Commission and as such are reimbursed in accordance with Art. 664-4, Professional Services Procurement Act, and the provisions of attachment G.

We assume that the committee was created either pursuant to subsection (b)(6) of section 111.052 of the Human Resources Code, which permits the rehabilitation commission to "contract with . . . doctors . . . for training, physical restoration, transportation, and other rehabilitation services," or pursuant to the more general subsection (b)(3), which authorizes the Rehabilitation Commission to contract with individuals as necessary to implement the provisions of Chapter 111 of the Human Resources Code. Those provisions and your reference to the Professional Services Procurement Act suggest that the physicians in question have contracted with the Rehabilitation Commission to provide professional services. If so, they are entitled to payment in accordance with the terms of their contracts.

SUMMARY

Members of the board of the Texas Rehabilitation Commission are entitled to reimbursement for actual expenses incurred in the discharge of their duties. Members of the Consumer Advisory Committee of the Rehabilitation Commission are entitled to reimbursement for actual expenses incurred in attending official meetings. Members of the Governor's Committee for Disabled Persons are entitled to per diem for expenses subject to the limitations set out in the appropriations act. Members of the State Independent Living Council, members of the Deaf-Blind Advisory Committee, and members of the Statewide Steering Committee are entitled to per diem for expenses subject to the limitations set out in the appropriations act and are not entitled to compensatory per diem.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General