Untitled Texas Attorney General Opinion ( 1965 )

July 28, 1965 Honorable Robert S. Calvcrt Comptroller of Public Accounts Austin, Texas Opinion No. C- 472 Re: Construction of the term “counnercial hotel, motel, or other commercial lodg- ing establlehment~’ within the meaning of Section 15 o? Article V of the Oeneral Appropriation Act of the Ders Hr. Calvert: 59th Leglalature. Your requqat for an opinion on the above subject matter asks the followlpg questions, in view of the provislonr of parqraph a of Seution 15 of the @enerr Approprlatlc)n A+ of the 59th Leglrlature: “Pleaw rdvlre &at rate of per diem should be allowed UndeP the following con- ditions? “1. Military property auditors of the Adjutant Qeneral’s Dcpirtment while travel- Ing to Houston, San Antonio, Ikllas and El Pas0 stay at the reapeative mllit&ry baeea - Blllngton Air POxye BaaOr Auckland Alr Force Ea;,z*;d Pralr%e Naval Air Station and . These 8uditorCb 8re oharged a small rate per night by these installations for their lodging. “2. State emplogeen ite often in traveling to educational anr eleemoaynarg institutions in the performance of their duties obtein lodging at the, institutions visited, for whloh a aharge 14 made for quarters. -2237- ii?& ~‘Robert S. .CaJVePt, page: 2 iC-472 ) “Please define’ for ‘jne the teqn’oommer- clal hotel;~ motel and other, commapclal ,lodg- lng establlshmentsi” Paragraph a o$ Section 13 dC Artlcle:W of the Generai AppropFiatlon Act of the 59th’Legislature provides: ~“Ratea of allowance. Each employee .traveling on State bueilness .lnslds the~boun- darles of the. State of Texas. shall be allow- ed,.. in lfreu of actual expenses .incurred for nso’ls and lodging;. 8 flat per diem r&ate of iiqt ‘to’+xoeed twelve dollars ($12) provided there 1s. attached. to hls’ expense account when submittgd. a, ,“Pald” :blll’ gr receipt from a cMaIercla1 hotel, motel, or other commeFcla1 lodging qtablishment $or Ns lodglng,~ Qut ‘provided further that if .‘such receipt .is not submittrdr. the’ flat’ per. diem ,rate ahalL not exceed sevens dollars. ($7!. 1’., Artlcla.~k906. ‘Revladd Civil Statutea 61 !lkaa. 1925;. In Merchanta’.Red T19-11939 ,),. Merchants Red Bok Companjroonat%tuted’ a. ~dosiarc$al~ rtgency” br “oommerclal ; reportl~:ccredit.ogsnC~” rlthsn-fhe pul’irian of Article 7al; Revlegd Civil Statutes o?~Tali4~, 1925, which article provSded for t~xtis, upon groea. receipts off certa$n ,btislnessea therain named. In that.’case, lkwas held: V It Bppeari with reasonable ;cert&in- tg that ‘tlie’ierps .Um#cahtlle ggmcles’ and Vaommerclal.agencie6,‘~ bplng regarded ‘as ayn- ~onymt%a,. ‘have .?or a.. long time had .a def*nlte meat&i@.. ‘See 40 Corpus, Jurls,~, p; 636.. 1~ the case of Clty.of Bzbokf%eld v. Kltahen, 163 +a. 546, 63 6 .w. 825~, 826; the. ~Supreme-. Court Of Ml8SOtrr1, sp(rakir~&~OiQXmunerciql or mer- Mntile’~.a&ncles, ! sa$$:“~.l.Such agen~eles are defined. to: be. eatablllihments which make a busl- nesa of aoUecting’ lnformatlon~rq``tfng: to the ‘oredltl t2hrrae.t+ri -r&8#onslb.ilifji, and repu- totlon of’. meirchants for. $hij puCpoae ol furnish- 'irigthe lnformatlon to subsci%bera; -' e.g. ,Ri. Q.Dun & CQ~.~Agency; Bradstredt COmp&ny,.etc. Hon. Robert S. Calvert, page 3 (C-472 ) 5 Am. dc Eng. Enc. Law (let Ed.) p. 280; Web.,Int.Mct.’ *Corpus Jurl6 glvar the following deil- nltlon: ‘A cosuwrclal or mercantile agency may be defined aa a person, firm, or corpor- ation engaged In the business of collecting Information as to the flnaWla1 etandlng, ability, and credit of persons engaged In bualneemr and reporting the 8ame to subsarlb- era or customers applying and a I . . . f-emphaala by the Courg- therefo?.’ “TechnIcally .speaklng, It may be that the Legislature In the original enactment of Article 7061 had In mind just such agencies. We are lncllned to think,’ however, that the @eatIon should not be determined.solely from the fact that In one Instance the information furnished pertains to those engaged In busl- nesar while in the other It pertains only to curtomera or purchasers. It is altogether ‘probable that a corporation or lndlvldual could engafse ln the buslneaa of collecting at their own expense lnrormatlon concerning the credit rating of individual purqhasers and customer8 and sell thlr InSormatlon to.retall merohants, In the form of a red book or by repolrtr, or both, and build up a large and profitable en- terprlse. Sudh a buslneaa would then uridoubt- edly take on the character of a ~comerCIa1~ credit- report agencyr such am R.O. Dun & Co. and other ?mi s lar agencies undoubtedly are. Obviously, auqh agencies come under the statute. We think, however, the situation here is dlstlnatly dltferent. Thla enterprise 1s undoubtedly so related to the conduct oi' the business of retail merchants as to really be an indispensable part of same, or an lIftpoP tant Incident thereto. . Disregarding technical rules ot owner&h It may appro- priately be said that tN8 business Is owned to as large extent by the subscrlbers,a8 by the Chlltona. Ita oreatlon and existence haa been brought about by the cooperation of’ the merchant8 them&elves. We da not .thlnk th&t the fact that ‘the Qhlltona are. paid rather substantially for their servlcea makes this a fcommeraIall enterprise, In the senae of -2239- Honorable Robert S. Calvert, page 4 (C-472 ) being one organized and operated for profit to those who are it8 8010 promotem. It is. more properly epeaklng a cooperative enter- prise between the Merchante Association and those who act in the aapaclty of managers, and for thla reason we do not think the Legis- lature Intended to tax a business of thle kind.” In view of the foregoing, It Is our opinion that the phraee !‘commerclal hotel, motel, or other commercial lodging eatabllshrfient” refers to those persons, firma, corpora@lanis, aasoclatlone or establishmenta, engaged in the business of furalrhlng~.lodglng to the public generally Par pay, and .does not include military lnstallatlons of either the S&e or Federal Bovernment, nor does It Include educational 1s stltutlona or’eleemoeynery lnatltutlone of the State. In anewer to your first question you are therefore advised that when employeea o? the Adjutant Oeneral’s Depart- ment, while traveling on official buslnessr obtain lodging at the reapectlve military baeea , such employees are entitled to reoelve $7 per dlemfor t3avellng on State bualnees Inside t&e boundarlea of the State, rather then 412 per diem. In” . anawelr to your second question, you are advised that when State employees, while traveling on official business, obtain lodging at educational or eleemoaynary Instl~utlonr o? the St&e, such employees are &titled to receive $7 per diem for ~tzaveling inside the bounda&ee of the,, State on. State buel- need, rather than $12 per diem. SUMMARY The phraee “commercial hotel, motel, or other aonnnerclal lodging aatabllehment” ueed in subdivlalon a of SiWtlon 15 of ,, Article V of the Qeneral Approprlatlop Act of the 59th Legielature, Mtlatlng-t0 the ratee’of allowance for State employees traveling on State buainesa, refers to thoee persotie, fira$, corpOratlonar a88o- clatlona or eetabllahmente engaged In the budnese of f’urnlshlng lodging to the public generally for pays and doea not -2240- Honorable Robert S. Calvert, page 5. (C-472 ) Include military lnetallations of either the State or Federal government nor educa- tionsl or eleem0eynerJr inetltutions of the State. Yours very truly, WAQGONER CARR Attorney General John Reeves JR:& APPROVED: OPINIONCOMMITTER W. V. Geppert, Chalrman Pat Bailey Paul Phy Arthur Sandlin APPROVED FORTRE ATTORNEY GENERAL BY: Hawthorne Phillips -2241-