Untitled Texas Attorney General Opinion ( 1961 )

E ORNEY GENE OF EXAS Honorable James M, Cotten Chairman, Committee on Appropriations House of Representatives Austin, Texas Opinion No. W-1046 Re: Whether any members of the Legislature are entitled to a portion of the annual sala- ry for the period from the effective date of Section 24 of Article III of the Texas Constitution to the convening of the 57th Legislature, and Mr. Cotten: related questions. You have requested an opinion on the following questions: "1, Are any members of the Legislature entitled to a portion of the annual salary for the period from the effective date of the amend- ment to the convening of the 57th Legislature? “2. If the answer to the first question above is in the affirmative, is enabling legis- lation necessary to provide for these salaries, or will an appropriation for these salaries in the general appropriation bill of the 57th session be sufficient? “3. If the answer to the first question is in the affirmative, which members of the Legls- lature are entitled to the salary payment, the hold-over members whose terms of office expired, under the Constitution, at the date of the elec- tfon of their successor but who under the pro- visions of the Constftution held over in office until their successors qualified, or the members newly elected In the the November 1960 election? I. Honorable James M. Cotten, page 2 (``-1046) "4, If the answer to question (3) is the newly elected members, is it necessary that they have qualiffed fop office by taking the constitutional oath during the period from the effectfve date of the amendment to the convening of the 57th Legislature?" Section 24 of Artfcle III of the Constitution of Texas, as amended at the General Election held on November 8th, 1960, provides as follows: "Members of the Legislature shall receive from the Public Treasury an annual salary of not exceedin Four Thousand, E ight Hundred Dollars ($4,8 0O)'per year and a per diem of not exceeding Twelve Dollars ($12 per day for the first one hundred and twenty 1120) days only of each Regular Session and for thirty (30) days of each Special Sessfon of the Legislature. No Regular Sessfon shall be of longer duration than one hundred and forty (140) days. "In addftion to the per diem the Members of each House shall be entftled to mileage in going to and returning from the seat of govern- ment, which mile% e shall not exceed Two Dollars and Fifty Cents ($2,5O) for every twenty-five (25) miles, the distance to be computed hy the nearest and most direct route of travel, from a table af dfstances prepared by the Comptroller to each county seat now or hereafter to be established; no Member to be entftled to mileage for an extra Sessfon that may be called within one (1"Iday after the adjournment of the Regular or Called Session." (Emphasis added). It is noted that the underlIned portion of the above- quoted constitutional amendment makes it mandatory that members of the Legislature receive an annual salary. There- fore, in answer to your first question, you are advised that members of the Legislature are entitled to an annual salary beginning at the effectfve date of the amendment (November 25, 1960, the date of the canvassing of the returns of the General Electfon held on November 8, 1960). We assume by your second question that you desire to know whether the provisions of Section 24 of Article III, Honorable James M. Cotten, page 3 (``-1046) as amended, constitute pre-exfstfng law, authorizing the Legfslature to make an appropriation for the payment of the annual salary provfded therein. Since the constitu- tional amendment speciffcally states that members of the Legfslature shall recefve from the public treasury an annual salary of not exceeding $4,800 per year, you are advised that such language constitutes pre-existfng law authorizing an appropriation by the 57th Legislature for the payment of such annual salary. An answer to your thfrd and fourth questions depends on the date that an indfvfdual qualified as a member of the Legfslature, In other words, ff an indfvldual member of the 57th Legfslature qualffied prior to canvassfn of the returns of the electfon held on November 8th, 1980, he would be entftled to the compensation provfded fn Section 24 of Article III, as amended, until hfs successor quali- fies for office. On the other hand, if an fndividual member did not qualffy untfl some date subsequent to the canvass- ing of the returns of the General Electfon held on November 8th, 1960, h%s predecessor in office would be entftled to the compensatfon provided for fn Sectfon 24 of Article III of the Constftutfon of Texas, as amended, until such time as the successor of such fndfvfdual had qualiffed. You are, therefor,e#advfsed Sn answer to questions Nos. 3 and 4# a newly eleoted member of the Legfslature who d%d not qualffy until the convenfng of the 57th Legislature would not be entftled to the constftutfonal salary prior to the date of h%s qualfffcation, but the hold-over member whom the newly elected member succeeded would be entitled to the constitutional salary prior to the date his successor quali- fied, Summarizing OUP holding herefn, you are advised that members of the Legfslature are entitled to the constitutional salary, per d%em and expenses provfded therein, from the ef- fective date of the amendment adopted at the electfon held on November oth, 1960 (to-wft: November 25, 1960, the date of the canvassing of the returns). Newly elected members are entftled to the constftutfonal salary when they qualify for office and may not receive the constitutional salary for any oeriod of time pr%or to the date they qualify for offfce. Sold-over members are entftled to the constitu- tional salary from the date of the canvassfng of the returns Honorable James M. Cotten, page 4 (``-1046) of the General Electfonheld on Novembers8,.1960. .MembOrs of .theLegislaturewho were not re-elected to oriloe will receive the constitutionalSalary from the date of the canvaasln of the returns of the General Eleotlon of November 8th, 1960, to the date that the newly elected member qualifies for office, SUMNARY Seotion 24 of Article III of the Constitu- tion of Texas, as amended at the General Election held November 8th, 196C,,oonstl- tutee pre-existinglaw, authorizingthe Legislatureto appropriatemoney for the purpose of payfng the compensationand expenses provided therein to qualified members and it Is not necessary that any enabling legislationother than an ap- propriationbe enacted, Yours very truly, WILL WILSON Attorney General of Texas John Reeves Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Henry G.'B+aSwell C. Dean Davis Edward A. Cazares REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore