Untitled Texas Attorney General Opinion ( 1988 )

September 16, 1988
Mr. Vernon M. Arrell Opinion No. JM-954
Commissioner
Texas Rehabilitation Commission Re: Per diem for members
118 E. Riverside Drive of the Board of Texas Re-
Austin, Texas 78704-9982 habilitation Commission
and its subordinate com-
ponents (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.11
Article 6813f, which was originally enacted in 1981,
provides:
Sec. 1. In this Act, "state board or
commission11 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
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Mr. Vernon M. Arrell - Page 2 (JM-954)
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 aener llv Attorney General Opinions JR-888 (1988);
JR-426 (19t6) ; 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) com-
pensatory 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 particu-
lar 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 § 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
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Mr. Vernon M. Arrell - Page 3 (JM-954)
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.
Act6 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.
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Mr. Vernon M. Arrell - Page 4 (m-954)
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
1958, 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 Deg., ch. 40, 5 5(b), at 105; Acts 1971, 62d
Leg., ch. 405, 5 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 * whether members of the
Governor's Committee for Dis%ed 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 11-3:
APWINTED committee members shall serve
without pay, but shall be entitled to actual
and necessary expenses incurred in perform-
ance of COMMITTEE business, such business to
include attendance at Committee meetings,
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Mr. Vernon M. Arrell - Page 5 (JR-954)
telephone calls to conduct Committee busi-
ness, and attendance at functions to offi-
cially 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 issu-
ing a proclamation. T.errell Wells Swimmina Pool V.
Rodriw 182 S.W.2d 824, 827 (Tex. Civ. App. - San Antonio
1944, wri.4 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 Commit-
tee for Disabled Persons are therefore entitled to reim-
bursement 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 independ-
ent living services for the disabled must set up a State
Independent Living Council. 29 U.S.C. § 796d(a)(l). See
aenerallv 29 U.S.C. §§ 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)(l) is responsible for appointing the members of the
council. We assume that the Rehabilitation Commission is
the agency designated in section 796d(a)(l). See Hum. Res.
Code 65 111.051, 111.053; 40 T.A.C.' § 101.1; ch. 107 (inde-
pendent 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 aenerally Hum. Res. Code g 111.053 (commission may adopt
methods of administration found necessary by federal govern-
ment); 5 111.054 (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. &S Attorney General Opinion JM-382 (1985).
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Mr. Vernon M. Arrell - Page 6 (JM-954)
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 5 113.001. 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 State-
wide 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, 5 1. (per diem provisions of article 6813f not
applicable to committees in the legislative branch). There-
fore, 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 member-
ship of which is appointed by the Commission-
. This Committee is a group of medical
Ezactitioners 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 "con-
tract 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
p- 4834
Mr. Vernon M. Arrell - Page 7 (JM-954)
provisions of Chapter 111 of the Human Resources Code.
Those provisions and your reference to the Professional
Services Procurement Act suggest that the 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 appropria-
tions 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
MARYEELLBR
First Assistant Attorney General
LQU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
C
Assistant Attorney General
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