Untitled Texas Attorney General Opinion ( 1957 )

THE ATTORNEY GENERAL
OF TEXAS ,~-‘,---- ---.. ,
Hon. Ben Ramsey Opinion No. WW-7
Lieutenant Governor of Texas
Re: Social Security partici-
Hon. Waggoner Carr, Speaker pation by Senators and
House of Representatives Representatives
Capitol Station
Austin, Texas
Dear Sirs:
Your letter requesting our opinion in reference to the
captioned matter reads as follows:
“The Texas Legislature authorized ‘State
Employees’, as defined in the Law, to participate
in Old page and Survivor~s Insurance (Social
Security). Specific reference is made to Section
lo, Subsection (c) of House Bill No. ,666, Acts of
the 54th Legislature, Regular Session, 1955, which
became effective September 6, 1955, and which provides
in part as follows:
“‘(c) The term “State Employee” in addition, to
its usual meaning shall include elective and appointive
officials of the State, but shall not include those per-
sons rendering services in positions, the compensation
for which is on a fee basis. . .’
“The Senators and Representatives are, no, .doubt,
‘elective officials of the State’. As elective officials,
they could be included for Social Security participation.
The question arises, however, as to their eligibility
for participation because of the method of their com-
pensation since ‘positions, the compensation for which
is on a fee basis’ are excluded. If they are not within
the exclusion, it is assumed that they must participate
in Social Security along with all other elective officials.”
Article III, Section 24 of the Texas Constitution provides,
in part, as follows:
“Members of the Legislature shall receive from
the public treasury a per diem of not exceeding Twenty
Hon. Ben Ramsey
Hon. Waggoner. Carr, page 2 (WW-7)
five ($25) Dollars per day for the first one hundred
twenty (120) days only of each session of the
Legislature.”
The Supreme Court of Tennessee in construing a similar
provision of the Tennessee Constitu,tion which provides for a per
diem of Four Dollars per day for members of the general assembly,
held that the term Uper diem” as used in Article II, Section 23
of the Tennessee Constitution is synonymous with “salary” and
stated that the term “salary” imports the idea of compensation
for personal service, and not the repayment of money expended in
the discharge of the duties of the office. Peay
7 S.W.Zd 815 (1928). The Court in McNair v. Allegheny County,
195 A. 118, 328 Pa. 3 held that “fees”, constitute payment for par-
ticular services performed, while “salaries” constitute fixed
compensation for continuous services over a period of time.
The Texas Supreme Court in the case of Wichita County
v. Robinson, 276 S.W.Zd 509 (1954) held that fees are compensa-
tion for particular services rendered at an irregular period, payable
at the time the services are rendered.
Based upon the above authorities, it is clear to us that
Section 24 of Article III of our Constitution does not provide that
members of the Legislature shall be compensated on a fee basis.
It is our further opinion that members of the Legislature are
elective officials of the State and are “State employees” as that
term is defined in Subsection (c) of House Bill No. 666, Acts of
the 54th Legislature.
SUMMARY
Section 24 of Article III of our Constitution does
not provide that members of the Legislature
shall be compensated on a fee basis. Members
of the Legislature are elective officials of the
State and are “State employees” as that term
1s defined in Subsection-(cj of House Bill No.
666, Acts of the 54th, Legislature.
Yours very truly,
APPROVED: WILL WILSON
Attorney General of Texas
Opinion Committee
H. Grady Chandler
Chairman
WVG:cs