Untitled Texas Attorney General Opinion

The Attorney General of Texas
November 10, 1981
MARK WHITE
Attorney General
-w
Honorable Charles W. Evans. Chairman Opinion No. MW-388
Supreme Court Building
P. 0. Box 1254S
House Comlttee on Government
Austin. TX. 70711 Organization Re: Per diem to be received
512/4752501 P.O. Box 2910 by Board of Nurse Examiners
Telex 91ola74.1367 Austin, Texas 78769
Telecopier 5W475.0266
Dear Mr. Evans:
1607 MaIn St.. sune 1400
Dallas. TX. 75201 Article 4515, V.T.C.S.. applies to the Board of Nurse Examiners.
2141742-SS44 As amended by Senate Bill No. 575, it provides in part as follows:
4824 Alberta AM.. Suite 180 Each member of the board is entitled to a per
El Paso, TX. 79SO5 diem as set by legislative appropriatton for each
91- day that the member engages In the business of the
board. A member may not receive any compensation
for travel expenses. Including expenses for meals
1220 Dallas Am, Suile 202
Houston. TX. 77w2
and lodging, other than transportation expenses.
71zYaQa66 A member is entitled to compensation for
transportation expenses as provided by the General
Appropriations Act.
805 Broadway. Suite 312
Lubbock. TX. 79401
8061747.5238 Acts 1981, 67th Leg., ch. 772, at 2888. The current General
Appropriations Act, however. provides that the per diem for members of
the Board of Nurse Braminers shall be:
4309 N. Tenth. Suite 6
McAllen. TX. 78501
51218824547
actual expenses for meals and lodging plus an
additional $100 for each day the member Is engaged
in official business of the Board.
2-X Main Fbza, suire 400
San Antonio. TX. 78205 General Appropriations Act, Acts 1981. 67th Leg., ch. 875, art. I. at
5121225-4191
3460.
There is a conflict between article 4515, as amended, and this
appropriations act provision. You ask whether the former or the
latter controls.
We recently addressed a similar question raised by the Texas
Amusement Machine Commission. See Attorney General Opinion MW-365
(1981). The commission's inquiry stemmed from a similar conflict
between amended article 4413(41). V.T.C.S.. and the current
appropriations act provision which applies to the commission. We
Mr. Charles W. Evans - Page 2 (Mw-388)
there held that to the extent that article 4413(41) and the
appropriations act provision could not be reconciled, the former
controlled.
House Bill No. 957, also passed by the Sixty-seventh Legislature,
has been brought to our attention. It enacts article 6813f. V.T.C.S.,
which provides as follows:
Section 1. In this Act. 'state board or
cosmkssion' means a board, commission, committee.
council, or other similar agency In the state
government that is composed of two or more
membere.
Sec. 2. If a member of a state board or
commission Is entitled by law to per diem relating
to the member's service on the board or
commfssion, the amount of per diem is the amount
prescribed by the General Appropriations Act.
Sec. 3. Each law prescribing the amount of
per diem relating to membership on a state board
or ctission 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 bpard or
commission is entitled to claim per diem, the
limit is not suspended by this Act.
Acts 1981. 67th Leg., ch. 428, at 1840-41. Article 6813f became
effective on August 31.
Attorney General Opinion MW-365 did not consider article 6813f.
For the following reasons, however. we conclude that this new statute
dictates a different result than we reached in that opinion, and that
it also controls your question.
Article '6813f specifies that the per diem of an eligible state
board or commission member shall be the amount prescribed by the
General Appropriations Act. Sec. 2. It suspends each lav
prescribing the amount of a board or commission member's per diem to
the extent of conflict. Sec. 3. To determine its impact, we must
first ascertain the meaning of the term "per diem" as used therein.
We must then determine its effect upon statutes such as articles
4413(41) and 4515.
In the past, "per diem." at least as used in Texas statutes, has
denoted a fixed dally rate payment provided in lieu of, or in addition
D. 1318
Mr. Charles W. Evans - Page 3 (MU-388)
to, actual expenses such as those for meals and lodging. Actual
expenses, in other words, have not been regarded as part of one's per
diem. See, e.g.. V.T.C.S. art. 6823a; former article 4515. Were it
not for its explicit reference to the appropriations act, we would
conclude that article 6813f does not purport to redefine this term.
Article 6813f provides, however, that the amount of “per diem" to
which a board or commission member is entitled shall be the amount
prescribed in the appropriations act. And as we have noted, the
appropriations act provides that "per diem" consists of:
actual expenses for meals and lodging plus an
additional $100 for each day the member is engaged
in official business of the Board.
Acts 1981, 67th Leg., ch. 875. art. I. at 3460.
We believe the wording of article 6813f and this appropriations
act provision plainly reflects a legislative intent to adopt, for at
least the two year biennium, a more expansive definition of "per diem"
which embraces both actual expenses for meals and lodging and a flat
daily rate paymZX We believe it is clearly within the province of
the legislature to define "per diem" in these terms. Furthermore, we
perceive no constitutional or other barrier to its doing so In this
manner. Accordingly, we conclude that "per diem." as thus defined,
becomes controlling by virtue of general law represented by article
6813f.
The remaining question concerns the relationship between article
6813f and statutes such as articles 4413(41) and 4515. As a general
rule, statutes enacted during the same session of the legislature will
be harmonized so that all may stand together. Wright v. Broeter, 196
S.W.2d 82 (Tex. 1946); Martin v. Sheppard, 201 S.W.2d 810 (Tex. 1947).
Harmony cannot be achieved, however, where there is an absolute
repugnancy between or among ,the statutes in question. Wright v.
Broeter, supra; see also Jefferson County v. Board of County and
District Road Indebtedness, 182 S.W.2d 908 (Tex. 1944). Such
repugnancy obviously exists here: article 6813f expressly authorizes
reimbursement for expenses which statutes such as articles 4413(41)
and 4515 expressly forbid.
In any instance involving the construction of a statute, or of
several statutes. the dominant lnquirv must necessarilv be: what did
the legislature-intend? Jessen' Associates. Inc. v: Bullock, 531
S.W.Zd 593 (Tex. 1975); Calvert v. Texas Pipe Line Co., 517 S.W.2d 777
(Tex. 1974). In ascertaining legislative intent. one may consider the
history of the subject matter, the end to be attained, and the
purposes to be accomplished. Calvert v. Fort Worth National Bank. 356
S.W.2d 918 (Tex. 1962); Carroll v. Bullock, 530 S.W.2d 135 (Tex. Civ.
AUP. - Austin 1975. no writ). In our oninion. there can be no
question that article 6813f expresses the iegislature's intent with
regsrd to the subject of per diem. It appears certain. moreover, that
the precise reason for its enactment was to override conflicting
Mr. Charles W. Evans - Page 4 (MW-388)
provisions regarding per diem in statutes such as articles 4413(41)
and 4515.
It has been suggested that inasmuch as article 6813f is a
“general” statute and articles 4413(41) and 4515 are “special”
statutes, the latter must prevail, on the theory that special statutes
more accurately reflect the legislature’s intent. But this is not a
hard and fast rule. As the court observed in City of Lake Dallas v.
Lake Cities Municipal Utility Authority, 555 S.W.2d 163. 168 (Tex.
Cfv. App. - Fort Worth 1977. writ ref’d n.r.e.):
But it is well settled that provisions in a
general act will not control those in a local or
special act unless there is clear evidence of such
legislative Intent. (Citation omitted). In the
absence of clear evidence that the Legislature
intended the general law to control. the local or
special act is deemed the more accurate reflection
of legislative intent. (Emphasis added).
And as the court noted in International Fidelity Insurance Company v.
Sheriff of Dallas County, 476 S.W.2d 115. 118 (Tex. Civ. App. -
Beaumont 1972, writ ref’d n.r.e.) , a case in which counsel argued that
special statutes prevail over general sets:
Neither party cites to us some of the other rules
governing statutory construction; namely, that the
objective of the court, when called upon to
construe legislative enactments, is to ascertain
the purpose of the legislature in the enactment of
the laws relating to the particular matter; and.
the intention of the legislature is to be
ascertained from the language of the statutes and
to give effect to all laws bearing upon the same
subject....
See also E. Crawford, Construction of Statutes SSl67, 230 (1975).
As we have noted, the clear intent of article 6813f Is to
supercede conflicting provisions regarding per diem in statutes such
as articles 4413(41) and 4515. In light of this, it is apparent that
article 6813f not only should, but must prevail, to the extent of
conflict, over these statutes. To conclude otherwise is to render the
statute meaningless, and thus to ascribe to the legislature an intent
to ensct an ineffectual statute. “We should not interpret the
[statute] so as to convict the legislature of foolish and futile
action.” State ex rel. Childress v. School Trustees of Shelby County,
239 S.w.2d 777. 781 (Tex. 1951).
We therefore conclude that the Board of Nurse Examiners is
subject to the per diem provisions of the General Appropriations Act.
Mr..Charles W. Evans - Page 5 (MW-388)
SUMMARY
The Board of Nurse Examiners is subject to
the per diem provisions set forth in the General
Appropriations Act. Attorney General Opinion
MW-365 (1981) is modified to the extent that it
dictates a different result.
=,y
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICRARB E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Bill Campbell
Rick Gilpin
Jim Moellinger