July   11, 1967


Hon. Milton J. Schlller, Chairman               Opinion   No. M-104
Contingent Expense Committee
House of Representatives                        Re:   Telephone charges of
Austin, Texas                                         members of the House
                                                      of Representatives.
Dear Mr. Schlller:
             Your request    for an opinion   reads   as follows:
           "House Simple Resolution No, 448 by Wayne,
     a copy of which Is attached, was passed during
     the Regular Session of the Sixtieth  Legislature.
            'For many years, long distance telephone
      charges have been authorized and paid for from
      the Contingent Fund of the House of Representa-
      tives for the Individual Members of the House
      and charged to their respective   contingent
      accounts.
            'Pursuant to the provisions  contained on
      Page 7 concerning telephone service,    an official
      opinion Is respectfully  requested as follows:
            'Is It legal for the State of Texas to pay
      for the monthly telephone charges of a business
      telephone,  located In the House Member's district,
      to be used for official   state business, with such
      charges posted to the Individual   Member's contln-
      gent expense account?
             "We will appreciate  your official   opinion       on
      this   matter at your earliest  convenience."
           In Terre11 vs. King, 118 Tex. 237, 14 S.W.2d 786 (1929),
It was held that a Resolution was an appropriate  and constitutional

                                     -471-
Hon. Milton   J. Schlller,   page 2 (M-104)


method to direct the expenditure of a portion of appropriation    for
the expenses of members of the Legislature  between aesslons.   In
that case, the Court upheld a portion of the Resolution   whereby
members of an interim committee would receive certain expenses ln-
curred In the conduct of the committee’s duties.   The Court stated:
            “It Is manifest that certain expenditures
     must be made by the state, In the way of leglsla-
     tlve expenses, or the grant of legislative     power
     could never be effectually     exercised.  No one would
     question legislative    disbursements for comfortable
     assembly halls and commlttee rooms, or for clerks,
     stationery,   etc.   Within the same category of
     legitimate   expenses of the Leglslature   or of either
     house comes reimbursement to members for actual
     expenses reasonably Incurred In order to perform
     duties devolving on duly authorized committees of
     the Legislature,    or of either house, when such
     committee members are called to other points than
     the capital,   or when called to the capital other-
     wise than during the sessions of the Legislature.’
     14 S.W.W 792.
           It Is noted that at the time Terre11 v. King, supra, was
decided, Section 24 of Article  III did not provide for an annual
salary, but merely a per diem during the time that the Legislature
was in session,  and therefore performance of official  duties wag not
on an annual basis except for such Interim committee work as was
assigned to Interim committees created by the Legislature.     In 1960,
Section 24 of Article  III of the Constitution of Texas was amended
30 as it now reads as follows:

           “Members of the Legislature   shall receive
     from the Public Treasury an annual salary of not
     exceeding Four Thousand, Eight Hundred Dollars
     ($4,800) per year and a per diem of not exceeding
     Twelve Dollars ($12 per day for the first      one
     hundred and twenty t 120) days only of each Regular
     Session and for thirty (30) days of each Special
     Session of the Legislature.     No Regular Session
     shall be of longer duration than one hundred and
     forty (140) days.
          “In addition to the per diem the Members of
     each House shall be entitled  to mileage In going
     to and returning from the seat of government,
     which mileage shall not exceed Two Dollars and

                             -472-
Hon. Milton   J. Schlller,   page 3 (M-104 1


     Fifty Cents ($2.50) for every twenty-five     (25)
     miles, the distance to be computed by the nearest
     and most direct route of travel,   from a table of
     distances  prepared by the Comptroller   to each
     county seat now or hereafter   to be established;  no
     Member to be entitled  to mileage for any extra
     Session that may be called within one (1) day after
     the adjournment of the Regular or Called Session."
            It Is noted that the foregoing    constltutlonal    amendment
now provides In addition to per diem and traveling         expenses an
annual salary for members of the Legislature,       thus recognizing   that
official   duties of members of the Legislature     are performed through-
out the year and are not limited to duties performed while the Legls-
lature Is In session.     Therefore,  In determining what expense3 are
allowed to be paid out of the Contingent Expense Appropriation         for
members of the House of Representatives,      It Is necessary to examine
the provisions    of House Simple Resolution   No. 448 of the Regular
Session of the 60th Legislature.      The provisions     of House Simple
Resolution    No. 448 applicable  to your question read as follows:

            "RESOLVED,That the Contingent Expense Com-
      mittee Is hereby authorized and directed       to credit
      each Representative     an amount as determined by the
      Committee on House Administration       not to exceed
      $200 a month during any period the Legislature         Is
      not In sesslon.     This amount Is authorized to pay
      for the employment of a private secretary        and for
      expenditures    for stationery,   supplies,  postage,
      telephone tolls,    telegraph tolls,    answering service,
      and rental of electric     typewriters   and transcribing
      equipment.     Expenditures authorized hereunder shall
      be paid out of the Legislative       Expense Fled of the
      60th Legislature    or any other funds appropriated for
      the use of the House of Representatives;        . . .
             I,
               . . .
             "RESOLVED,That the Contingent Expense Com-
      mittee Is hereby authorized to pay for telephone
      service and office    supplies ?'or use of tne House
      &ring any period the Legislature       1s not in session,
      same to be paid from the Legislative      Expense Fund of
      the 60th Legislature     or any other funds appropriated
      for the use of the House of Representatlves       on vcuchers
      approved by the chairman of the Contingent Expense Com-
      mittee and the Speaker and In accordance with regula-
      tions governing such expenditures      +pprc.ved by the
      Speaker; . . . .       (Emphasis added)
                           -473-
Hon. Milton   J. Schlller,   page 4 (M-104)


            In view of the foregoing    provlslons,    you are advised that
It Is legal for the State of Texas to pay telephone tolls and tele-
phone services    Incurred In the performance of official      duties by
members of the House of Representatives       regardless   of where the
telephone Is located.      Whether the particular     bill for telephone
service and/or telephone tolls     submitted by members of the House
of Representatives    to the Contingent Expense Committee Is Incurred
In connection   with the official   duties of members of the House of
Representatives    Is within the determination      of the Contingent Ex-
pense Committee.
                         SUMMARY
            A Resolution   Is an appropriate    and constitutional
     method to direct expenditure       of a portion of appro-
     priation   In financing    expenses Incurred by members of
     the Legislature     In the conduct of their official       busl-
     ness while the Legislature       Is not In session.     House
     Simple Resolution No. 448 of the Regular Session of the
     60th Legislature     authorizes   the payment of telephone
     tolls and telephone service Incurred by members of the
     House of Representatives       In connection with their of-
     ficial   duties.




Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chalrman
Kerns Taylor, Co-Chairman
J. H. Broadhurst
V. F. Taylor
Neil Wllllams
Ralph Rash
STAFF LEGALASSISTANT
A. J. Carubbl, Jr.


                                   -474-