Can a member of a Texas county housing authority board keep the frequent flier miles earned on trips the authority paid for?

Texas AG Opinion JM-1204: Can a Housing Authority Commissioner Keep Frequent Flier Miles From Authority Travel?

Plain-English summary

The Cameron County Attorney asked whether commissioners of the Cameron County Housing Authority, who serve without compensation, could personally keep and use airline mileage credits earned on trips the authority had paid for. Chapter 392 of the Local Government Code entitles housing authority commissioners to reimbursement for necessary travel expenses but expressly denies them any compensation.

The Attorney General concluded that because mileage credits are earned using public money paid for authority travel, a commissioner personally collecting and keeping those credits would amount to uncompensated commissioners receiving compensation in violation of the statute, drawing on a 1976 Texas appellate decision that had struck down a flat monthly travel allowance for the same reason. The opinion also concluded the authority, not any individual commissioner, bears the responsibility for arranging with airlines or travel agencies to capture mileage credits for the authority's own use, that the authority may require commissioners to account for their mileage credit statements, and that the authority may sell mileage credits earned from its own travel as personal property under section 392.056(c) of the Local Government Code.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1990)

Housing authority commissioners: The opinion concluded that because chapter 392 of the Local Government Code denies commissioners any compensation, a commissioner could not personally collect or use airline mileage credits earned on trips the authority paid for; doing so would function as unauthorized compensation.

County housing authorities: The opinion placed responsibility on the authority itself, not individual commissioners, to arrange with airlines or travel agencies to have mileage credits assigned to the authority for its own future use, and confirmed the authority could require commissioners to supply copies of mileage credit statements and could sell accrued mileage credits as the authority's personal property.

Common questions

Can a Texas housing authority commissioner keep frequent flier miles from trips the authority paid for?
No, according to the opinion. Because chapter 392 of the Local Government Code denies housing authority commissioners any compensation, the Attorney General concluded a commissioner personally using mileage credits earned on authority-funded travel would amount to receiving compensation the statute forbids.

Whose job is it to make sure the mileage credits go to the authority instead of the individual commissioner?
The opinion placed that responsibility on the housing authority itself, concluding it is the authority's job, not any individual commissioner's, to set up an accounting arrangement with the relevant airline or travel agency so mileage credits are captured for the authority's future use.

Can the housing authority require commissioners to report their mileage credit statements?
Yes. The opinion concluded that just as any employer can require officers and employees to account for the employer's property in their possession, a housing authority can require its commissioners to account for authority property, including mileage credit statements, in their possession.

Can the housing authority sell mileage credits it accumulates?
Yes, according to the opinion. Citing section 392.056(c) of the Local Government Code, which allows a housing authority to sell its personal property, the opinion concluded the authority could sell mileage credits earned from authority-funded travel, subject to the constitutional requirement that it receive adequate consideration under article III, section 52 of the Texas Constitution.

Background and statutory framework

Chapter 392 of the Local Government Code governs county housing authorities but does not directly address airline mileage credits. Section 392.035 denies housing authority commissioners any compensation but entitles them to reimbursement for necessary travel expenses. The opinion relied on Housing Authority of Harlingen v. State ex rel. Velasquez, a 1976 Corpus Christi Court of Civil Appeals decision that struck down a flat $50 monthly travel allowance to commissioners because travel-expense payments come from public money, and the portion of that allowance exceeding actual travel expenses functioned as prohibited compensation. The opinion extended that reasoning to mileage credits: since the credits are generated by public money spent on authority travel, a commissioner personally keeping and using them would effectively receive compensation the statute does not allow.

The opinion distinguished this from a scenario where mileage credits simply could not be captured for the authority's own use, noting that if the credits could not be used for public purposes, an individual commissioner's use of them would not constitute compensation, though it added that a court likely would not find a Penal Code violation absent an accounting arrangement the authority had failed to establish, citing State Ethics Advisory Opinion 1984-6 (1984). On the authority's power to sell accumulated mileage credits, the opinion applied section 392.056(c)'s general grant of authority to sell personal property, subject to the constitutional requirement in article III, section 52 that the authority receive adequate consideration in exchange.

Citations

Statutes:

• Tex. Local Gov't Code § 392.035 (housing authority commissioners: no compensation, travel expense reimbursement only)
• Tex. Local Gov't Code § 392.056(c) (authority may sell its personal property)
• Tex. Const. art. III, § 52 (adequate consideration required for sale of public property)

Cases:

• Housing Auth. of Harlingen v. State ex rel. Velasquez, 539 S.W.2d 911 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1204
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1204.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

JIM MATTOX
ATTORNEY GENERAL

August 8, 1990

Honorable Benjamin Euresti, Jr.
Cameron County Attorney
Cameron County Courthouse
974 E. Harrison Street
Brownsville, Texas 78520

Opinion No. JM-1204

Re: Whether an uncompensated commissioner of a county housing authority may receive mileage credits attributable to authority travel (RQ-1979)

Dear Mr. Euresti:

You ask four questions regarding the use of airline mileage credits accrued by commissioners¹ of the Cameron County Housing Authority (hereinafter the authority). The credits are attributable to travel on behalf of and paid for by the authority.

You first ask whether a commissioner may use such credits for his personal use. Chapter 392 of the Local Government Code governs county housing authorities but contains no provisions directly relevant to your inquiry. However, section 392.035 denies commissioners any compensation but entitles them to receive reimbursement for necessary travel expenses. That provision, prior to its codification in the Local Government Code, was strictly construed to disallow payment of a monthly travel allowance. Housing Auth. of Harlingen v. State ex rel. Velasquez, 539 S.W.2d 911 (Tex. Civ. App. - Corpus Christi 1976, writ ref'd n.r.e.). The court emphasized the fact that travel expense payments are made from public money and determined that the part of the $50 travel allowance over the amount of actual travel expenses represented compensation in violation of the statute. By extension, that opinion disallows a commissioner from personally collecting the compensation represented by airline mileage credits. Of course, if the mileage credits could not be used for public purposes, use of them by a housing authority commissioner would not constitute compensation.

Also, we note that it is the responsibility of the authority, not any individual commissioner, to establish an accounting system with the airlines or travel agency to provide for the authority to receive the travel credits for future use by the authority. Absent such an arrangement, we do not think that a court would find a violation of the Penal Code. See generally State Ethics Advisory Opinion 1984-6 (1984).

Second, you ask whether the use of the mileage credits should be limited to travel on behalf of the authority. If the authority can not arrange to have mileage discounts assigned to the credit of the authority, per se, then the credits assigned to individual commissioners should be used for authority travel.

In your third question, you ask whether the housing authority may request copies of mileage credit statements from individuals. In the same manner that any employer may require its officers and employees to account for property belonging to the employer and in the possession of its employees, a housing authority may require its officers and employees to account for its property that is in the possession of its officers. See also Housing Auth. of Harlingen, supra at 916.

Finally, you ask whether the authority may sell mileage credits to the individuals involved. Section 392.056(c) of the Local Government Code allows a housing authority to sell its personal property. Thus, we believe that the authority is authorized to sell mileage credits earned as a result of authority travel, subject, of course, to constitutional requirements that it receive an adequate quid pro quo. Tex. Const. art. III, § 52.

SUMMARY

A commissioner of a county housing authority is not entitled to compensation. Therefore, he may not receive airline mileage credits earned on the basis of authority travel. A county housing authority may require that individuals supply copies of mileage credit statements, where the credits are accrued from travel on behalf of the authority. A county housing authority may sell its personal property, including airline mileage credits.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General