Hon. Robert S.       Calvert                   Opinion     No. M- 963
Comptroller    of    Public Accounts
State Finance       Building                   Re:      Traveling  expenses
Austin,   Texas     78711                               pursuant to the cur-
                                                        rent General Appro-
Dear Mr. Calvert:                                       priation  Act.

             You have requested        our   opinion     on the    following
questions:

                    “Are the following         types of expenses
      considtied     ‘incidental       expenses’    regardless     of
      the amount of each, so as to place them within
      the $35.00 per diem allowance             when they arise
      in connection      with an authorized         business   trip:
             1.   Public     Stenographer
             2.   Registration        Fees
                  Telephone      Bills
             ::
                  ~~:~~~a!~e~i:~:         State Documents
             z:   Money Order Fees
             7.   Parking Fees for Rented Cars,
                  State owned Cars,~~or Federally
                  owned Cars
             8.   Hangars for Rented Airplanes
             9.   Tips or Handling Fees for State-
                  Owned Equipment.
      In the event that you hold that any of the above
      listed    expenses     are not included       in ‘incidental
      expenses’,     what is the authority          for making the
      reimbursement       for such expenses and would they
      be a charge against         the travel     appropriation?”

             (2) “Does inclusion   of the term, ‘inciden-
      tal expenses’,    under the per diem,provision
      contravene    the provisions   in Article 6823a R.C.S.,
      Section   3?”

             (3)“Under     the provisions       of     Senate   Bill   No.




                                 -4711-
Hon. Robert     S. Calvert,     page    2             (M-963)



     11, Acts of the Regular Session             of the Sixty-
     second Legislature,     Article     V,     Section  15,
     under what circumstances        could      persons  travel-
     ing under this provision        claim      reimbursement
     for parking,   medical,   laundry,         and similar
     expenses. ”

            In connection       with the foregoing       you refer      to
Attorney   General’s      Opinions    O-1253 (1939),      O-6310 (1944),
M-301 (1968) and M-939 (1971).              In Attorney    General’s
Opinion O-1253 it was held that a State employee could
not receive     hospitalization       expenses    as travel      expense
for the reason that during the period               of confinement        in
a hospital     the employee was not being engaged in the active
discharge    of his duties.         In Attorney     General’s     Opinion
O-6310 it was held that expenses             of personal      luggage were
not reimbursable.         In Attorney     General’s    Opinion M-301 it
was held that charges         required    to be ~paid by a District
Judge traveling      to and attending        the National       College    of
State Trial Judges including           a required     parking permit
and certain     rental    and laundry charges constitute             “incident-
al expensestl incurred        and are authorized        to be reimbursed.
In Attorney     General’s     Opinion M-939 it was held that “in-
cidental   expenses”      includes    necessary     expenses     incidentally
incurred   by a State employee traveling             on State business.
We find nothing       in our Opinion numbers O-1253 and O-6310
which is inconsistent         with the conclusions        reached herein-
after.

            In view of the foregoing,          it is our opinion    that
incidental     expenses may include        those items listed    in your
first   question    since each of those items may be an expense
that is necessary        to be incurred     by the employee in the
performance     of official     duties   while on travel    status.     It
is to be noted, however,        that in numerous instances       items 1
through 6 listed       in your request      may be paid as operating
expense of the office        rather    than traveling   expense of the
employee.

            Section  13 of Article    V of the current             General
Appropriation     Act provides,    in part:

            “Each employee traveling     on state business
       outside   of the boundaries   of the State of Texas
       shall receive   reimbursement   for the actual   cost



                                   -4712-
Hon. Robert     S. Calvert,      page     3              (M-963)



      of meals,   lodging    and incidental     expenses,
      not to exceed thirty-five         dollars   ($35 00)
      per day.    When both in-state        and out-of-
      state travel     occur in the ~same calendar       day,
      the rate of travel       allowance    for all travel
      in that day shall be in an amount not to ex-
      ceed thirty-five      dollars    ($35.00)  per day.”
      (Emphasis added)

             It is our opinion      that the first       six items listed
in your question       No. 1 should not be included          in the $35.00
limit.     Such items should properly          be reimbursed     as an
operating     expense of the office        rather    than travel   expense
of the employee.         Items 7, 8, and 9 are included          in the
$35.00 limit      as incidental     travel    expenses.     See also Attor-
ney General’s      Opinion No. o-6310,        supra.    With specific
reference     to the item of “handling         fees” for state-owned
equipment,     this?   like “official      baggage” may in certain
instances     be reimbursed     as an operating       expense of the
office    rather   than included      in the $35.00 limit       as inci-
dental travel      expense.

           Section     3 of    Article        6823a provides:

            “a.   Reimbursement from funds appropriated
      by the Legislature         for traveling       and other neces-
      sary expenses       incurred     by the various      officials,
      heads of state agencies;            and employees of the
      state in the active          discharge    of their    duties
      shall be on the basis of either               a per diem or
      actual    expense as specifically           fixed and appro-
      priated    by the Legislature          in General Appropri-
      ation Acts.       A per diem allowance          shall mean
      a flat    daily rate payment in lieu of actual
      expenses     incurred    for meals and lodging          and as
      such shall      be legally      construed     as additional
      compensation      for official       travel    purposes     only.

           “b . The rate of per diem and transportation
      allowance  and method of computing those rates
      shall be those set forth  in General Appropria-
      tion Acts providing  for the expenses  of the
      state government from year to year.”

           It   is   noted    that    Section     3 specifically   states   that



                                     -4713-
Hon. Robert     S. Calvert,     page   4           (M-963)



the rate of per diem and transportation             allowance    shall   be
those set forth     in the General Appropriation          Acts.    There -
fore the inclusion        of incidental   expenses     in per diem and
transportational       allowances    are authorized     by Section     3 of
Article   6823a, the preexisting        law for the payment of such
traveling    expenses.

           In answer to your third question      you are advised
that such traveling     expenses are payable when incurred     as
a reasonable    expense in connection     with the performance   of
official   duties  while on travel    status.

                                SUMMARY

            Incidental    expenses  in connection   with
      travel    by State employees are those expenses
      reasonably     necessary   to performance   of official
      duties    while the employee,,>?    on travel  status.




Prepared    by John Reeves
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,      Chairman
W. E. Allen,      Co-Chairman

W. 0. Shultz
John Grace
Rex White
Glenn Brown

SAM MCDANIEL
Acting Staff Legal      Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant
                                 -4714-
