Hon. Ceo. Ii. shf3ppard              oplnlon Ho. 01157l
Co;;~~~yr     oi Public              Re: Traveling expense8 of (a)
                                           district   judges and dlr-
Austin,   Texas                            trict attorneyr,   (b) or
                                           state employee8 protided
                                           for in the departmental ap-
                                           pro rlatlon of the Forty-
                                           81x! h Legidature.
Dear Sir:
          We have your letter of October 9, 1939, wherdin
you ask several questlons, which we will quote and disCus
in their order.
            Your flrgt    question    is as idliOW8:
           "lio&e Elll 257, the General 4ppropriatlon
      Bill for the J'udlclary, passed by the Forty-
      sixth Legislature,   carries the follwd&ng rid&r:
            @iill2es8 otherwise rpeclflcaJ.ly  provided
            by the 8tatIlte8, it is provided that any
            officer    or employee who travolr  on ofil-
            cial State business and who use8 his CM
            car while 80 doing shall bo rebbtl+8ed for
            the u8e of 8ald car on the barir of the
            total   mileage traveled  during any calen-
            dar month at the lollowIng rater Five
            Cent8 (9) a mlle ror the first thou8and
            miles traveled, four cents <k#) a mlle
            for the second thousand mlle8 traveled,
            tku@ee cents (3) a mile for the third
            thousand miles traveled and two cents (24)
            a mL1e for each ndle traveled in excess
            of three thousand alles.'
            "Doe8 this rider offset or limit the et
      penaes of District   Sudges and DistPict AttOFney8
      provided f’or in Article 6820, R.C.S.?U
          Artlole 6820, of the Revised Civil           Statutea,   to
which you refer, reads as fO~oW81
           "All di8tri.C.t judges and dirtrict attor-
      neys when engaged In the discharge of their
KOIl. George   H. Sheppard, Page 2

     official  duties in any county In this State
     other than the county of their residence, shall
     be allwed their actual and necessary expense8
     while actually engaged in the discharge of such
     duties, not to exceed four dollars per day for
     hotel bills,    and not to exceed iour cents a
     alla when traveling by railroad,        and not to ex-
     ceed twenty cents a mile when traveling by pri-
     vate conveyance, In going to and returning f?om
     the place where such duties are discharged,
     traveling by the nearest practical        route.   Such
     offlclers    shall also receive the actual end
     necessary postage, telegraph and telephone ex-
     penses incurred by then in the actual discharge
     of their duties.      Such expenses shall te paid
     by the State upon the sworn and Itemized ac-
     count of each district     judge or attorney entitl-
     ed thereto, showing such expenses.         In districts
     containing more than one county, such expenses
     shall never exceed ln any one year $19C,CC for
     each county In the district;      provided that no
     district   judge or attorney shall recelre mre
     than 4690.00 in any one year under the ::rovislons
     of this article.      The account for said services
     shall be recorded in the official        minutes of the
     district   court of the comty In vhlch such judge
     or attorney resides,     respectively.”
           You are advised that It Is our opinion that this
article  is an Illustration    of an instance wherein it Is
“otheruise specifically     provided by the statutes”,  and there-
fore, that the riCer which you quote, by Its owr terms, do88
not relate to thz expenses of district      judges and district
attorneys provided for In Article 6820, Revised Civil Statutes,
1925.
           Your second question is as foU.oVsr
           II      I should also like you to advise
      whethe; i &ildr     rl<er under the Departmental
      Appropriation Bill,    S.B. 427, aegular %esslon
      of the Forty-six&h Legislature,    limits a depart-
      ncrt fro3 paring a lesser amount than 5# per
      mile for the first thousand miles during any cal-
      endar month If the employee actually expends 5e
      for such travel.    In other words, is it mandatory
      that the department pay th= employee ;i full 5# a
      mile for the first thousand miles traveled if the
      employee has actually expended that much money?”
Hon. Gee. H. Sheppard, Page 3

              The ap licable portion of the rider appended to
Senate Bill    No. 21:7, to which you refer, Is as fOuW8:
            Wnless otherwise speclflcally    provldsd
     by the statutes,  It Is provided that any offl-
     car or employee who travel8 on official    state
     buSines8 and who uses his ~.+n car while so do-
     ing, shat be reimbursed for the use of said
     car on the basis of the total ailegge traveled
     during any calendar month at the fol&Mng rates;
     five cents a mile for the first thousand miles
     traveled,  four cents a mile for the second thou-
     sand mlles traveled, and three cents a mile for
     the third thousand miles traveled, and two cents
     a mile for each mile traveled in excess of ,three
     thousand miles. . . ”
             Attention Is directed to the fgct that this rider
 uses the word ~lshall”.   “Shall’!, when found In a legislative
 enactment relating to the duties of ;lubllc officers    or em-
 ployees, Is ordlnarlly regarded as having been used by the
 Legislature   In the mandatory sense, unless the context com-
 pels or suggests a contrary construction.     We find nothing
 to suggest that the word rrshall~‘, in this rider, was not used
 by the Legislature ln the mandatory sense, and we, therefore,
 answer your second question In the afflrzative.
              Your third question   Is as follows:
            “Does the General Statute, Article 6823
      supersede and override the i4Llmltatlon of I&
      eage RldeP in the Departmental Appropriation
      BillTn
           Article 6823, Xevlsed Civil Statutes, 1925,.as
 amended by the Acts of 1931, sorty-second Legislature,   page
 372, Chapter 218, Be&ion 1, reads as followsr
            “The traveling and other necessary expenses
      incurred by the various officers,      assistants, de-
      puties, clerks and other employee8 in the various
      departments    institutions    boards, cozrmlssions,
      or other sugdlvisions of the State Government, In
      the active discharge of their duties shall be such
      as are specifically     Ibed  and appropriated by the
      Legislature In the general appropriation bills pro-
      viding for the expense8 of the State Government.
      from year to year.      when appropriations for travel-
      lng expenses are made any ellowaimes or payments
      to officials   or employee8 for the use of privately
Hon. Ceo. H. Sheppard, Page 4

      owned automoblles shall be on a basis of a&
      tual mileage traveled for each trip or all
      trips covered by the expense accounts submit-
      ted for payment or allovance rrom such appro-
      prlatioas,   aad such payment or allowance
      shall be made at a rate not to exceed five
      (9)    cents for each mile’actually  travrled,
      and no~addltlonal expense incident to the op-
      eration of such automobile shall be allowed.”
             There Is no point of conflict    between Article 6823,
as ameaded, and the %lmltation       of Kileage Ridern in the
Departmental Appropriation Bill       and, you are, therefore, ad-
vised that In our opinion    Artlc i e 6823, as amended does not
supersede or override the ‘(Limitation of Mileage Rider” in
the Dfpartmentirl Appropriation B5.U. passed by the Forty-sixth
Legislature.
                                    Yours very truly
                                ATTORNZY
                                       GWEZALOF THSi.5
                                By /s/   Richard bi. Fairchild
R!+iFaFGtvb                     Richard W. Falrchlld,    Assistant
APPROVE 0cT 23, 1939
/a/   Gerald C. Mann
ATTORNSY
       GENERAL
             ‘W TFXAS
APPROVH): OPINIONCOMMITTEE
BY         BW-B, ChZibllUUl
