              E.A      OIZNEY         GENE

                       P   TEXAS




Hon. Joe D. Carter, Chairman
Texas Water Commission
P. 0. BOX 2311
Capitol Station
Austin, Texas
                                Opinion No. C-102
                                Re:   Travel expenae of em-
                                      ployees of the Texas
Dear Mr. Carter:                      Water Commission.
      Your request for an opinion reads as follows:
           "By your Opinion Number C-3, dated
      January 23, 1963, the Texas Water Com-
      mission was advised that expenditures
      could be made from our Appropriation Line
      It~em#14 (cancellation fund) for certain
      expenses incurred and to be incurred in
      participating in the suit in the Lower Rio
      Grande Valley to adjudicate water rights,
      styled State of Texas et al vs. Hldalgo
      County Water Control and Improvement Dis-
      trict No. 18 et al. In this suit cancel-
      lation of water rights claims Is sought
      b the Texas Water Commission. Line Item
      1.tis as follows:
                           "'For the Years Ending
                           August 31,     August 31,
                              1962          1963
"'14. For expense of can-
      cellations, notices,
      Including advertls-
      ing, postage, fees
      and other costs          15,000          U.B.'"
            "Another expense which will be incur-
       red in connection with this litigation re-
       lates to making personnel available to plat


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Hon. Joe D. Carter, page 2 (C-102)



      on maps acres now being irrigated in order
      that a determination can be made concerning
      those areas which are not entitled to re-
      ceive Rio Grande waters. Such undertaking
      is a necessary step in the path leading to
      cancellation of unused water right claims,
      and the maps, when completed, will consti-
      tute evidence necessary for the proper prepa-
      ration of the State's case.
            "In normal cancellation proceedings be-
      fore the Commission, work of this type is
      done in our office using the records of the
      Commission.   However, to do the work in the
      Valley case, our personnel must go to the
      Courthouse at Edinburg where are maintained
      the records containing the information that
      will be transposed to the maps being prepar-
      ed. Naturally, this will entail per diem
      and travel expense which our normal travel
      expense line item cannot accommodate.
           "The Commission believes that monies
      available in the cancellation fund could
      lawfully be used for this mapping work since
      you have previously ruled the fund could be
      utilized to acquire aerial maps. The maps
      we now need to prepare are just as important
      to the State's case, and unless such cancel-
      lation fund can be used to pay expenses of
      our employees while In Edinburg, we will have
      to bring this phase of our cancellation pro-
      gram to a halt.
           "On the basis of the foregoing facts, may
      the Water Commission pay from our Appropriation
      Line Item 14 travel and per diem expenses of em-
      ployees whose presence is required in the Lower
      Rio Grande Valley to prepare evidence necessary
      for the proper preparation of the State's case
      in State of Texas et al vs. Hidalgo County
      Water Control and Improvement District No. 18?”
            Items 4 and 14 of the Appropriation to the Texas
Water Commission read as follows:




                          -504-
Hon. Joe D. Carter, Page 3 (C-102)


                                       "For the.Years Ending
                                      August 31,       August 31,
                                         1962            1963
“4   .   Travel Expense and the
         operation and mainten-
         ance of trucks. . . . .       52,000           52,000
I!. . .

“14.     For expense of cancel-
         lations, notices, ln-
         eluding advertising,
         postage, fees and other
         costs . . . . . . . . .       15,000             U.B."
       In construing the provisions of Item 14, above quoted,
it was held In Attorney General's Opinion C-3 (1963):
               "It is noted that the $15,000 appro-
          priation contained In Item 14 may be ex-
          pended for any necessary expense involved
          in cancellation of water rights. It is
          further noted that such appropriation Is
          not limited to expense Involved In an ad-
          ministrative proceeding but includes ex-
          pense involved in cancellation whether by
          an administrative proceeding or a judicial
          proceeding.
               "Since It has been determined that the
          maps and aerial photographs referred to in
          your request are necessary to the proper
          preparation of a case seeking certain can-
          cellations, you are advised that Item 14 may
          be expended for such purpose."
       In construing the provisions of Item 4, above quoted,
we are governed by the provisions of subdivision (a) of
Section 31 of Article V of the General Appropriations Act,
which reads as follows:




                             -50,5-
Hon. Joe D. Carter, page 4 (C-102)


       may be expended unless the official travel
       and the reimbursement claims therefor are
       in compliance with the following conditions,
       limltzitions,and procedures: . . ." (&-
       phasis added).
       In Attorney General's Opinion O-1294 (1939), the
same being Conference Opinion 3089, this office held:
            "Where a department or division of a
       department is provided with a specific item
       of appropriation for 'traveling expenses,'
       the amount thus provided represents the maxl-
       mum which may be spent for that purpose by
       the department or division of a department,
       and such amount may not be supplemented from
       any source, save and except from Federal funds
       authorized by the Federal Government to be used
       for such purpose."
       This conclusion was based on a construction of the
General Rider appended to Senate Bill 427, Acts of the
46th Legislature, Regular Session, providing in part as
follows:
            "Except as to field travel expense of
       the Highway Department, It Is provided that
       no expenditure shall be made for traveling
       expenses by any department of this State in
       excess of the amount of money itemized here-
       in for said purpose. This provision shall
       be applicable whether the item for traveling
       expenses is to be paid out of the appropria-
       tion from the General Fund, from fees, receipts
       or special funds collected by virtue of cer-
       tain laws of this state, or from any other
       funds (exclusive of Federal funds) available
       for use by a department."
        Since expenditures for travel expenses have been
specifically provided for in Item 4, it is our opinion
that the appropriation for travel expense may not be sup-
plemented bp funds appropriated In Item 14. Attorney Gene-
      Opinions O-5899 (1944) and O-2131 (1940). Thus It
ra.l.'s
was not the legislative intent to allow necessary travel
expense to be paid from funds appropriated in Item 14, In
view of the provisions of Section 31 of Article V of the
General Appropriation Act, above quoted.
       You are therefore advised that the travel and per

                          -506-
Hon. Joe D. Carter, page   5   (C-102)

diem expenses of employees whose presence Is required in
the Lower Rio~Grande Valley to prepare evidence neces-
aary~for the proper preparation of the State's case In
State of Texas v. Hidalgo County Water Control and Im-
 rovement District No. 18 is to be paid for out of Item
z rather than Item 14.

                       SUMMARY
        The travel and per diem expenses of em-
        ployees whose presence is required in the
        Lower Rio Grande Valley to prepare evidence
        necessary for the proper preparation of the
        State's case in State of Texas v. Hidalgo
        Count Water Control and Improvement District
        No. 18 is to be paid for out of Item 4 rather
        than Item 14.
                               Yours very truly,
                               WAGGONER CARR
                               Attorney General



                                   John Reeves
                                   Assistant
JR:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. 0. Shultz
Grady Chandler
Ben Harrison
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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