          TEIEATTOWNEY                            GENERAL
                        OFTEXAS
                        i.USnN      Il.   TEXAS




                              March       13, 1948

Hon. Beauford H. Jester,             Opinion No. V-520
Governor of Texas,
Capitol Building,                    Re:      Liability   of the State
Austin, Texas                                 for traveling    expenses
                                              incurred by an agent of
  Attention:     Mr. Ransom                   the State commissioned,
                                              by the Governor for de-
                                              manding.and receiving
                                              from authorities    of
                                              another state a fugi-
                                              tive from justice    and
                                              returning him to Texas.
Dear Governor:
           Reference IS made to a request for an opinion,
dated Februarv 19, signed by Mr. L, D. Ransom, one of
your Secretaries,   which reads:
           "The Governor's       Office      seeks an opln-
      ion on the following:
            "Deputy Sheriff from Austin, Travis
     County, Texas, e o e went after and return-
     ed the party by the name of #alter Lee
     Lyons from Los Angeles, California.     They
     are now rendering an expense account in the
     amount    of 965.30to be paid from the Gov-
     ernor's    funds covering the return of fugi-
     tives.     Is approval necessary from the Gov-
     ernor's Office for this expense account &-
     m      this trip is made?

            'Will appreciate your giving             the under-
      signed an opinion on the above."
           Mr.  Ransom has verbally advised us that a requi-
sition was issued by you to the Governor of the State of
California  demanding the apprehension of one Walter Lee
Lyons, a fugitive    from Justice from this State, who was
then in California,     and to deliver him to the Deputy Sher-
iff of Travis County, whom you commissioned as agent of
Hon. Beauford H. Jester       - Page 2   (V-520)


this State to receive the fugitive,       return, and deliver
him to the Sheriff    of Travis County.      Your requisition
was honored by the Governor of the asylum state and the
fugitive  was delivered   to the agent, who fulfilled       his
mission by delivering    the fugitive    into the custody of
the Sheriff  of Travis County.      It is also our fnforma-
tion that the commission was written on an old blank
form which was printed and used during the admfnistra-
tion of one of your predecessors      in office,   and on which
there was printed at the bottom thereof these word‘s:
           "No expenses whatsoever will be allowed
     or paid by the State of Texas unless special-
     ly stipulated  and embraced in the above ap-
     pointment **I
           Since the foregoing     quotation was embraced in
the agent’s commission, we must determine whether you
may now legally     approve and certify   to the Comptroller
for payment the account of the agent for the actual and
necessary expenses incurred by him In performance of his
duties,   We believe     our answer is controlled  by Article
1005 and Section 1 of Article 1006, V. C. C. P,, and Item
16 of the current appropriations       made to the Executive
Department 0 Article      1005 and Section 1 of Article   1006
read, respectively:
           Article   1005$
           ‘When the Governor deems it proper to
     demand a person who has committed an offense
     in this State and has fled to another State
     or territory,  he may commission any suitable
     person to take such requisition.   The accused,
     if brought back to the State, shall be deliv-
     ered up to the sheriff  of the county in which
     it is alleged he has committed the offense.”

           Article   1006 0
            *‘Section 1. The officer    or person so
     commissioned shall receive as comnensation the
     actual and necessarv traveline      exuensea upon      (
     recuisition     of the Governor to be allowed by
     such Governor and to be paid out of the State
     Treasury upon a certificate      of the Governor
     reciting    the services  rendered and the allow-
     ance therefor .,‘I (Emphasis added)
Hon..Beauford   H. Jester   - Page   3 (V-520)


           Item 16 of the Appropriations   made to the Exe-
cutive Department is an appropriation    of $25,000 for each
year of the current biennium for "Returning V'ugitives
from Justice,11

          Article    1006, V. C. C. P, 3 before it was amend-
ed in 1935 (Acts    44th Leg,, ch. 162,p0 412) read:

           "The officer     or person so commission-
     ed sah 11 ecefv
     the Governor shall allow for such service
     to be paid out of the State treasury upon'
     a certificate     of the Governor reciting   the
     services    rendered,"    (Emphasis added)
            The amount to be paid to an agent of the State,
commissioned by the Governor under the provisions        of Arti-
cle 1005, V. C. C, P,, was by Article      1006 left to the dis-
cretion  of the Governor,     Brightman, Sheriff,   v. Sheppard,
Comptroller    (1933),  122 Tex, 318, 59 S. W. 2d 112.     Article
1006, prior to its amendment in 19351 did not specifically
provide,  as it does now, that the officer      or nerson so cog-
missioned shall receive as comoensation his actual and nec-
essary traveling     exnenses to be alioved by the Governor and
to be paid out of the Ssate Treasury npon a certificate          of
the Governor reciting     the services  rendered and the allow-
ance therefor.
            A very material change was made in Article      1006
by the Amendment of 1935* Prior thereto,       it made no men-
tion whatever of traveilng     expenses of the agent, nor did
it fix any rule for the guidance of the Governor in deter-
mining the amount of compensation he could allow for all of
the agent$s services,      The amount of compensation was left
entirely   to his discretion,    Whatever amount he allowed,
whether adequate or inadequate,      or none at all, was final.
The amended statute is plain, definite      and unambiguous.
It clearly   provides that an agent of the State commission-
ed by the Governor, as was the officer      in this instance,
shall receive from the State of Texas as compensation for
his services   his "actual and necessary traveling      expenses."
The amount of such expenses may be definitely       determined,
for the statute contemplates     that the expense account of
the agent will be itemized when presented to the Governor
for approval and certification      to the Comptroller   for pay-
ment, The Governor may require such verification         of such
an account as he deems proper and may refuse any item
thereof which he thinks is not a necessary expense.
Hon. Beauford H. Jester    - Page 4     (V-5&!


           It is our opinion that the Legislature    has made
the payment of such expenses, upon approval of the Gover-
nor as to the correctness   thereof, an obligation   of the
State of Texas and has made an appropriation     to discharge
that obligation.
            Since the payment of the actual and necessary
traveling   expenses of an agent of the State is an obliga-
tion of the State, it is our opinion the Legislature     in-
tended that all such obligations    should be paid without
exception by the State,     It is our further opinion the on-
ly discretion    which the Governor has when an account for
such expenses is presented to him for approval is to de-
termine the correctness    thereof, and, when an account is
approved, it then becomes his duty to certify     the same to
the Comptroller for payment. We, therefore,     conclude that
your question should be answered in the negative.
                               SUMMAFiY

            Section 1 of Article     1006, V. C. C. PO,
     makes the payment of all actual and necessary
     traveling    expenses incurred by an agent of the
     State,   commissioned    by the Governor in accord-
     ance with the provisions       of Article   1005,
     v. c. c. P0 9   an  obi:gation   of  the  State  of Texas,
            In order for an agent, commissioned by the
     Governor in accordance with the provisions    of
     Article   1005, V. C. Co P, 1 to be paid his actual
     and necessary traveling   expenses, it is not nec-
     essary that a stfpuiatfon    providing for such pay-
     ment be inserted in the commission.
            When a commission issued by the Governor to
     an agent) under authority       of Article   1005, V.c,C.P.,
     contains no specific      stfpulatioh   that the actual
     and necessary traveling       expenses of the agentwill
     be allowed, but does contain a provision           to the
     effect   such expenses will not be allowed unless
     specifically    stipulated    therein,   such a provision
     is contrary to the plain provisions         of Article
     1006, v. Co Co P,,     and   is whclly  ineffective    to
Hon. Beauford   8, Jester   - Page ~5 (V-s2izoj


     defeat the right of the agent to collect
.    such expenses or to prevent the Governor
     from approving his account for payment.


                                      Yours very truly,
                                 ATTORNEYGENERAL
                                               OF TEXAS



                                 Bytiti
                                      Bruce W. B
BWB:wb                                Assistant


                                 APPROVED:


                                  IRST ASSISTANT-
                                 ATTORNEY GEXERAL
