                A                    GENERAL,
                             E-US




Hon. Robert 3. Calvert                 Opinion NO. c-561
Comptroller of Public Accounts
Capitol Station                        Re:   Whether state oPficla$s
Austin, Texas 78711                          and heads of State agencies
                                             are to be considered State
                                             employees Insofar as the
                                             transportation allowance
                                             for the use of personally-~
                                             owned automobiles are con-
                                             cerned, and related ques;
Dear Mr. Calvert:                            tlons.
          In..yourletter reqtiestingan opinion from this office,
you submit the following questlions:
           Ol. Are State official8 and Reads of
    State agencies to be consldared State em-
    ployees as far a5 the transportation allow-
    ance for the use of personally owned auto-
    mobiles   are conaerned,?
          "2.  If your answer is in the afflrma-
     tlve, do the Rules and Regulations promulg@ted
     by me, and approved by you in accordance with
     the provisions of the erbove'namedArticle, apply
     to out-of-State trips while travelllng in per-
     sonally owned automobile&?

          “3. If your an8wer is in the nkgative,
     what transportation allowanae should be allowed
     Department Heads and State officials?
           "4. If your answer is that the Rules and
     Regulations d,oapply to State officials shall
     they be allowed their actual expenses baaed
     upon the time necessary  for travel by commercial
     transportation or ehall they be allowed their
     actual expenses for the entire time necbssary
     to travel  by private conveyance?"



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Hon. Robert S. Calvert, page 2 (c-561)


          With regard to these queetions, you make the following
statement:
          "An examination of the Appropriation Bill,
     under which we are now operating, will reveal
     that the Legislature has not specifically set
     the rate per mile to be allowed Head~sof State
     agencies while using their personally owned
     automobiles."
          Article 6823a, Vernon's Ci$l Statutes, is known as
the 'Travel Regulations Act of 1959.   The provisions of
Article 6823a, Vernon's Civil Statutes, most pertinent to our
discuaalon, are quoted as follows:
          "Sec. 2.  The provisions of this Act shall
     apply to all officers, heads of state agencies,
     and state employees. . . .Heads of state agencies
     shall mean elected state officials, excluding
     members of the Legislature who shall receive travel
     reimbursement as provided.by the Constitution,
     appointed state officials, appointed state of-
     ficials, whose appointment is subject to Senate
     confirmation, dlrectora of legislative interim
     committees or boards, heads of state hospital8
     and special ,achoola,and heads of state institu-
     tions of higher education.
          'Sec. 3. a. Reimbursement from funds
     appropriated by the Legislature for traveling
     and other necessary expenses incurred by the
     various officials, heads of state agencles,,,~
     and employees of ,the state in the actlvemdls-
     charge of their duties shall be on the basis
     of either a per diem or actual expenses 88
     specifically fixed and appropriated by the
     Legislature In General Appropriation Acts.
     A per diem allowance shall mean a flat dally
     rate payment In lieu of actual expenses in-
     curred for meals, and lodging and:,asauch
     shall be legally construed as additional com-
     pensation for official travel purpose8 only.
          "b. The rate of per diem and transporta-
     tion allowance and method of computing those
     rates shall be those set forth in Qeneral Ap-
     propriation Acts providing for the expeises of
     the,state government from year to year.


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Hon. Robert S. Calvert, page 3 (C- 561)


          The provisions of the General Appropriations Bill
for the current biennium, -B.B. 12, 59th Legislature, Regular
Session, 1965, most pertinent to our discussion of your first
question as quoted above, read as follows:
          "Article V
          nSec. 14. TRAWSPORTATIOR AUOWARCE.    Wane
     of the monies appropriated by this Act for
    *travel expense may be expended tomreimburse
     costs of transportation on official business
     except in compliance with the following con-
     ditions, limitations, and rules:
         na. The rate of such reimbursement for
    the employee's personally owned automobile
    shall be eight (8) cents per mile. No additional
    expense incidental to the operation of such auto-
    mobile shall be allowed. . . .v
         "Reimbursements for out-of-State transporta-
    tion for the use of peraonally owned automoblles
    together with per diem shall never exceed the
    coat of commercial first class transportation
    from the nearest airport and the per diem re-
    quired had the tmployee travelled by such con-
    veyance. . . .
          The Legislature did not expresaly state in Article V,
Section 14a of Rouse Bill.lg,-ttre~!Crane~o~ta~ioh“.~~l‘owande.,for
offiaers and heads of State agencies using personally owned
automobile8 on official State buslneas, both in-State and out-
of-State.
          In Patterson v. City of Dallas, (Civ.App. 1962), 355
S.W.2d~838, ref. n.r.e. appeal dismissed 83 S.Ct. 873, 372 U.S.
251, 9 L.Ed.2d 732, the Court stated at page 844 the followlng:
         "Where the intention of a statute is not
    clearly expreaeed or la so inadequately expreased
    that the court must resort to construction, it is
    proper to consider the resulta of any proposed
    construction, and the court will, if possible,
    place upon the statute a construction which will
    not result In an Injustice, inconvenience, un-
    reasonableness, prejudi$e to public interest,
    or absurd consequences.


              ..
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Hon. Robert S. Calvert, page 4 (c-561)



          We construe thoae provisions of Article V, Section
l&a of House Bill 12, which provide for the reimbursement for
in-State and out-of-State transportation for the use of per-
sonally owned automobiles aa applicable to officers, heads of
State agencies, aa well as State employees. A contrary con-
struction would prohibit the reimbursement of officera and ..
heads of State agencies for the use of personally owned auto-
mobiles on official State business, both in-State Andyout-of--
State, while it would allow such reimbursement for State em-
ployees. Such a construction would be unreasonable and absurd.
It is our opinion that the Legislature did.not Intend such a
result. Therefore, It is our opinion that the provisions of
Article V, Section 14a of House Bill 12 providing for reimburse-
ment for in-State and out-of-State transportation for the use of
peraonally owned automobiles are applicable to officers and
heads of State agencies, as well as State employees.
          One of the rules Andyregulations based on the pro-
vision8 of Article V, Section l&a of Rouse Bill 12, 59th
Legislature, Regular Session,.1965, which has been promulgated
by you and approved by this office under'the authority of Section
6a, Article 6823a, Vernon's Civil Statutes, is quoted in part
as follows:
         "REIRBlJRSEWERTFOR OUT-OF-STATE TRAVEL
    FOR TRE USE OF PERSONALLY OWRED AUTOMOBILES
    WITR PER DIEM
          "If an employee whoae out-of-atate
     destination is served by commercial air-
     line elects or is allowed by his agency head
     to travel by personal automobile, he oan be
     reimbursed in an amount no greater than the
     cost of a.flrst-class commercial airline
     ticket to the point of his out-of-state
     destination plus, In the event his point
     of ,depsrture Is not served by an airline
     the expense of transportation to the near-
     est airport from his point of departure or
     headquarters. Also,   added to this amount
     would be the appropriate amount of per diem
     which would have been allowed had he elf&ad
     to travel by commercial airline. . . .
          Based on our construction of the provisions of Article
V, Section 14% of House Bill 12, it is OUP opinion that the part
of your rule and regulation which provides for reimbursement for
out-of~4tate transportation for the use of personally owned auto-
mobiles, is applicable to officers and heads of State agencies,
as well as State .employees.

                           -2712-
  .    -




Hon. Robert S. Calvert, page 5 (c-561)


           Article V, Section 17% of House fill 12, provides as
f0110wst
           Y-80. 17.  EXCEPTIOHS TO THE PER DIRU AND
      TRAVEL ALLOWANCES. a. Executive head~sof State
      agencies, Including the Executive Director of
      the Legislative Council, shall be reimbursed for
      their aotual meals, lodging, and incidental ex-
      penses when traveling on off.leialbusiness either
      in or out of the State.'
          Under the provisions of Article V, Section 17% of
House Bill 12, supra, Heads of State agencies are reimbursed
for actual travel expenses rather than on a per diem basis when
traveling either in-State or out-of-State. Therefore, It is
our opinion that the part of your rule, supra, whiah provides
for a per diem allowance in computing the total reimbursement
for out-of-State travel for the use of personally owned auto-
mobiles, wh3le applicable to State employees, Is inapplicable
to heads of State agencies. In addition, it Is our ,oplnion
based on the express provisions of Article V, Section 17% of
House Bill 12, that heads of State agencies are entitled to
reimbursement for their actual expenses for the entire time
necessary to travel In their personal automobiles.
                      SUMMARY
           The provisions of the General Appropriations
      Bill, Article V, Section 14a, House Bill 12, 59th
      Legislature, 1965, providing for reimbursement for
      In-State and out-of-State transportation for the
      use of personally owned automobiles, are applicable
      to offiaers, heads of State agenciex, as well as
      State employees.
           Your rule and regulation, based on the travel
      provisions of the General Appropriations Bill,
      Article V, Section l&a, House Bill 12, 59th Legis-
      lature, 1965, promulgated by you and approved by
      this office under the authority of Section 6a,
      Article 6828a, Vernon'e Civil Statutes;,so far
      as it provides for the reimbursement for u8e of
      personally owned automobiles, la applicable to
      officers and heads of State agencies; as well      :
      as State employees. However, that part of the
      rule which provides for a per diem allowance,in
      computing the total.,reimbursementfor out-of-
      State travel for the use of personally owned,
      automobiles, while applicable to State employees

                             -2713-
Ron. Robert S. Calvert, page 6 (c-561)


     is inapplicable to heads of State agencies, be-
     cause of the provisions of Article V;.Section
          House Bill 12, 59th Legislature, 1965.
     l'i'a,
          In addition, under the provision8 of Article
     V, Section 17a, 59th Legislature, Regular,Sesslon,~
     head8 of State agenclea are entitled to relmburse-
     ment for their actual expenses for the entire time
     necessary to travel in their personal automobiles.
                            Verj,truly yours,




                               Ivan R. Williams, Jr.
                               Assistant
IRWjrrmkh
APPROVEDr
OPINION COMEITTEE
W. 0. Shultz, Chairman
Pat,Baileg
Qordon Cam
Robert Owen
Roy Johnson
APPROVED FOR TRE ATTORNET OENERAL
BY: T. B. Wright




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