                     THEATTORNEYGENERAL
                                  OF-XAS


  WVILL     WILSON
A-RNEY        GENERAL
                                August 29, 1960

         Mr. D. C. Greer
         State Highway Engineer
         State Highway Building
         Austin, Texas              Opinion No. WW-923
                                    Re:    Whether an employee of the
                                           Texas Highway Department
                                           traveling to Austin to re-
                                           ceive a longevity award is
                                           entitled to the per diem or
                                           actual expenses which are
                                           provided for in Section 33
                                           of Article V of the General
         Dear Mr. Greer:                   Appropriation Act.
                   Your recent request for an opinion from this office
         reads, substantially, as follows:
                          "In response to my request of November
                     10, 1959, your office Issued opinion number
                     WW-790 which upheld the constitutionality of
                     the rider in our appropriation bill which
                     authorized us to give certain of our employees
                     longevity awards and pay for their transporta-
                     tion to Austin to receive such awards. . . .'
                          "Would you please advise me whether or not
                     an employee traveling to appear before the
                     Commission under the provisions of the subject
                     rider la entitled fin addition to transportation
                     expensgto   the per diem or actual expenses
                     which are provided for In Section 33 of Article
                     V of the General Appropriation Act."
                   The "rider" of which you speak In the,General Appro-
         priation Bill (House Bill 4, Acts of the 56th Legislature,
         Third Called,Session, 1959, chapter 23, page 442 at 590) pro-
         vides as follows:
Mr. D. C. Greer, Page 2 (WW-923)


              "As compensation in addition to that
         authorized to be paid above, the Highway
         Department is authorized to purchase and
         give to its employees at periodic intervals,
         under such rules and regulations as has been
         or may be adopted by the State Highway Com-
         mission, service award pIns and certificates
         for longevity of service and safety award pins
         and certificates for safe operation of state
         equipment; and the Department is also author-
         ized as further additional compensation to
         provide, at state expense, for the transporta-
         tion of employees with 25 years or more of
         service from their designated headquarters to
         Austin and return at intervals of not less
         than 5 year5 for the purpose of appearing be-
         fore the State Highway Commission to receive
         said longevity service awards." (Emphasis
         added)
          Article 6823a, Vernon's Civil Statutes, the "Travel
Regulations Act of 1959," deals with the payment of travel ex-
penses to state employees. This Article mentions in its var-
ious sections three types of expenses, i.e. per diem or actual
expenses, transportation allowance or transportation reimburse-
ments and travel expenses. Therefore, we believe your question
revolves around the interpretation of these expenses as applied
to the above quoted rider.
          A "per diem" allowance means a flat daily rate pay-
ment in lieu of actual expenses Incurred for meals and lodging
and as such shall be construed as additional compensation for
official travel purposes only. Section 3a, Article 6823a,
Vernon's Civil Statutes.
          "Transportation" is the movement of things or person8
from one place to another or implies the taking of persons or
property at some point and putting them down at another. Words
and Phrases, Vol. 42, page 513.  The "reimbursement" or "allow-
ance" allowed by the statute would be a paying back, or making
restoration of an equivalent to the expense of this movement
only.
          "Travel expenses," as defined by the Supreme Court of
                           80 N.E..2d 118 (120), comprehends
                          ther charges reasonably incident there-
to while on a Journey, including lodging, meals and kindred ex-
penses incurred during the trip. We believe It was the Legis-
lative intent for this term to have the above meaning as used
.   .




        Mr. D. C. Greer, Page 3 (WW-923)


        in Article 6823a, Vernon's Civil Statutes.
                  Therefore, applying all these definitions together,
        we find that "per diem" and "transportation" expense, allow-
        ance or reimbursement are two separate and apart rates which
        are applied for different reaons,l while "travel expense" is
        broad enough to encompass both terms.
                  The above quoted rider from the Appropriation Bill
        states that these pins and certificates are compensation In
        addition to that authorized and as further additional compen-
        sation to provide, at state expense, for th transportation
        -10      ees with 25 years or more service to Austin and the
        FcsFs&r       The term "transportation" expense Is the only
        one used in this rider and, in view of the above, we are of
        the opinion the scope of its meaning does not include "per
        diem" allowance.
                  The term "transportation" expense, even though we
        feel it would be unjustified, might be construed to mean
        'travel" expense, thereby including the payment of "per diem"
        allowance. If this be so, the "per diem" allowance to be
        paid, according to the above rider, would be "additional com-
        pensation." Thus, being subject to two constructions, we
        believe the following rule would apply.
                  In Allen v. Davis, 333 S.W. 2d 441 (k&4),,the court
        stated:
                       "We believe the law is settled in this
                  state that where a statute is capable of two


                  lThe Legislature bears this out by its treatment of
        the terms in Article 6823a. Section 3b states:
                       "The rate of per diem and transportation
                  allowance and method of computing these rates
                  shall be those set forth In General Approprla-
                  tion Acts providing for the expenses of the
                  state government from year to year." (Emphasis
                  added)
                  Section 6d, states:
                       "When two or more employee5 travel In a
                  single private conveyance, only one shall re-
                  ceive a transportation allowance, but this pro-
                  vision shall not preclude each traveler from
                  receiving a per diem allowance." (Emphasis
                  added)
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Mr. D. C. Greer, Page 4 (WW-923)


         constructions, one of which would favor an
         officer contending for compensation from a
         political subdlvislon of the government above
         his salary and the other construction would
         not so favor such officer the construction
         should favor the government."
          Likewise, the Supreme Court stated in Madden v.
Hardy, 92 Tex. 613, 50 S.W. 926 (928):
               11
                 . . . We have under consideration a
          statute, the construction of which is very
          difficult. One construction would give to
          the official some compensation for his ser-
          vices in addition to his salary. The statute
          admits of another construction which would
          not have this effect. In such a case the
          latter should be adopted. . . ."
          PorthLs additional reason, we are of the opinion
that the authority granted by the General Appropriation Bill
to pay the transportation of certain highway employees to
Austin and return does not include the granting of per diem
allowance to these individuals.
                         SUMMARY
         An employee of the Texas Highway Department
         traveling to Austin to receive an award for
         which the transportation is pald out of
         state expense Is not entitled to the per
         diem or actual expenses provided for in Sec-
         tion 33 of Article V of the General Appropria-
         tion Act.
                              Yours very truiy,
                             WILL WILSON
                             Attorney General of Texas




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    Mr. D. C. Greer, Page 5 (WW-923)


    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Paul W. Floyd, Jr.
    Lawrence Hargrove
    Raymond V. Loftin
    William H. Pool, Jr.
    REVIEWED FOR THE ATTORNEY GENERAL
    BY:   Houghton Brownlee, Jr.
