                       ORNEY           GENERAL
                      OF%-EXAS




Honorable 0. L. Stiefer
Chief Deputy
Bureau of Labor Statistics
Capitol Station
Austin, Texas
                                 Opinion WW-495
                                 Re:    In conducting the affairs
                                        of the office of Labor
                                        Commissioner, following
                                        the death of the Labor
                                        Commissioner, is the
                                        Chief Deputy entitled to
                                        receive the salary pro-
                                        vided for the Labor Com-
                                        missioner, and, under
                                        such circumstances, Is
                                        the Chief Deputy entitled
                                        to reimbursement for his
                                        actual expenses in lieu
Dear Mr. Stiefer:                       of per diem?
          In your recent request for an opinion from this of-
fice you have asked two questions. They are substantially as
follows:
         When the Chief Deputy to the Commissioner
         of the Bureau of Labor Statistics, following
         the death of the Labor Commissioner, assumes
         the duties and powers of the Labor Comtnis-
         sioner and continues to perform the duties
         as Chief Deputy, Is he entitled to receive
         the salary provided for the Labor Commissioner?
         Under.these same circumstances is the Chief
         Deputy entitled to reimbursement for his ac-
         tual expenses in lieu of per diem?
          House Bill 109, Acts of the 31st Legislature, Re ular
Session, 1909, Chapter 24, page 59, codified as Article 51&4
provides for the establishment of the office of Labor Commis-
sioner and for his appointment. In part, that Articles provides:
Hon. 0. L. Stiefer, page 2 (W'W-495)


               ‘A Commissioner of Labor
          Statistics . . . shall be bienlally
          appointed by the Uovernor for a term
          of two years. . . .U
          Senate Bill 143, Acts of the 48th Legislature, Regular
Session, 1943, Chapter 13, page 14, codified as Artiale 6252-1,
Vernon's Civil Statutes, provides for the conduct of business
by assistants or deputies when a physical vacancy oacurs in a
public office. It ceads as follows:
              "When there shall oacur a physical
         vacancy in a public offiae in this State,
         by reason of death or otherwise, the duties
         and powers of such office shall immediately
         devolve upon the first assistant or chief
         deputy if there b::one, who shall conduct
         the affairs of thC office until the vacancy
         in the term thereof shall be filled by the
         appointment or election and qualification of
         a successor to the principal officer; should
         any such vacancy occur while the Legislature
         is in session (,wherethe appointee must be
         confirmed by the Senate) such first assistant
         or chief deputy (as such) shall not disaharge
         the duties of the office for a longer period
         than three (3) weeks'snd in no event after
         such session of the Legislature has adjourned.
         The provisions hereof shall not apply to va-
         cancies in the membership of boards or com-
         missions."
          Provision has been made by Article  6252-1 for the
Labor Commissionerls duties to be performed and his powers
to be exercised in the event of a physical vacancy occurring
in the office. It does not provide a method of filling the
vacancy since this is the sole responsibility of the Governor.
          House Bill 133, Acts of the 55th Legislature, Regular
Session, 1957, chapter 385, page 870, at page 1013 appropriates
the money on which the Bureau of Labor Statistics operates.
Item 1 of House Bill 133 provides that the salary of the Labor
Commissioner is to be $8,400.00 per annum. It also provides
by line item for a salary of $5,160 per annum to be paid to
the Chief Deputy. The setting of salaries then is not within
the discretion of the Labor Commissioner.
          It is the opinion of this office that the Chief
Hon. 0. L. Stiefer, page 3 (b%495)


Deputy, the position which you now occupy, remains in that
position while performing the duties of the Labor Commissioner
when a vacancy exists in that office and is not entitled to
receive the salary provided for the Labor Commissioner.
          In answer to your second question relative to re-
imbursement of expenses, Senate Bill 35, Acts of the 36th~Leg-
islature, Regular Session, 1919, Chapter 106, page.164, codified
as Article 5151, Vernon's Civil Statutes, sets forth the expense
allowance for the Commissioner. It provides:
              "The Commissioner shall be allowed
         necessary postage, stationery, printing,
         and other expenses to transact the busi-
         ness of the Bureau, and he and any em-
         ployee of the Bureau shall be allowed his
         actual necessary traveling expenses while
         in the performance of duties required by
         this chapter, and within the limits of the
         appropriations made therefor." (Emphasis
         added)
          We   must refer to the appropriations made for the
operation of   the Bureau of Labor Statistics to determine what
limitations,   if any, have been placed upon the expense monies
provided for   the Bureau.
          Section 29 of Article VI of House Bill 133 sets
forth the travel regulations which must be followed in ex-
pending monies providea for travel for all state agencies.
Paragraphs a and b of Section 29 are pertinent to your ques-
tion. Those provisions are:
               "a. The amounts appropriated in
          this Act to each agency of the State for
          the payment of travel expenses are intended
          to be and shall be the maximum amounts to
          be expended by employees and officials of the
          respective agencies. None of the moneys ap-
          propriated by this Act for travel expenses may
          be expended unless the official travel snd the
          reimbursement claims therefor are in compliance
          with the following conditions, limitations, and
          procedures:
               "b. These provisions shall apply to
          all officers, heads of state agencies, and
          employees who are reimbursed for traveling
Hon. 0. L. Stiefer, Page 4 (WW-495)



          expenses from money appropriated in this
          Aat.  Heads of State agencies shall mean
          elected State officials, appointed State
          officials, appointed State officials
          whose appointment is subject to Senate
          confirmation, . . .'
          Section 38 of Article VI of House Bill 133 sets out
certain exceptions to the per diem allowance. They are ,as fol-
lows:
               "a. Members of the Legislature and
          other elected state officials and heads
          of State agencies shall be reimbursed for
          their actual meals, lodging and incidental
          expenses when traveling on official business
          either in or out of the State."
          The Chief Deputy, even though performing the duties
of the Labor Commissioner, does not come within the definition
of "heads of State agencies" since he is neither elected nor
appointed. Therefore, the exceptions to the per diem allow-
ance do not apply to him. It is the opinion of this office
that the chief deputy is not entitled to reimbursement for
his actual expenses in lieu of per diem.
                           SUMMARY
                 When the Chief Deputy to the
                 Commissioner of the Bureau of
                 Labor Statistics, following
                 the death of the Labor Comis-
                 sioner, assumes the duties and
                 powers of the Labor Commissioner
                 as provided in Article 6252-1,
                 Vernon's Civil Statutes, and con-
                 tinues to perform the duties of
                 Chief Deputy, he is not entitled
                 to receive the salary provided
                 for the Labor Commissioner. Un-
                 der these ssme circumstances the
                 Chief Deputy is not entitled to
                 reimbursement for his actual ex-
                 penses in lieu of per diem.
                                 Very truly yours,
                                 WILL WILSON
                                 Attorney General of Texas



BF:bb
                                 TZ2G?ZZoW
                                     Assistant
Hon. 0. L. Stiefer, page 5 (WW-495)


APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Ray Loftin
Leonard Passmore
Mary K. Wall
Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. GEPPERT
