*



                THE       A'ITORNEY             GENERAL
                              OF     TEXAS




                                     July 30, 1973


    Honorable George W. McNiel                  Opinion’ No H- 74
    State Auditor
    Sam Houston State Office Building           ,Re:    Legality of a revolving
    P. 0. Box 12067                                     fund ertablirhcd  by the
    Aurtin,  Texar 78711                                State Commisrion     for
                                                        the Blind from funda
                                                        received by gift and
                                                        from which employeer
                                                        of the agency may re-
                                                        ceive advances againat
                                                        their accrued claims
                                                       ,for erlary or travel
    ,Dear Mr.   McNiel:                                 reimbursement.

           You have, arked about the authority of the :State Commierion for
    the Blind to engage in certain,practicer  regarding employee expense*.
    Your letter atater:

                   II . . . State Commiraion for the Blind . . .
                  current fiecal practicer   include the payment
                  of advancea~ against employeer’ estimated
                  claimr for salary or travel rcimburecment.
                   The source . , . bar been client training ex-
                 ,,penre fundr. . . locally held and darived from
                  donationr for rehabilitation   activitier. ”

           You alao ae.k if our answer would be different if, the advances were
    made after’ae   actual performance   of the travel or .employment but be-
    fore pyment by the State Comptroller.

            Furnished with your request was a memorandum       reflecting   the
    vicar   of the Commirrion.   By it we ire advired th&t:




                                       p. 332
                                                   ._        _
.    .




    Honorable   George   W. McNiel,         pege 2       (H-70




                        (I) The agency “has a rerponribility  to rerve
                 many personr who cannot readily come to the office
                 of thin agency.. . . and it ir incumbent upon this
                 agency’r rtaff . . . to deliver the rervicer   of the
                 agency to clients who cannot . . . readily leave
                 their homer. ”

                         (2) To service       eligible individual8   ,throughout
                 the lrtate “entailr a      continuing extension     by thin
                 agency’s    field c.taff   of personal fund. or     personal
                 credit required for        the defraying of . .     . reason-
                 able and necearary         travel expenrer    . .   . . ” and

                        (3) The agency dealn with human need.;              time
                 ir frequently of the eeaence.

    We are further    advised .by the Commisrion:

                 ” . . . [T]ravel   voucherr are rometimer    delayed
                 weskr or monthr in being proceesed at the State
                 Comptroller’r    office . . . . [Flew of our employ-
                 ees . . . can continue to finance their officia’l
                 travel with personal fundr. . ; . ”

            In our opinion, rufficient authority doer exist for the Commiarion
    for the Blind to advance money from unrertricted          fundr to pay authorized
    agency expenrcr incurred (or to be incurred) by employeer in the diecharge
    of agency buainesr.      We find, however,    no authority   for pre-payments    of
    salary.    Becaure rpecial provirionr    apply to the Commirrion       which do not
    apply to all State l  gencier, it in unnecenmary to conrider the authority that
    would exist in their absence..

            The general rtatutory authority of the Texas Commireion   for the
    Blind is found in Articles   3207a, 3207b, .md 3207c, V. T. C.S.  In 5 2 of
    Article   3207a; Betting out power8 and dutier of the Commiraion,   it is
    provided:




                                              p.   333
         Honorable    George, W, McNiel,          page 3   (H-74)




                          “(0     The Commirrion    rhall take ruch measures
                                  ar it may deem advisable to prevent blind-
                                  nemmand to conrerve    eyeright.

                          . . . .

                          ‘l(i)   The Commirrion      may receive and expend
                                  giftr, .bequerts, and devirea from inditi-
                                  dualr, arrociationr   and corporationr,    in
                                  accordance with the proviriona     of’this Act. I’

                Article      3207b, in part,    readr   (empharir   added):

                          ” . . . [T]he Commise.ion for the Blind shall an-
                          nuallytlpoint  an executive director and ruch other
                          employeea aa may be neceraary and authorized by
                          legislation applicable to the Commission for the
                          Blind.    Expenaer of member8 of the Board and of
                          employee8 rhall be paid in the moot efficient and
                          practical manner authorized by law for the payment
                          of ruch expenrea.    All accounta #hall be paid in ac-
                          cordance with laws applicable to the Commiaaion or
                          in accordance with lawr applicable to State agenciee
                          generally, ”

                 Article 3207c, dealing with the Vocational Rehabilitation             Program
         ,of the Commission,    provider in part (emphaair added):

                          “Sec. 3. . . . In carrying       out hir dutier under thir
                          Act the Director:

                                    “(a) shall make regulationa governing pcrson-
                                    nel rtandardm, the protection    of recordr and
                                    confidential information,   . . . and ruch other
                                    regulationr ar he findr necerrarv     to carry out
                                    the Durpoaeo of thir Act:,




                                                    p. 334



-.   .
The Honorable    George   W. McNiel,     page 4   (H-74)




                    . . . .

                    “(e) rhall make certification   for dimbursementi,
                    in accordance with regulationr,     of funds avail-
                    able for vocational rehabilitation purporer;

                    “l(f) shall, with the approval of the Commission.
                    take ruch other action as he deemr necessary
                     or appropriate to carry out the purpose8 of the
                    Act;

             * . . .

             “Sec. 7. The     Director ir hereby authorized and em-
             powered,  with    the approval of the Commirsion,    to
             accept and we      giftr made unconditionally by will or
             otherwise for    carrying out the purporer of this Act. . . . I’

        The provision8   evidence an intent that the work of the Commission
not be impeded by unnecersary red tape. Subsection (i) of 5 2 of Article
 3207a, V. T. C. S., conatituter general legislation “earmarking”       all gifts,
bequests and devisea from individual8 to the Commission for it8 use,
inter        “as it may deem advisable to prevent blindnero and conserve
eyeeight, ” pursuant to aubeection (f) thereof.    Section 7 of Article    3207c,
 V.T.C.S.,    is additional general legislation to the aame effect.     These
provisionr   are consistent with Article 16, ! 6 of the Conetitution which
 (after generally providing that no appropriation for private or individual
purpose8 shall be made), rtates (emphasis added):

                     l’(b) State agencies charged with the rerponai-
             bility of providing servicee to those who are blind
             . . . may accept money from private . . . sourcea,
             deeignated by the private . . . rource ae money to
             be used in and eatablirhing and equipping facilities
             for asaioting those who are blind .’ . . in becoming
             gainfully employed, in rehabilitating end restoring
             the handicapped, and in providing other services




                                       p. 335
The Honorable   George   W. McNiel,   page 5   (H-74)




            determined by the state agency to be essential
            for the better care and treatment of the handi-
            capped.   Money accepted   under this subsection
            is state money. . . .

                    “The state agencies may deposit money
            accepted under this subsection either in the state
            treasury or in other secure depositories.       The
            money may not be expended for any purpose other
            than the purpose for, which it was given.     Notwith-
            stsndinp;
            the state agencies may expend money accepted
            under this subsection without the necessity of an
            appropriation.    unlesr the Lenislature.   bv law,
            requires that the money be expended only on ae-
            prouriation.    The Legislature   may prohibit state
            agencies from accepting money under this sub-
             section or may regulate the amount of money ac-
            cepted, the way the acceptance and expenditure
            of the money is administeted,      and the purposes
            for which the state agencies may expend the money
             . . . . ,I

        The’general  legislation   on the subject omits any requirement     that
such’moneys be expended by the Commission only upon appropriation.
We think the Legislature      has impliedly sanctioned expenditures from
such gifts without appropriation,      and that further general legislation
would be necessary     to change that policy.     See Attorney General Opinions
M-1199 (1972), M-91 (1967). A       ccordingly,  provisinns  and riders contained
in the General Appropriations       Act cannot control here, whatever might be
the case of gift receiving agencies not within the scope of Article        16, 5 6b
of the Conrtitution.    Compare Attorney General;Opinion        V-412 (1947). Tbe
 Legislature   has been given only the power to regulate (not change) the pur-
poses for which such gifts may be expended, i. l, , decide which, if any, of
the donor’s designated purposes may be carried into effect, and it has been
 specified by general legislation that those gifts consistent with the terms of
Articles    3207a and, 3207c, V. T. C.S., may be utilized and expended by the
 Commission.      Donations become State money but are a supplemental source
 of funds to the Commission.




                                      p. 336
.   .




    The Honorable   George   W. ticNie1,    page 6   ~(H-74




            We conclude that donations received   by the Commission,    unless
    limited by the private grant itself, may currently be spent without ap-
    propriation  for any legitimate purpose (consistent with its statutory
    mandate) deemed by the agency to be necessary or essential for the
    better care and treatment of those whom it serve&        The Commission
    had determined that adequate service     is endangered by requiring its
    employees to finance travel expenses and other expenses incurred on
    behalf of the Commission and the State. Unless a constitutional bar
    applies,   we cannot say that relief of such a condition is not a legitimate
    purpose for which such funds may be expended, particularly       since Arti-
    cle 3207b expressly authorizes the payment of such expenses in the most
    efficient and practical manner authorized by law.

            Article 3, Sections 44, 50, and 51 of, the Constitution bar payment
    of post-performance       extra compensation or claimr not supported by pre-
    existing law. and prohibit the giving or lending of the credit of the State
    in aid of persons, the pledge of the credit of the State for the present or
    prospective    liability of persons, or the grant of public money to persons.
    We do not see any violation of such constitutional provisions      so long as
    the expenses advanced by the agency are limited to those authorized un-
    der Article    6823a or other applicable.laws.    Authorized expens,es are
    not “salary” or “emoluments, ” or “extra compensation, ” and disburse-
    ments of funds to pay them are not gifts or grants for private purposes.
    Such disbursements       are made for a public purpose and expenditures from
    funds on hand for public purposes are not prohibited.       State v. City of
    Austin, 331 S. W. 2d 737 (Tex. 1960). affirming State v. City of Dallas.
     319 S. W. 2d 767 (Tex. Civ.App.     1959); Barrington v. Cokinos, 338 S. W.
     td 133 (Tex. 1960). Articles3207a,      3207b, and 3207c, V. T. C.S.,   con-
     stitute “pre-existing     law. ‘I’

           Authorized expenses which are to be classified as paid for a public
    purpose are those of such a niture that the function of the agency cannot
    be discharged without incurring them, See Terrellv.       King, ~14S. W. 2d
    786 (Tex. 1929); Anno: 5 ALR 2d 1182; 63 Am. Jur. Zd, Public Officers
    and Employees,     0 387; 67 C. J. S., Officers, 8 91. Such expenses  are
    part of the operating costs of the agency and are nither perquisites nor
    emoluments.      Though they may sustain an employee, they are not expend-
    ed for the benefit of the employee, but for the agency which cannot function




                                           p. 337’
The Honorable   George   W. NcNiel,    page 7 (H-74)




unless employees are so surtained.     They are no part of the employee’s
“compensation   for rervices rendered” and are also to be distinguished
from personal expenses for private and individual purposes.     See Terre11
v. Middleton,  187 S. W. 367 (Tex. Civ. App. ; San Antonio, 1916, writ re-
fused).

         Authorized travel expenses incurred by an agency,employee       are
liabilities  and expenses of the agency, not of the employee, and if the
agency pays them in the first instance from unrestricted funds, there is
no reason that we can see why the agency would not be entitled in the same
manner as the employee, to later reimbursement         therefor from funds
specifically    appropriated to pay travel expenres.    Cf. Attorney General
Opinions S-103 (1953): WW-1207 (1961). A procedure already exists where-
by agencies may have public transportation       costs billed directly to them
and paid by the Comptroller      upon a purchase voucher from the agency.
See $ 12b, Article    5, of the General Appropriations   Acts for both 1972md
1973-34.


      Reimbursement    of authorized travel expenses incurred by State
agency members and employees from specifically      appropriated funds is
governed by Article 6823a, V. T. C. S., the Travel Regulations Acts of
1959. That statute does not prohibit the expenditure of non-appropriated
funds for such purposes.   Attorney General Opinions WW-1053 (1961),;
M-1175 (1972). Section 4 of that Act does specify (emphasis added):

                    “Sec. 4 Unless otherwise provided by law,
            officer~r and employees traveling to the~perform-
 \          anc,e of their official duties shall not accept any
            aums of money for wage8 or expenses, from any
            corporation,    firm, or person who may be or is
            being audited, examined, inspected. or investi-
            gated. and must receive their trave@expezsss
            from the amounts appropriated in the Apnropria-
            tion Acts.    The Comptroller   is hereby prohibited
            from paying the salary of any employee of the state
            who violates these provisions. ”




                                      p. 338
.   .




    The Honorable    George   W. McNieI,     page 8 (H-74)




    But the provirion   has no application to activities not involving audits,
    examination,   inspections or invertigations,  and we interpret it as in-
    tended to guard against conflicts of interest - not against the pre-pay-
    ment of such expenses by the agency from unrestricted funds rather
    than by the individual employee from his personal    assets.

           State employees are not required by law, as a condition of their
    employment,     to privately finance the authorized agency expenses they
    incur.   But if they do, they are given by ,law a means to recoup.         The
    “per diem” and “mileage” provisions        of Article 68231, V. T. C-S., do
    not argue otherwise; those are roughly calculated (in conjunction with
    Appropriation    Act provisiona) to reimburse authorized actual expenses
    without the need for minute and wasteful accounting recxy               the
    State.   Section 3a of that statute specifically    states that per diem ad-
    vances   “shall be legally construed as additional compensation for offi-
    cial travel purposes only. I’

          Section lla Article 5 of both the 1972 and the 1973-1974 General
    Appropriation  Acts reads (emphasis added):

                 “GENERAL       TRAVEL     PROVISIONS.    a. The amounts
                 specifically   appropriated in this Act to each agepcy
                 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 respec-
                 tive agcrries.     None of the moneys.a~~k~~priated   by
                 this Act for travel expenrer may be expended unless
                 the ‘official travel and the reimbursement     claims
                 therefor are in compliance with the following con-
                 ditions, limitations,    and procedures.   . . . ‘I

           In our view, this provision har no application to expenditures autho-
    rized by other laws, or to funds which msy be spent without appropriation.
    But it does govern reimbursement     from appropriated funds.

          Article 68230, i 6f. provides that an officer or employee who receives
    an overpayment for travel expensesis    to reimburse the state for such over-




                                           pm 339
        .   .   .

.   .



                    The Honor.able George W. McNiel, page 9         (H-74)



                    payment.   We think the frame obligation would rest with an employee or
                    officer who is advanced expenrer by the Commission which later prove
                    to be unauthorized.

                          Secti.,n   7 of Article   6823a reads:

                                          “Sec. 6. Double travel~expense~s payments      ”
                                 .to state officials or employees are prohibited.   When
                                  an employee engages in travel for which he is to be
                                  compensated by a non-state agency, he shall not
                                  receive   any reimbursementfor    such travel from
                                 “authorized amounts in the General Approp’r.iation’ .
                                  Act..”

                    This’ pr’ovision bars “collecting  twice”for .the same expense; it does not
                    prohibit a state agency from replenishing an unrestricted     fund depleted
                    by legitimate   travel expense advances with treasury funds appropriated
                    to defray such expenses.      See Attorney General Opinions S-103 (1953) ;
                    WW-1207 (1961).

                           We understand. however, that the’Commirsion       currently treats
                    such~ advances as “loans” to its employeer and requires them as a con-
                    dition of eligibility  for such advancements (and to secure their repay-
                    ment) to grant to the Commission a power.of attorney authorizing the
                    Commission      to deposit to the agency’s checking account all salary and
                    travel warrants from the Treasury made payable to the employee.         The
                    agency also charges the employee the sum of $1.00 for each adtince made.

                           We think the characterization     of such advances as ,“loans” in erron-
                    eous.   The amounts legitimately     advanced are to pay liabilities  of the
                    agency; not those of the employee.       No,advancements   should be made in
                    excess of authorized expenditures, for contemplated agency expenses.. We
                    think it permissible  for the agency to,arrapge that amounts so advanced
                    not be paid again directly, to the employee in the form of Treasury travel
                    warrants,   but the Commission’s     claim on employee travel warrants will
                    never exceed the amount of the warrants to be issued so long as only
                    authorized  expenres have been advanced.




                                                           p. 340
. .   .


                                                                                     ‘.



      The Honorable      George   W. McNicl,    page 10 (H-74)




            Salary warrants cannot be handled the name way. When expensea
      are legitimately  advanced, they are to be ured for a specific public pur-
      pore by the employee as the reprerentative    of the agency.  The money
      cannot be lawfully ured to satisfy purely personal needr.    Such an ex-
      pense advance ir not a~.loan. A peraon’s ralary, however, is hip to do
      with as he wiahes.    It cannot be advanced to him by the agency because
      the advance would then conrtitute a personal loan to him of public funds
      to be ured for private purporer.

             If amount.9 for expended expenser’are  advanced in excess of the
      expenses which are later proved to have been actually authorized or
      neceerary.    we think the agency can recover the exce.sa from the em-
      ployees,   but we do not think salary warrant8 can be legitimately held
      in pledge, in effect, to secure such “loana. ” The agency cannot law-
      fully be in the burinear of lending public money to itr employeer,  and
      the holding of salary warrants as security for exceraea would tend to
      relax agency diligence in aaruring that advances cover only authorized
      agency expenser.

             Nor do we think there ir any authority for the agency to charge em-
      ployees a fee-for making advancer of authorized expenree.     Advances,   if
      legitimately  made, are made for the benefit of the agency and only inci-
      dentally benefit: the employee&    The coat of making such advancea, if
      necessary,   is an agency operating expense, pot properly chargeable to its
      employees as a “oervice. ”

             Rerponding to your inquiry, therefore,    it ia our opinion that the
      Texas Commission      for the Blind may, putruant to itr agency regulationa,
      lawfully advance to its employeer from unrertrjcted      donationr on hand
      authori,zed agency expenrer which the employee will incur on behalf of
      >he agency in the performance     of agency bueinerr, and may lawfully re-
      quire the employeea to whom ruch advances have been made to deposit
      with the agency Treasury travel warrantr:.isaued to pay for ruch expenaeo.
       But we are of the opinion that the State Commt#sion for the Blind is not
       authorized to require such employeer to deposit with tbe agency salary
       warrants iarued to them, or to charge a fee to employee6 for making such
       advances.    Our answer icl the same whether such advances are made be-
       fore or after the authorized expenses are incurred.




                                               p. 341
The Honorable   George   W. McNiel,       page I1 (H-74)



                                 SUMMARY

                  The State Commirrion for the Blind,
           pursuant to itr agency regul+tiona, may Lw-
           fully advance to itr employeer from unrertricted
           donetionr on hand, authorized +gency expenrer
           which the employee will incur or bar incurred
           on behalf of the agency in the performance of
           agency burineer, and may lawfully require the
           employee6 to whom such advances are made
           to deporit with the Agency Treasury travel
           warrantr irrued to pay for ruch expenaer. But
           the State Commirrion for the Blind ir not auth-
           orized’fo require ruch employees to deporit
           with the agency salary warrant0 irrued to them,
           or to charge a fee to employees for making ouch
           adtince#.

                                      Very truly your@,,




                                          JOHN L. HILL
                                                  General of ‘Texar




z
DAVID M. KENDALL,
Opinion Committee
                          Chairman




                                     p.    352
