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                                  ORNEU            ENERAL




                                 July 28,   1958


        Honorable Bill Allcorn         Opinion No. WW-478
        Commissioner
        Qeneral Land Office            Re:    Questions concerning per
        Austin 14, Texas                      diem and travel allowances
                                              for employees of Qeneral
                                              Land,Offlce - Sectlone 29,
                                              30 and 31 of House Bill No.
                                              133, Acts of the 55th Legls-
                                              lature, Regular Session,
        Dear Mr. Allcorn:                     1957.
                  We have received your letter of April 29, in which
        you request our opinion on two questions concerning travel
        expense allowance for employees of the General Land Office,
        which reads as follows:
                  "1 .   Case Number One.
                     "John T. Halsey Is employed by this office
                  as a geophysical Inspector and his headquar-
                  ters are in Palaclos, Texas. Mr. Halsey was
                  assigned as a seismic Inspector In the Qulf
                  of Mexloo aboard a boat operated by the Shell
                  Oil Company and Instructed to report to that
                  company and board the boat In Aransas Pass,
                  Texas. In order to do so, he drove his car
                  from his headquarters In Palaclos, Texas, to
                  Aransas Pass, leaving the car parked at the
                  docks at Aransas'Pass while on duty in the
                  Qulf'of Mexico. The boat, at the close of
                  Its seven day working period, did not return
                  to Aranaas Pass, but Instead put In at the
                  nearest port which was Freeport, Texas, from
                  which work was to be conducted during the
                  next work period.
                     "On February 12, 1958, Mr. Halsey travel-
                  ed by bus from Freeport to Aransas Pass,
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Honorable Bill Allcorn, Page 2 (W-478).


          picked up his car and drove back to Freeport,
          again boarding the boat for work In the Gulf
          of Mexico.
             "In submitting his travel expenses, Mr.
          Halsey Included his bus fare In the amount of
          $4.50 and cab fare of 50$ from the bus sta-
          tion In Aransas Pass to the docks. The State
          Comptroller has refused to approve this ex-
          pense account, the $8.00 per diem account for
          February 12, as well as travel expenses for
          the 1.58miles involved In moving the car from
          Aransas Pass to the new docking location In
          Freeport.
     "While the amount of money here Involved Is compar-
     atively small, your opinion as to whether or not
     Mr. Halsey should be allowed his travel and per
     diem expenses is needed since the procedure followed
     by Mr. Halsey is quite often necessary for geophysi-
     cal Inspectors.
          "2.   Case Number Two.
             "J. M. Morgan is also employed by this
          office as a geophysical Inspector and his head-
          quarters are In Bay City, Texas.
             "On March 1, 1958, Mr. Morgan was assigned
          to seismic inspection work with the National
          Geophysical Company In San Antonio Pay and the
          port being used by the Company was Seadrift,
          Texas. There were no accommodations In Sea-
          drift, the nearest accommodations being in
          Port Lavaca. Mr. Morgan could have stayed In
          Port Lavaca at a cost to the State of $10.52
          per day ($8.00 per diem allowance plus mile-
          age) or he oould return to his headquarters
          daily at a total cost to the State of $9.38
          per day~for mileage.
             "The particular section here Involved is a
          rider In Section 31 prescribing In somewhat
          ambiguous language that when it Is cheaper, a
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        Honorable Bill Allcorn, Page 3 (W-478).     ~'


                 traveling State employee may'return to his
                 headquarters dally. The rider goes further,
                 however, and provides that expenses on a
                 dally basis shall not exceed the per diem
                 allowance of $8.00. Under astrict lnterpre-
                 tatlon of this rider, I.e., a limitation of
                 $8.00, the employee, if'he did not want to
                 lose money, would have been forced to stay in
                 Port Lavaca at a greater cost to the State.
                 The question Is, then, whether the Leglsla-
                 ture Intended that Section 31 be given this
                 strict Interpretation and thus result In a
                 greater cost to the State.
                  "Here again, your official opinion as to wheth-
             er or not Mr. Morgan should be allowed his expenses
             Is needed because there are numerous,instances where
             geophysical inspectors cannot find suitable lodging
             in the port where the ship may be."
                  The General Land Office assigns seismic Inspectors
        to private exploration boats manned by private crews and oper-
        ated under company instructions In areas and upon schedules
        of the company's option. The inspector has no control over
        the operations, schedules, ports of departure or ports of
        return, but merely accompanies the boat on its exploration,
        and inspects and reports on the work done. When a seismic
        inspector is assigned to a particular boat for a certain per-
        iod of time, his duties may require him tc be in several ports
        during the course of his Inspection.
                  Your supplemental request shows that Land Office
        procedure requires the Inspector tc take certain records to
        the port of departure in order to have them available for his
        work. However, Land Office procedure prohibits the Inspector
        from taking any records, maps, etc. with him on the boat,
        except the actual dally report he is then completing. (This
        is to avoid the possibility of losing the information already
        compiled In the event of some disaster). It further seems
        apparent that It would be impractical to rent an office or
        hotel room In which to keep the records and maps, because the
        Inspector usually stays out In the Gulf of Mexico for a period
        of seven to ten days. You further stated, "These items . . .
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Honorable Bill Allcorn, Page 4 (W-478).


are left locked In the cars".   Your supplemental request says,
In part:
            "The working program of geophysical Inspectors
       Is unpredictable because of weather and other con-
       ditions and the inspector often finds It necessary
       to make an overnight trip to move his car, his per-
       sonal belongings, maps and other records to,,a
       different location along the coast. . . .
          Sections 29, 29(f), 30(a) and 31(b) of House Bill
133, Acts of the 55th Legislature, Regular Session, 1957, are
applicable in determining the propriety of making the travel
expense and per diem payments In question.
          The expense account of Mr. Halsey shows that on the
12th day of February, 1958, he traveled from Freeport to Aran-
sas Pass to pick up his vehicle (left there when he was work-
ing out of Aransas Pass). Corresponding travel allowances are
claimed for bus travel to Aransas Pass, taxi fare in Aransas
Pass and mileage back to Freeport. The requirements of a
seismic inspector are somewhat peculiar in that neither the
Inspector, nor the State has any control over where his work
will take him, or, Indeed, where any one boat trip will take
him.
          Since this assigned duty required him to leave his
designated headquarters, travel to and be In Aransas Pass to
work with the boat while there, and to have certain maps and
records with him which could not be taken out on the boat; and
also to travel to and be In Freeport to work with the boat
while there and have the maps and reaords with him there, as
well, we are of the opinion that the travel to Aransas Pass and
then to Freeport was necessarily incident to such assignment,
In those Instances where it was necessary to use his automobile
In which to safely keep such records. Whether it was necessary
to leave the car at the dock In which to store the records Is
a fact question, upon which this office cannot pass. We do
not conceive It to be the Intent of the Legislature to penalize
a State employee for performing his assigned duties in the only
manner possible or practical under the circumstances. We are
of the opinion that the travel allowance should be paid.
            From the expense account, It is apparent that on
.




    Honorable Bill Allcorn, Page 5 (W-478).


    certain days the boat did not go out, eftherbecause of bad
    weather or because the crew had a day off. During this time,
    the Inspector stood by awaiting another trip. The fact that
    he was not able to inspect was entirely beyond his control or
    the control of the State. He Was required to be away from
    his designated headquarters on an official assignment during
    this time, and he, therefore, should receive his per diem
    allowance. It may be true that such an employee could be
    required to return to his designated headquarters during
    these Idle periods, but this 1s an administrative decision,
    and not for our consideration here.
              !Theemployee In question arrived In Freeport on
    February 9, 1958, and was required to stand by on the lOth,
    11th and 12th of February. He left Freeport for another
    Inspection on February 13th. In our opinion, the employee
    would be entitled to per diem for the 12th,of'February, just
    as he was on the 10th and llth, since his assignment was
    incomplete, and he had not officially returned to his desig-
    nated headquarters.
              Insofar as Case Number Two Is concerned, Section
    31(g) speclflcally provides that:
             "Except that when it Is cheaper, a traveling
        state employee may return to his headquarters
        dally or on the weekend rather than stay out at
        State's expense; cheaper--as It applies to dally
        round trips shall be determined by computing the
        mileage and per diem on a dally basis and the
        entire mileage and per diem on any one dayTall
        not exceed the per diem allowance of $8.00.
        . . .    (tiphasls added).
              Under certain circumstances It might be advantage-
    ous to the State to have the mployee return to his designated
    headquarters, rather than seek lodging at or near his post of
    duty. If the employee returns to his designated headquarters
    each ni t, he may be compensated, but the provisions of Sec-
    tion 31$"
            g) make It clear that the maximum he may be paid Is
    $8.00. The provisions of the Appropriation Bill are explicit
    In this respect. We are of the opinion that, even though
    particular Instances may arise wherein such provision forces
    the employee to remain away from his designated headquarters,
Honorable Bill Allcorn, Page 6 (W-478).


thereby incurring expenses greater than if he came home each
night, this Is for the determination of the Legislature In
promulgating the rules and regulations under which State
employees are reimbursed their travel expenses, and we are
unable to write exceptions into the Appropriation Bill. The
Section to which you refer must be strictly aonstrued, and
the result Is as you point out in your request.
                             SUMMARY
            The travel allowances and per diem claimed
            by a selsmlc Inspector should be paid when
            the travel was necessary to the perform-
            ance of his assignment, even though it may
            have been occasioned by circumstances be-
            yond his control or control of the State;
            when a State employee returns to his
            designated headquarters daily or on the
            week end, rather than stay out at State's
            expense, the entire mileage and per diem
            on any one day shall not exceed the per
            diem allowance of $8.00.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas

                               By&&^""3~&
                                  Tom I. McFarllng
TIM:jl                            Assistant
APPROVED:
OPINION COMMITTEE
L. P. Lollar, Chairman
Wayland C. Rivers, Jr.
Jot Hodges, Jr.
Riley Eugene Fletcher
J. W. Wheeler
REVIEWED FOR THE ATTORNEY GENERAL
BY:
     W. V. Geppert
