          THEA~ITORNEYGENEEAL
                      OF'1C'EXAS




                       June 2, 1961

Dr. J. W. Edgar              Opinion No. WW-1072
Commissioner of Education
Texas Education Agency       Re:   Computation of expense
Austin, Texas                      accounts where an employee
                                   returns to his designated
                                   headquarters at the end~of
                                   the working day before com-
                                   pleting his assignment and
                                   then returns to his temporary
Dear Mr. Edgar:                    post the following morning.
          Your letter has been received requesting an opin-
ion of this office concerning the computation of expense
accounts where an employee travels to his temporary post
and returns to designated headquarters the next day but also
makes an unauthoriaed round trip to designated headquarters
at night.
          In determining the intent of the Legislature with
regard to travel expense and per diem allowance for State
employees, we must look to the wording of Acts 56th Leg. 3rd
C.S. 1959, Ch. 23, p. 442, hereinafter referred to as the
Appropriation Act.
          Section 32, Subsection "a" reads in part as follows:
               "a. The rate of such reimbursement
          shall be eight (8) cents per mile for
          the employee's personally owned convey-
          ance. None of the moneys appropriated
          for travel expense for mileage within
          the State of Texas for use of personally
          owned automobiles shall be expended un-
          ;;ss$e   shorteit route between points
                 . . . .
          Section 33, Subsections 'larr,
                                       "c", and 'Id"read in
part as follows:
                                                        ‘C   .




Dr. J. W. Edgar, page 2       (WW-1072)

               "a. A per diem allowance for in-
          State travel shall mean a flat daily
          rate of Nine Dollars ($9)in lieu of
          actual expenses incurred for meals
          and lodgings. The per diem allowance
          shall commence at the time the employee
          leaves his designated headquarters and
          cease when the employee returns to his
          headquarters.
                  1'. @ .
               “C.  An employee whose duties require
          travel for periods which do not require
          him to sleep away from his designated
          headquartera shall receive a partial per
          diem allowance for meals rather than a
          per diem allowance. Such partial per
          diem allowance shall be determined by
          the head of the agency and shall be based
          upon a reasonable estimate of the actual
          cost of the meals involved. In computing
          the partial per diem allowance, the travel
          period shall commence at the time the
          employee departs from his designated head-
          quarters. In no event will the partial
           er diem allowance exceed Four Dollars
          7$4)per day.
                  “4.   0.e
               "When it is cheaper, a traveling State
          employee rnx return to his headquarters
          daily or on the weekend rather than stay
          out at State's expense and by so doing,
          the expenses involved shall be.considered
          as State business: cheaper--as it applies
          to daily round trips shall be determined
          by computing the mileage and per diem on
          a daily basis and the entire mileage and
          per diem on any one day shall not exceed
          the per diem allowance of Nine Dollars
          ($9) It is within the province of such
              l

          agency head to require the employee who is
          away on official State's business to report
          back to his designated headquarters daily
.




    Dr. J. W. Edgar, page 3 (WW-1072)


              or on weekends if he deems it necessary
              to expedite the completion of the pur-
              pose for which the expenses are incurred.
              The employee will clearly show on his ex-
              pense account the hour and the date he
              returned to his headquarters and the hour
              and date he leaves his headquarters."
              (Emphasis added)
              If an employee actually travels from his designated
    headquarters to his temporary post, completes the purpose for
    which the expenses were incurred the next day, and returns
    the next day from his temporary post to headquarters, certain
    legitimate travel expenses are necessarily incurred in connec-
    tion with his job regardless of where he spends his evenings
    while on aesignment. Under these circumstances, there is
    nothing in the appropriate statutes, quoted above, which would
    operate to keep an employee from receiving the expense allow-
    ances provided in Section 32, Subsection "a" and Section 33,
    Subsection rtal'
                   of the Appropriation Act, quoted above, for
    travel expense incurred in going to and from his temporary
    post, including the full amount allowed for expenses on a per
    diem basis. It is clear that an employee is fully entitled
    to the expenaes for mileage in going to his assignment and
    return and there is nothing in the Appropriation Act which
    would preclude such an em loyee from receiving his full share
    of the nine dollar ($9.00P per diem allowance as set out in
    Section 33, Subsection "a". There are no limitations on the
    payment of these legitimate expenses so long as the shortest
    route is taken and so long as the employee is traveling on
    state business. Whether he stays at the temporary post at
    night, returns to headquarters for personal reasons, or goes
    elsewhere is irrelevant so long as he performs his required
    duties during working hours. His activities after hours have
    no bearing on the payment of the above mentioned legitimate
    travel expenses even though he is not entitled to mileage in
    making unauthorized trips to headquarters and back to his
    temporary post.
              It is important, also, to point out that an employee
    may be paid, under Subsection "d", for travel expenses incurred
    in returning to headquarters daily to spend the night and back
    to the temporary post the next morning when one of the follow-
    ing exceptions exist. When it is t'cheaper"for the employee
Dr. J. W. Edgar, page 4 (WW-1072)


to return to headquarters daily from his temporary post,
the employee may elect to do so and be paid for travel
expenses incurred, computed in the manner set out in Sec-
tion 33,Subsections "c" and "d", quoted above. An em-
ployee may also be paid for daily round trips to head-
quarters, under Subsection "d", when he is required to
do so by his superiors. Unless one of these situations
exists, the expenditure for travel to and from headquarters
daily is not authorized and cannot be paid. However, the
two exceptions are distinguished from and in no way affect
the payment of legitimate expenses incurred in going from
headquarters to the temporary post and return to headquar-
ters on completion of work the following day, including the
full per diem payments that the employee may be entitled to
when away from home at night on official business, whether
he actually spends the night at the temporary post or not.
          Therefore, it is the opinion of this Department
that under Section 32, Subsection "a" and Section 33,Sub-
section "a" of the Appropriation Act, an employee is en-
titled to expenses incurred in going to his temporary post
and return, including the full per diem allowance, even
though he may, on his own volition and at his own expense
return to headquarters at night for personal reasons. He
may also be entitled to expenses involved in returning to
headquarters at night if he ca.ndo so "cheaper", and elect8
to do so, to be determined in the manner set out in Section
33,Subsections "c" and "d" of the Appropriation Act, or if
he is required to return by his superiors.
                           SUMMARY
          An employee is entitled to expenses
          incurred in going to his temporary
          post and return to designated head-
          quarters the next day, including the
          full per diem allowance, even though
          he may, for personal reasons, return
          to designated headquarters at night
          at his own expense. If the employee
          is required to return daily to desig-
          nated headquarters by his superior or
          if it is "cheaper", to be determined
          as set out in Section 33,Subsections
          "c" and "d" of the Appropriation. Act,
Dr. J. W. Edgar, page 5 (WW-1072)


            an employee may be paid for expenses
            incurred in returning to designated
            headquarters daily,
                               Very truly\yours,
                               WILL WILSON
                               Attorney General of Texas



                                  Iola Barron Wilcox
                                  Assistant
IBW:afg/bmc
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Lewis
Robert Rowland
John Reeves
W. Ray Scruggs
;;VIEWED FOR THE ATTORNEY GENERAL
  : Morgan Nesbitt
