       ..
,..’        .




                              OFFICE   OF THE ATTORNEY   GENERAL   OF TEXAS
                                                  AUSTIN
                  GROVER SELLERS
                  A~~ORNFI GLNERAL




                  ::           ,:
                Eonarable GeurgeB. Sheppard
                C-l ptroller of Public Accounts
                Austin, %xas
                                                                       Pi
                Dear sir:                        Opinion No. O-7072   .:' 1
                                                 Re:




                                                                                  ,




                                                        rms of this bill 8h8U
                                                          under the stuw condo-
                                                           Qemral Dspartmsntal

                                          lslanguagelimitthB     amount that
                                          agelnat the ap~o;n?iatlons made in
                                          eve mentioned, in payment of travel-
                                        a to Justices of the Courts of Civil
                             Ap$@.s, District Judgea 8nd Attorneys, and Meen-
                             bers of the Advisory Judlcl8.l.Council, mentloned
                             In said bill? And are such 0friea3     required to
                             obtain receipts for refund of expenditures  a8
                             provided for In the Gener8S l?epartmentelApproprl-
                             atlon Bill? The General Departmental Appropriation
          Bill limits the amount that Oan be paid to
          OfflC181S and employee8 t0 $4.00 per dey,
          and requires such off101818 to obtain re-
          celpta. And are such offlcl8ls, as mentioned
          in E. B. No. 215, limited to the mlleege as
          set out in (11)s of Seotlon 2 of the Oeuerel        1
          Departmental Appropriation Bill?"
           !?hefolloulog ar8 the Legislative eneotments generslly
pertluent a
          (1) Article 6823, 8s amended Acts 1931, 42ud Leg., .p.
372, oh. 218, Sea. 1, regarding traveling expenses reeds as fol-
lowsr
                  "The tl'SveliI@8Ildother llSOe888~ 8X-
          psuses iucurred by the various offioers, as-
          8istants, daputle8, clerks end other employees
          in the verloua dapartmants, institutions,
          bosrda;    oomml88ion8 or other subdi~i8loz~3of
          the StSt9 00VbrUm8Ut, in the 8OtiVe diSOb8rge
          of their duties shell ba awAs       8re -speoiSio8lly
          fixed and appropriated by the lsglalature lr:
          the genarsl approp~letion bills providing fok
          the.expen8es of the State ffov&uuent ~from yeer
          to year?Uhea appropri8tIon8 for;.travelingex-
          peM,ea~.qrsmade 8aJ:~8)l~8we~s'.~::p8paPeu~to
          offltilalaor employee8 for-:the~.-i.i$usb
                                                Ti& privately
          ovned 8utoznObileSShall b8 On 8 b88i8 o'f;SOtUal
          mileage trevaled for eaoh trip or all trips
          covered by the expanse aooounts submitted for
          payment or 8lloUSnOe from 8uoh epproprletlon8,
          and suoh papnmnt or 8llou8we shall be mede at
          a rate not to exoeed five (54) cents for eeoh
          mile Sotually traveled> and xl0eddItlon81 ex-
          pense Incident to the operetlon oS suoh eutomth
          bile shall be alloved."
          (2) The seoond paragraph U Seotlon 5 of the Judiclery
ApprOprlStiOu Bill, being Chapter 379 of the Acts 1945, 49th Le.g.,
p, 959, reads 88 follovsr
               "Traveling expenses paid to all offioers
          and employees under the terms of this bill shall
          be the same amount and paid under the same con-
          ditions as provided for In the General Department
          Bill."
Hon. Geo. B. Sheppard - Page 3



          ( ) Section 2 (1l)f of the Genersl Dep8rtmentelApproprl-
;;;;nWilll ?Acts 1945, 49th Leg., Ch. 378, p. 943-4) provides as
       :
               vnless otherwl8e 8p8oiilc8lly provided
          by the stetutea, it is provided that any of-     ,
          flaer or emplqee who trevels On Offioia1
          state business end who use8 his own oar while
          so doing shall b8 reimbursed for the u8e of
          said car on the basis of the total mileage
          travelsd during auy celendsr month et the
          follaving rsteg Five oents (54) 8 mile for
          the first thousand miles traveled, four cents
          (4#) a mile for the seoond thousand miles
          traveled, and three cents. (34) 8 mile for the
          third thOU88rtdmiles trsveled, end two aents.
          (2$!).8mile for eech mile tr8veled L.nexoeaa
          of three thousand mllea. Before the 00mp~
          troller ah811 i8SU8 eny W83?rSut fOr~MimbUESe-
          ment, the said officer or employee shall file-
          en 8ffidSVit -with the Coin&?rollershowing the
          point of origin end,the point of deatlnatlon~
          of e8Oh trip end the mileage aotuellg trsvebd.
          This provision shall also epply to lntra-citg
          mileage. If the Comptroller is of the opinlcn
          th8t aeid offloer or employee aId not t8bp th?
          shortest praotloel zyute, he ahall hepe'tha
          euthorlty and it shall b hiS~.dutyto OOmpUte
          the mlleege of the-shortest-prsotloel route,
          between the point of origin end destlnatlon~
          of eeoh trip vie Intermediate pOintS visited,
          8lldh8 ShSll iSSUe hls~werrant in reimburse-
          ment therefor on the b8Sis of the above rete.
          Ho moneys herein epproprleted ah811 ever be
          spent to pay the treveling expenses of eny
          State employee to eny type of oonventlon wlth-
          in the Stete or without the State except upon
          8dV6nCe written approval of the Attorney Gene@81
          as being for State's business."
          (4) Section 2 (1l)g of said General Departmental Approprl-
stlon Bill provides aa follows:
               "All employees traveling et the expense
          of the Stete are hereby limited to the amount
          of Four ($4.00) Dollera per dey expenses for
          meels sud lodging; it being apeclficallg pro-
          vided that the employees shall obtain receipt
          for all amounts expended for 611 items of lodg-
          ing and other expense except meals, and shall
Hon. Geo. H. Shepperd - Page 4



           file aeld receipts with their expense ao-
           comb,   which expe.xaeaooounts must be duly
           itemized and sworn to; Sad the Stete Comp-
           troller is h8reby expressly prohlblted from
           p8ylng suy expense 8ocOUUt8 whloh 8re UOt
           itemized and sworn to and SooOOIpSniedby
           receipts as herein provided."
          (5)  Seation 2 (12)f of the General Departmental Approprl-
etion Bill providesa
                 "It la expressly provided that the
           provisions of Subaeotlon llg of thla Aot
           with refewnos to limitation of 8mOwt of
           trevellng exp8nae ah811 not epply to the
           Governor, tha Lleuten8ntQwernor,    end the.
           member of Commlaalon8 who reoelve nonsalary
           or pep diem, when trsvellng in or out .of.
           the 8tStO. nor shall S8ld protiaion apply,
           t0 the Addutent GeWr81 8nd hia r8pZWent8-
           tlves when eppearlng lnU88hlngton, D. C..,
           before the V8k Depertmant, the Attorney Gedez-
           81 and his easlstenta whsn eppearlng be-'
           fore the Supmao Court of the United Skrtes.
           and Federal Agencies In Washington, D. C.,
           nor the iaambsraof tha R8llroad CommI8alon
           when eppearlng before tha Interstate Com;~.
           merae Oommlaalon or otherBedera1 Comk
           atlasion in Washington, D. C.;~'~no~,'tti%&-
           ber8 of the Stete Highway Ooaaalaaionand the
           Emoutlve Ofilcer when Sttending hoerings
           or con8ultlng Governmant egenalaa in Usshing-
           ton, 0. C.'

           We paso now t0 8 conalderetlon Of your SpbOlfiO question8
6s ap&ed    to the officers inquired about.

           A.   JUSTICES OF THE COURTS OF CIVIL APPEAXS.
          Article 1738, R.C.S. 1925, grants authority to the Supreme
Court of Texss to equalize the amotit of bUSlne8s upon the dcoketa
of the sever81 Courts of Civil Appeels, end requires the t the Jua-
tices of the Court to which suah cesea are transferred shall hear
or81 ergwent on such ~8~8s et the pleoe from which the cases have
been originally trenaferred. This A??tiClethen provides:
                "Thw eotual end neceasery trevellng end
           living expenses of the Justices of seid Courts
Hon. Geo. 8. Sheppard - Peg0 5




          In hearing or81 argument at the plaoe fro+
          whloh suoh case8 are tr8MferIWd shell be
          borne by the State, aud for payment thereof
          the Lsglalature ah811 mske appropriation."
          !Rw quoted provision wsa put in the statute in 1927 when
the Leglaleture flrat required the Jwtloee of the Courts of Civil.
Appeslr,~totravel to the place8 rrom which the 088ea were originally
transferred. Then in 1931 the Isglalature ewcted the 6amndlPentto
Artlole 6823 whioh pieced 6 llmlt8tlon on the epproprletlon which
could be made for~lmburasmant to employee8 or offlolela for the We
of prlvetely wned automobiles for nscesaery trsvel on Steteca bW%aa   :
  1 1iml.tt1        kn     t the Legislature under the well-eatebllahed
~$8   of l&,"~<~lt     ~%n"am8nded  Artlole i738 in 1933 end in
1941. Since no effort was m8de to take travellug expeaees of the..
JwtiOe8 In privet8 automobiles out of the lim~tatlon expressed in.
Artlola 6823, it must ba held thst they 8re bound by such llmlt8tlon.
3t8te v. Pr8etorl8n8, (Supmms Comt) 186 SW 26 973.
           The matter k'trevellng end llvlug expenses      other than for
the we of.prlvately wned eutomobile8 18 governed by another rule.
!Pherewas no general llmltatlon in exlatenoe in this mgerd et the
titPe Of thb enactment and I'e-eIlaOtmentof the “D(tO~SS8~     end BOtWl"
expens& prwialon, and thla provision of Artlole 1738 must pravsll.
Townsend we Terrell, 118 Tsx. 463;56 SW 26 1063; 39 Tex. Jur. 150,
Sea. 6?. Furthermore, ,ltis aettled lew .ln this State th8t a statute
general In Peture 08paOt be am8n;dsdby 8 "rlderN,ln the epproprletlon
bill. KOOm VI 3hSppSl’d,   1%  s.ti. 26 559.
          It followa that it is the opinion of this department that.
the Jwtloea of the Courts of Civil Appeals are entitled to r8lim-.
buraement for aetwl expenses not to exceed five oenta per mile for
eaoh mile aotwlly end naoeaserily traveled by prlvstely owned auto-
mobiles In the discharge of their offlolal duties; and for other
eatwl 8nd neoeraary travel and living SxpeMes without linitatlon.
They 8lw not limited $0 $4.00 per day for meels end lodging under the
provisiona of Section 2(11)g of the General hpSrtlwtd.81 Appropriati.&
Bill.
          There la DO provision la Artlole 1738 regulating the form j
or mathod of epplloatlon for reimbursement by the Jwtioes of the
Courts of Civil AppeSlS. It osnnot be doubted that the Legisleture,
in spproprlating money for such reimbursement, oan meke reasonable
regulations with reference thereto, 8s long   88   they do not confllot
with a specific statute.
.!.
      eon. 0.0. xi.sheppard - page 6



                 Zectlon 2 (1l)g of the General Departmental Appropriation
       Bill requires certain reoelpts to be obtained by "all employees
       trevellng at the expense of the State". C~rtalnly the Justices
       ere not employees, but ara officers. Hoverer, Sectlon 2 (12)f
       indicates that the Legislature in using the term "employeea" intended
       to include o?fi.~ers and employeea, for in that section it exempt8
       from the provlslona of "Subsection llg of thle Act with reference to
      'the llmltatlon of amount of traveling expense~vthe Governor, the
       Lleutenant-Qovernor, the Adjutant General, the Attorney General, end
      'oerteln others, both offloera an4 elPployee6. They are not, hovever,
       exempt from obtalnlng the reociiptr.
                Therefore, it la our opinion that-the Justlaes shell be    .
      required to obtain the receipts speolfled In the 'rider' to the
      General Departwntsl Appropriation Bill.
                B. DETRICT   JUDGES AIVDATTGqNsyS.
                Article 6820, regarding the oxpenaee of distrlot judgea
      and district attorneys vben engaged In the discharge of their of-
      fiolal dutfes, provldest
                      "All district judges and district attorneys
                vhen engaged In the discharge of,thelr offlolal
                duties in any aounty In this State other than the
                county of their residence, ahsll be allowed their
                aotuel and nedoeaseryexpenses while aotually en-
                gaged~in the discharge of.swh~dutlee, not to ex-
                ceed four dollara per day for hotelbllle, and not
                to exoeed four cents a mile vhen traveling by rall-
                road, and not to eureed twenty oents a mile vhen
                traveling by privately aonveyanoe, In going to and
                returning from the place vhere awh~dutles are dis-
                charged, traveling by the nearest practloal route.
                Sunh offloera shall ala0 receFve,the aatuel and
                necessary postage, telegraph and telephone ~expenaes
                inaurred by them in the actual dlsaharge of their
                duties. Such expenses shall be pald by the State
                upon the sworn and itemized account of eaoh dlatriat
                judge or attorney ontitled thereto, showing such
                expenses. In districts containing more than one
                county, such expenses shall never exoeed In any one
                genr $lOO.OO for eaoh county in the distrlot; pro-
                vided that no district judge or attorney shall re-
                ceive more than $600.00 in any one year under the
                provlslona of this ert1ol.e. The aacount for said
                servioes  shall be recorded in the official minutes
                 of the district court of the county in which such
                 judge or attorney resides, respectively."
Hon. Gee. Ei.Sheppard - Page 7



          This statute was enacted in ,I923 (Acts 1923, pb 50).
         -Article 6823, aa has been stated, vaa amended in 1931 to
restrict the allwancea for traveling expenses for the use of privately
owned automobiles to an amount .not in excess of five cents a mile.
This latter statute was oonstrued by Couference.Opinion No. 2934,
dated Hovember 14 1933, (Biennial Report of the Attorney Qeneral,
1932-1934, p.,3321 to apply to end limit the reimbursement to dis-
trict judges and'dlstrlot attorneys not to eraeed five oenta per
mile for each mile actually and neoessarily traveled by private oon-
veeyeme in the discharge of th?ir offloial duties  outside of the
counties of their residence.
          It will be aeon thst AH&ale 6820 a'llws the,dlstrict 3
judge8 and district attorneys "actual end necsaeary expenses . . .
not to exceed four dollarclper day for hotel bills." Thls is
speoiilc legislation, and, for the reasons stated in the preceding
aectlon-of -this opluion, takes precedence over the provlslous of
the 'rlder"'to the General Departmente1 Appropriation Bill. Also,
Article 6820 provides that "Such expenses shall be paid by the State
upon the aworn and ltemlsed aocount of each district judge or et-
tommy entitled thereto,.shwiug such expensea."~ This provision
vi11 iMe.preoedence over the Appropriation Bill "rider' provision
requiring receipts for certain items of expense.
          xt 1s the opinion of this department that district judges
and district attorneya are entitled to reimbursement aa folltis:
(1) not to exceed'five cents permile for each mile'actually and
necesscir5.ly
            traveled by private conveyance in the discharge of their
cfficlal duties outside of the countles $% their~resldence; (2) not
to exoeed four dollars a day for hotel blllsr subject to the statutory
llmltatlon that in districts containing more than one county, the
total of the enumerated expense8 ahall'never exceed in any one year
$100.00 for each county in the district, and that no dlstrlot judge
or attorney shall receive more than $600.00 in any one year under the
provlslom~of said article. It la the further opl.aion,ofthis depart-
ment that euch district judges and attorneys shall not be required
to produce the receipts referred to in the "rider" to the General
Departmental Appropriation Bill.

          C.   ADVISORY JUDICIAL WlJmCIL.
          Regarding the expenses allwable to members of the Advisory
Judicial Council,,Article 2328a, enaoted in 1929 (Acts 1929, 41st Leg.,
1st c. S., p. 51, ch. 19), Section 7, provides:
HOR. oeo. H. sbappard- Page 3



              %o ._
                  wlaber
                      - or
                         __theC0umcLlahell_racelw
                                              _ a?.
          cc4qmmstrcarwnis aemxcbs as sum IDbmtw,nut
          shall be peld his actus trewliag  end other moos-
          sary expenses lmurred in tlm diucberge of his
          dutlm rls euchsambartobe psld upcnveriiled,
          lteiiiwa aoccuut rpprcwd by the Presidentof such
         CCtlMil.'
             Also, Section2 (12)f of the GeneralA~Oprletlcn          BllL
apaclfiosll~-prmdear
                  "It is expre832yprovidedtbeg the pxwlaious
          of SubsectlCit    llg ai this Act with mfereuce to
          ~llaltationotaoouut       of tzevell.ngoxpenme ahsll not
          applyto...          ttm wmbew or CamissioRa vho m-
          ceiws no aslaryor par diem, vEen ?xswLl.ngIn e
          out.orth State. ...*
               Thl.scouDoil%s, inccntesplsticu~lev,a Ccausis-
afar rtmlcow8 vlthln the expressexeaptlon quoted. It :s Was opinion
or this depmtmoat that the maborn of ,tIaoAdvlrciry JudlctilCoumil
sm ontitled  to xMabursewot   SOP (1) not to exueedflw cents per
ail10for esch ad.16ectusllytraveled by pr vote cw~nce     in the
diachrxvp of their duties a8 such member: tArt. 6523 ccctrols); (2)
othermceaaeryexpeuaea soincrPrsd,wl~houtlimltstlon. It !a cur
rurttmrop1aloa-fbt awh mwwrs em uot wqulred to prodwe the
receLpt8 refereedto La the %der" to the Geaeml 9epsrtmsntel      Ap-
pxwprlst1oRm11, s1mo Avtto1e~2328sspec%i3.c8l~y~pm?ldes    that   swla
lxpeusesahellbepsld "upcaw96riiLed.    ltem%sed8cOOUnt4tpprcnmdby
the Pmsldent aC sue&Ccumit".
               Trustingthst the fwegotng      sufiioleatly
                                                         enswra JW
rme*     we are


                                ATTC~GlWERALWTEXAS
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