          TRCEATTOECNEY              GENERAL




                       July 11, 1966


Mr. Jess M. Irwin, Jr.              Opinion No. C-720
Executive Director
Texas Department of Mental          Re: *Legality of per diem
 Health and Mental Retardation           expense claimed by cer-
Box s - Capitol Station                  taln employees of Texas
Austin, Texas                            Department of Mental
                                         Health and Mental
                                         Retardation under
Dear Mr. Irwin:                          stated facts.
          In a recent letter you have requested an opinion In
regard to the above stated matter. We quote, in part, from
your letter as follows:
         "Two employees of this department departed this
    headquarters at 5:30 p.m. on May 1 (Sunday), 1966 to
    perform official .state business at the Terre11 State
    Hospital during the working hours of Monday May 2nd,
    Tuesday May 3rd and Wednesday May 4th. On the nights
    of May lst, 2nd and 3rd these employees spent the
    night in the Lamplighter Motor Inn. . .Dallas, Texas,
    . . .approximately 25 miles from the Terre11 State
    Hospital and obtained a receipt from that place of
    commercial lodging which was submitted to the Comptroller
    . . .with their. . .Travel Voucher. . . . No mileage for
    travel each day from the hospital to the motor inn was
    claimed. The Comptroller. . .has refused to pay this
    per diem expense on the grounds 'Claimants left post
    of duty each day to travel to Dallas. From time left
    Terre11 until returned next day considered personal
    business."'
          According to the Comptroller's Office the basis for
the rejection is Section 9 of Article 6823a, Vernon's Civil
Statutes, and Attorney General's Opinion O-4923 (1942).
         Section 9 of Article 6823a Is quoted as follows:
         "Neither a per diem allowance nor partial per diem
    allowance as set out in the General Appropriations Acts
    shall be allowed for the period of time on those days
    when an employee Is:

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Mr. Jess M. Irwin, Jr., page 2      (C-722)


            "(1)   At   his official designated headquarters.
            "(2)   Absent from post of duty for personal reasons.
            “(3)   Absent from post of duty for any reason not
                   connected with duties of the agency by which
                   the employee Is employed.
            "(4)   Away from designated headquarters for a period
                   of less than six consecutive hours."
          The above quoted section of Article 6823a must be
construed in conjunction with the last appropriation act, H.B.
No. 12, acts of 59th Legislature, Regular Session, Chapter 720,
page 1679.
          Section 15 of H.B. 12 (Travel Regulations) pertains
to per diem allowance and is quoted, in part, as follows:
         "a . Rates of allowance. Each employee traveling on
    State  business inside the boundaries of the State of Texas
    ,shall be allowed, in lieu of actual expenses incurred for
    meals and lodgin    a flat per diem rate of not to exceed
    twelve dollars ($'12) provided there is attached to his
    expense account when submitted a 'Paid' bill or receipt
    from a commercial hotel, motel, or other commercial
    lodging establishment for his lodging, but provided
    further that if such receipt Is not submitted, the flat
    per diem rate shall not exceed seven dollars ($7)."
          Attorney General's Opinion No. O-4923 (1942) holds
that expenses incurred in the reasonable line of travel are
incurred while traveling on State's business, while expenses
incurred outside the reasonable line of travel are not incurred
while traveling on State's business. Opinion No. O-4923 is
not applicable to the present fact situation.
          It is our opinion that the per diem allowance claimed
by the employees in question is a proper and legal claim. The
facts disclose that the employees were absent from their designated
headquarters to perform official duties of the agency by which the
employees were employed. At no time were the employees absent for
personal reasons and at all times the employees were absent from
their designated headquarters for reasons connected with their
official duties. These employees were not absent from their "post
of duty," as you state that they worked at the Terre11 State
Hospital on the 2nd, 3rd and 4th days of May from 8 a.m. to 5 p.m.



                                 -3478-
Mr. Jess M. Irwin, Jr., Page 3 (C-722)


                          SUMMARY
          Under the facts submitted, the per diem allowance
     claimed by the employees of the Department of Mental
     Health and Mental Retardationwas incurred as a result
     of State business and Isa proper and legal claim.
                               Very truly yours,
                               WAGGONER CARR
                               Attorney General of Texas



                               f+!ikcz:oya
                                      ‘cby
                                    Assistant Attorney General
JCMcC:sck
APPROVED:
OPINION COMMI'ITEE
W. V. Geppert, Chairman
Pat Bailey
Malcolm Quick
Paul Phy
Sam Kelley
APPROVED FOR THE ATTO#!NEYGENERAL
BY: T. B. Wright




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