                   THE         ATTORXEY    GENERAL
                                  OF TEXAS

                                       September       14,     1987




Mr. James A. Lynaugh                                         Opinion    No.   JM-785
Interim     Director
Texas    Department     of Corrections                       Re:      Whether     employees       of the
P. 0. Box 99                                                 Department       of   Corrections         are
Huntsville,       Texas   77340                              entitled     to administrative         leave
                                                             or per     diem     and    reimbursement
                                                             for travel       in   certain      circum-
                                                             stances

Dear    Mr.   Lynaugb:

        You ask whether  certain   employees     are entitled       to “administrative
leave,”    per diem,  and reimbursement      for travel.        Specifically,      you ask
whether    employees  who are subpoenaed       to testify     in court        are entitled
to those    benefits.

        We will    first     address    your question        about    “administrative            leave.”
Each biennium        the appropriations           act sets      out the       types      of leave         to
which state     employees        are entitled.         Under the appropriations                act      for
the 1986-87      biennium,       state    employees     sre entitled        to paid sick             leave
and vacation         and to      leave      with pay     under other          specified          circum-
stances.      Acts     1985,     69th Leg.,     ch.     980,    art.    V,    58, at V-36.              See
also    General    Appropriations         Act,    Acts    1987,    70th     Leg.,       2d C.S.,        ch.
78,art       V,    58,     at    V-41     (comparable        provisions         for      the     1988-89
biennium).         The     appropriations         act     also     provides         for     “emergency
leave”:

                   The administrative             head      of     an     agency       shall
               grant    an emergency        leave    to an employee            because     of
               a death     in    the employee’s         family.           The death        of
               the    employee’s         spouse,      or      the     employee’s           or
               spouse’s      parents,     brothers,       sisters,        grandparents,
               grandchildren          and      children          shall         constitute
               adequate         need      for       emergency           leave.            The
               administrative         head     of    the      agency       may     make      a
               determination          on    other     reasons         for       emergency
               leaves    and shall       grant    an emergency          leave,     when in
               his determination,           the employee         shows good cause.

d.    at 18(d).    We assume that you mean “emergency              leave”    by the                use     of
the term     “administrative      leave.”      cf.   g.       at SSCL,    (providing                     for
leave   without   pay,    subject   to certain     provisions).




                                             p.   3713
Mr.   James    A.   Lynaugh     - Page     2    (m-785)




        You state     that     it is      the department’s           position     that    an    employee
may be granted        paid       leave    to testify         in a court        action     only   if    the
appearance       is in his official           capacity.          If an employee         is called        to
testify      in his official         capacity--in        other     words,     as a state        employee
qua state      employee--his         appearance       is part      of his job,       and he need not
take leave       of any sort.          See Attorney        General      Opinions     V-1210      (1951);
O-5803     (1944).       Whether       asubpoena           requiring         a state      employee       to
appear     in co”rt     in    his private         capacity       would constitute          good     cause
for’the      department      to grant      emergency       leave     is a question        left   to    the
discretion       of each agency.

       You also    ask whether      an     employee      subpoenaed         to testify        in     CO”rt
is entitled      to a     per diem       allowance       for      the court          appearances          in
question.      The appropriations         act provides          that     per diem reimbursement
is for “expenses       incurred      in official       travel.”          Acts     1985,    69th      Leg.,
ch. 980,    art.     V, 114, at       V-43.       Unless     the      employee       in question          is
appearing     in his capacity        as a      state   employee,         he is not entitled               to
per diem reimbursement.            See also       Acts     1985,      69th Leg.,        ch 980,        art.
V, S2Ce) (prohibiting           payment      of     per diem        to a      estate    employee         who
receives     witness      fees     for     a     court     appearance           in     his      official
capacity).

       Finally,       you ask whether       sn employee      is entitled      to reimbursement
for    the      transportation        expenses        involved      in   making     the       court
appearances.          The appropriations          act provides        for reimbursement           for
“costs    of transportation          on official      business.”       Acts   1985,   69th Leg.,
ch 980,    art.     V, 513, at V-41.         Again,     if an employee      is not called           to
be a witness         in his capacity      as     a state    employee,     he is not      entitled
to reimbursement          for travel     expenses.

                                               SUMMARY

                   A state    employee        is not entitled           to per        diem
               reimbursement       or reimbursement          for travel        expenses
               for    a   subpoenaed       tour t      appearance          unless       the
               employee      appears      in     his     capacity       as     a    state
               employee.      Whether      a subpoena          requiring       a    state
               employee      to    appear       in    court      in    his       private
               capacity    constitutes        good cause       for   the      emergency
               leave    is a question       left     to the discretion           of each
               agency.




                                                          J M-da
                                                              very   truly   your    ,



                                                                    A
                                                              JIM        MATTOX
                                                              Attorney    General        of   Texas




                                                  p.   3714
    Mr.   James    A.   Lynaugh    -   Page    3       (JM-785)

i




    MARY KELLER
    Executive Assistant           Attorney         General

    JUDGE ZOLLIE STRAKLEY
    Special Assistant Attorney                General

    RICK GILPIN
    Chairman,  Opinion        Committee

    Prepared      by Sarah    Woelk
    Assistant      Attorney    General




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