                                  August    19,   1971


Honorable Robert S. Calvert                Opinion       No.   M-939
Comptroller   of Public Accounts
State Finance Building                     Re:     Questions  relating to certain
Austin,  Texas                                     travel expenses of State em-
                                                   ployees,  as provided for in Senate
                                                   Bill 11, 62nd Legislature,    R. S. ,
Dear Mr.    Calvert:                               1971.

          Your    recent letter requesting the opinion of this office         concerning
the referenced     matter provides,   in part, as follows:

                “Article V, Section 12a, Second Paragraph of
           Senate Bill 11 of the Regular Session of the Sixty-
           Second Legislature   provides as follows:

                     ‘Reimbursement     for out-of-state    trans-
                 portation for the use of personally      owned auto-
                 mobiles together with per diem shall never
                 exceed the cost of commercial        tourist class
                 transportation   from the nearest airport and the
                 per diem required had the employee traveled
                 by such conveyance.       The determination      of the
                 allowance due owners of personally         owned auto-
                 mobiles in compliance      with this paragraph shall
                 be as follows:    (1) Per diem shall be determined
                 by the use of an airline schedule which would
                 have sufficed for the performance        of the official
                 business.    (2) Expenses of transportation        to air-
                 fields from points where commercial          air trans-
                 portation is not available    shall be allowed in ad-
                 dition to the cost of first class commercial         air
                 transportation.     (3) When additional passengers
                 are conveyed on out-of-state       trips in personally
                 owned auto.mobiles they shall receive as their




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                                                                                            .

Honorable     Robert     S. Calvert,   page 2                  (M-939)



                 expenses per diem based on automobile travel
                 time.    (4) Persons  traveling to points not served
                 by airlines  shall receive mileage and per diem
                 based on actual miles traveled and other expenses
                 as authorized ekewhere      in the Act for out-of-state
                 travel. ’

                  “An examinati,on of this provision will reveal two things:
            (1) that it provides,    in the first part of the paragraph,    that
            reimbursement       for the use of personally   owned automobiles
             shall never exceed the cost of commercial        tourist-class
            transportation    from the nearest airport and (2) that it pro-
            vides that where a person resides at a place not served by
            an airfield,   he shall be entitled to be reimbursed      for mile-
            age to the airport and the cost of first-class      air transporta-
            tion.
            -

                  “You will note that in addition to the transportation     al-
            lowances in Section 12a, the second paragraph,         the Legis-
            lature has, in four instances in this paragraph,       limited the
            employee to a per diem allowa.nce which would have sufficed
            had he actually flown by commercial       transportation.     An ex-
            amination of the Appropriation     Act will reveal that under the
            heading,   “Per Diem Allowances      - Section 13a, ” the second
            paragraph provides as follows:

                     :Each employee traveling on state business out-
                 side of the boundaries   of the State of Texas shall re-
                 ceive reimbursement     for the actual cost of meals,
                 lodging and incidental expenses,     not to exceed thirty-
                 five ($35. 00) per day.   When both in-state and out-of-
                 state travel occur in the same calendar day, the rate
                 of travel allowance for all travel in, that day shall be
                 in an amount not to exceed thirty-five     dollars ($35. 00)
                 per day. ’

                 1,    . .

                 “Article    V.,   Section     12 b provides   in part,   as follows:




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Honorable     Robert        S. Calvert,   page 3                 (M-939)




                      .
                       I
                        . . The       rate of reimbursement    for any
                 employee for         whom funds are appropriated     in
                 this Act, for        air transportation shall be tourist
                 class unless        tourist class is not available  . . . ’

                 “I        seek your advice   on the following    questions:

                  “( 1) What interpretation       should be placed upon
            Article V, Section 12a, Second Paragraph as to what
            should be allowed to State employees           and officials who
            use their personally       owned automobiles       in traveling
            out-of-state:      the cost of tourist transportation      in one
            instance,     first-class   in another,   or first-class     or tourist
            in both instances?

                 “( 2) What interpretation  should be placed as to the
            amount of per diem allowed while traveling outside of
            the State in their personally  owned conveyances?

                 “(3) If you hold that the $35. 00 a day provision under
            the per diem allowance should apply, please advise if the
            formula defining ‘day’ (Section 13b) should be applied.

                 “(4) Section 13a, Second Paragraph provides the
            amount that can be expended for meals,    lodging and in-
            cidental expenses each day.   In applying this restriction,
            what should be considered  an incidental expense?

                 ‘I( 5) I have been advised that some airlines do not
            have a tourist rate; but have what is called a ‘standard
            fare charge’ which is comparable          to a tourist rate.  If
            the tourist rates are not available,       must a State Employee
            secure comparable       transportation   or is he entitled to re-
            imbursement      for first-class   transportation    . . .‘I

          With reference  to your first question,    it should be noted that the first
sentence of the second paragraph of Section 12(a) of Article V, quoted in your
letter, refers to tourist class air transportation,     and that the portion of Section
12(b) of Article V, also quoted in your letter,    likewise refers to tourist class




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Honorable    Robert   S.   Calvert,     page 4                (M-939)



air transportation.      Notwith standing the foregoing,   item (3) of Section
12(a) specifically    refers only to first class air transportation.

         The law applicable           to the situation   posed by your first   question
has been stated as follows:

                  “It is not the function of the judiciary to correct
            legislative   errors,  mistakes,   or omissions.    If the
            language of a statute is plain, a court will not elimi-
            nate or supply a word or clause on the supposition that
            it was included or omitted by inadvertence.      I’ 53 Tex.
            Jur. 2d 203, Statutes,    Sec. 140.

See also, Shoppers World,   Inc. v. State, 373 S. W. 2d 374 (Tex. Civ. App.
1963), aff’d sub nom State v. Shoppers World, Inc. 380 S. W. 2d 107 (Tex.
Sup. 1964); Winder v. King, 297 S. W. 689 (Tex. Civ. App. l927),    aff’d 1
S. W. 587 (Tex. Sup. 1928); Ratcliff v. State, 106 Tex Grim.   37, 289 S. W.
1072 (1926); and Creager v. Hidalgo County Water Improvement       Dist. No.               4,
283 S. W. 151 (Tex. Sup. 1926. )

          Your first question is, therefore,   answered as follows:       the expenses
of transportation  to airfields from points where commercial        air transportation
is not available shall be allowed to state employees     on out-of-state    business   in
addition to the cost of first class commercial    air transportation,     as expressly
provided in item (3) of the second paragraph of Section 12(a) of Article V,
quoted supra.

          Your second question is answered as follows:           the amount of per diem
expenses allowed state employees         while traveling out-of-state     in their per-
sonally owned conveyances        shall not exceed $35.00    per day, for the actual
cost of meals,    lodging and incidental expenses,       as provided in the second para-
graph of Section 13(a) of Article V, set forth in your letter.          This $35. 00 per
diem expense shall be in addition to the reimbursement            set forth in the second
paragraph of Section 12(a), quoted supra, which provides,            in part, that “Re-
imbursement     for out-of-state    transportation   for the use of personally     owned
automobiles    together with per diem shall never exceed .             ” (Emphasis
added. )

            In view of our answer        to your second     question,   we are of the opinion




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Honorable      Robert   S. Calvert,    page 5            (M-939)



that the formula defining “day” set forth in Section 13(b) of Article V, is
applicable to both state employees  traveling on in-state and those traveling
on out-of-state  business.  Your third question is, therefore,   answered in
the affirmative.

          As regards your fourth question,       “incidental   expenses” has pre-
viously been defined by this office to include those expenses which arise
as reasonable    incidents in connection with the authorized business       trip of a
state employee.      See Attorney General’s    Opinion No. M-301 (1968),       for ex-
ample.    We construe the term “incidental      expense” to include all such ex-
penses,   as well as any other minor disbursements         necessary   to a state em-
ployee traveling on out-of-state     business.    See e. g. , the various illustrations
of the term “incidental    expenses”   set forth in 20A Word’s and Phrases        111-13
(1959.   )

           We are of the opinion that your fifth question must be answered          in the
affirmative.   Section 12(b) of Article V, quoted in your letter, provides,          in
part, that:

                   0 . . . The rate of reimbursement     for any employee
             .     for air transportion   shall be tourist class unless
             tourist class is not available       . ” (Emphasis   added. )

          In view of the underscored    portion of the foregoing provision,     we hold
that a state employee is entitled to reimbursement        for first class,  or any other
class of, air transportation,   if tourist class transportation,     eo nomine,   does
not exist on a certain commercial     airline carrier,    or in the event that a tourist
class seat is not available on a flight that a state employee must take in connec-
tion with necessary   state business.     In this connection,   the statement by the em-
ployee of the non-availability   of such transportation     on the State of Texas Travel
Voucher should suffice.

                                      SUMMARY

                  Pursuant to Senate Bill 11, 62nd Legislature,   R. S. ,
             1971 (General Appropriations   Act for the fiscal year com-
             mencing September    1, 1971):




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Honorable   Robert   S. Calvert,   page 6              (M-939)



                  (1) the expenses of transportation      to air-
              fields from points where commercial         air trans-
              portation is not available shall be allowed to
              state employees    on out-of-state    business  in addi-
              tion to the cost of first class commercial       air
              transportation,   as expressly     provided in item (3)
              of the second paragraph of Section 12(a) of Ar-
              ticle V of the Bill;

                  (2) the amount of per diem expenses allowed
              state employees    while traveling in their person-
              ally owned conveyances     on out-of-state  business
              shall not exceed $35. 00 per day, for the actual
              cost of meals,   lodging,  and incidental expenses
              (as provided in the second paragraph of Section
              13(a) of Article V cf the Bil,l), in addition to the
              reimbursement     set forth in the second paragraph
              of Section 12(a) of the Bill;

                  (3) the formula defining “day” contained in
              Section 13(b) of Article V of the Bill is applicable
              to both state employees    on in-state business,  as
              well as those on out-of-state    business,  and such,
              formula is to be utilized in calculating   the per diem
              allowance set forth in Section 13(a) of Article V of
              the Bill;


                  (4) “incidental expense, ” as that term is used
              in the second paragraph     of Section 13(a) of Article
              V of the Bill, includes all those minor and necessary
              expenses incidentally   incurred by a state employee
              traveling on state business,    including parking,   medi-
              cal, and laundry expenses,     inter alia; and

                  (5) pursuant to Section 12(b) of Article V of the
              Bill, a state employee is entitled to reimbursement
              for first class,  or any other class of, air transporta-
              tion, if tourist class transportation does not exist on




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Honorable   Robert    S. Calvert,   page 7
                                                            (M-939)



               a certain commercial    airline carrier,  or
               in the event that a tourist class seat is not
               available on a flight that a state employee
               must take in connection with necessary     state
               business.

                                         V&y
                                               ,7truly   yours,




                                                   y General      of Texas

Prepared    bv Austin Brav
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,   Chairman
W. E. Allen,  Co-Chairman

John Grace
Jay Floyd
Mel Corley
Houghton Brownlee

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED    WALKER
Executive Assistant

NOLA WHITE
First Assistant




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