The Honorable Dr. H. CL Sibley                     Opinion No.   H- 58
Executive Director
Texas Animal Health Commission                     Re:   Entitlement of Commissioner
1020 Sam Houston Building                                of Texas Animal Health
Austin,  Texas 70701                                     Commission   to recover per
                                                         diem and expenses
Dear Dr.   Sibley:

    Your letter requesting our opinion stated that a recently appointed
Commissioner      submitted an expense account for his initial months’ service
which creates questions.       The expense account which you have submitted,
as well as correspondence       which we have received from the Commissioner
involved,  indicate that he found it necessary      to travel to Austin on several
occasions   to get acquainted with office personnel       and the status of various
programs    of the Commission,      to determine what avenues were open to the
Commission     in the event the United States Department        of Agriculture    carried
out a threat to refuse to recertify     Texas as a “modified-certified       free State”
unless Texas took legislative      action to upgrade its brucellosis     program;     to
travel to Washington,     D. C. for talks with personnel     of the United States
Department    of Agriculture    as well as with members      of Congress    to determine
if Texas would have Federal assistance         cut off; and other similar trips.       For
these trips the Commissioner        has submitted a travel voucher on the form
prescribed   by the Comptroller      of Public Accounts itemizing his mileage,
his air transportation    fees to and from Washington (which are supported by
an airline receipt) and his meals and lodging.

    In your letter you point out that there were no Commission     meetings
during the two months involved and that the minutes of the Commission        do
not reveal any direction  by the Commission     to this Commissioner    to perform
any of the travel and services  for which reimbureement    is claimed.

    You also state that the Commissioner      wants to know whether he is entitled
to the statutor,y   $20.00 per day payment for each day on which he performs
some function attributable    to Commission   activities “irrespective of whether
such services     were undertaken at the direction of the Commission.   ”




                                        p.   246
The Honorable     Dr.   H. Q.   Sibley,   page 2 (H-58)




     Article 7009, Vernon’s      Texas Civil Statutes,   covers the creation and the
composition    of the Texas Animal Health Commission         which, prior to 1959,
was the Livestock     Sanitary Commission      of Texas.   As amended in 1965
(Acts 1965, 59th Leg.,      p. 217, Ch. 89) the statute calls for the appointment
of six citizens as Commissioners,        one of whom is to be designated as Chairman
by the Governor.      “Insofar as is practicable,    the Commissioners     appointed
hereunder shall be appointed so as to give proportionate         representation  from
the west, from the south, from the north, and from the eastern portions of
Texas . . . ”

    Article 7009 concludes by stating:     “Each Commissioner   is entitled to
receive $20 per diem plus the actual and necessary     expenses incurred while
in the performance  of his official duties. ”

     The duties of the Texas Animal Health Commission               are broad and
important.     Generally    they  have  to do  with  regulating   the movement of
livestock and the requirement        of tests,   immunization     or dipping necessary
as a protection against the dissemination          of contagious,    infectious or com-
municable livestock      diseases   (Article   1505a, 5 2, Vernon’s      Texas Penal Code).
They are spelled out in detail in Chapter 14 of the Penal Code of the State of
Texas,   Articles  1505a through 1525g.

    Senate Bill No. 1 of the 3rd Called         Session of the 62nd Legislature,     the
Appropriation   Bill for the year ending        August 31, 1973, appropriates    to the
Animal Health Commission       $3, 000 for      the per diem of Board members.         It
also includes in Item 8, Consummable            Supplies and Materials,   etc.,   an
appropriation  for travel.

    Reimbursement        of travel expenses is governed generally by Article 6823a
Vernon’s    Texas Civil Statutes,     the Travel Regulations   Act of 1959.  It provides
in $ 6 that the Comptroller      of Public Accounts is to promulgate    rules and
regulations   to facili.tate the execution of the travel regulations   and, with the
concurrence    of the State Auditor to prescribe      the form on which travel expensas
are to be submitted.        “The Comptroller    shall approve claims for travel expense
and issue warrants on basis of approved claims. ‘I

    The rules and regulations  issued by the Comptroller   of Public Accounts
do not provide for the determination  of a contested or questioned claim.    The
form of the voucher which he has prepared does call for approval of the
Agency.




                                          p.   247
The Honorable    Dr.   H. Q.   Sibley,   page 3(H-58)




    In Att0rne.y General Opinion V-145 (1947) this office had for consideration
the authority of the then Livestock  Sanitary Commission   (now the Texas Animal
Health Commission)    to approve claims incurred in the enforcement    of its
statutory authority.   The conclusion of the Opinion was:

             “The chairman of the Livestock    Sanitary Commission
        has full authority to approve any and all claims incurred
        by the Livestock   Sanitary Commission    in the enforcement
        of the provisions  of House Bill 19, Chapter 3, Acts of the
        Regular Session of the 50th Legislature.    I’

    The statute referred to had to do with the establishment       of quarantines
to prevent the outbreak of Hoof and Mouth disease.

    It appears that the only limitation imposed upon a Commissioner           as to his
expenses for which he is entitled to reimbursement        is that they be “actual and
necessary”   and that they be’incurred    while in the performance     of his official
duties. ‘I Surely the official duties of a Commissioner      must include ~more than
merely attending meetings of the entire Commission          and it is our opinion
that each Commissioner      of a department headed by a Commission         has con-
siderable  discretion  in determining   what his activities   are to be and what
expenses he incurs.    His discretion,   however,   is not unlimited.

    Whether or not the services    are “in the performance    of his official
duties” is a determination   to be made primarily    by the Commissioner      himself
and certified to in his travel voucher;   secondly by the Commission      Chairman
in approving or disapproving    the voucher for payment; and thirdly, by the
Comptroller   of Public Accounts.

                           SUMMARY

            Entitlement    to reimbursement       of travel expense and
        per diem of a member of the Texas Animal Health Commission
        is not dependent upon whether it was incurred in attending
        Commission     meetings or whether it had been expressly
        directed by the Commission.         A Commissioner      has a great
        deal of discretion    in determining    whether or not his actions
        are “in the performance       of his official duties, ” However,
        because funds appropriated       for such expenses are limited,
        the discretion   is not unlimited.




                                         p.   248
The Honorable   Dr.   H. Q.   Sibley,   page 4 (H-58)




                                         Very     truly yours,




                                         Attorney     General    of Texas

AFPRqVED:




?i&sd&
DAVID M. KENDALL,        Chairman
Opinion Committee




                                         p. 249
