Honorable Chet Brooks              Opinion No. H-1041
Chairman, Senate Human Resources
  Committee                        Re: Employment of the
Senate Chamber                     handicapped by state
Austin, Texas 78711                agencies.

Dear Senator Brooks:

     You have requested our opinion concerning the employment
of handicapped persons by state agencies and the payment of
travel expenses incurred by such employees. Your first ques-
tion originally involved the propriety of a job description
for a particular position; however, the job description was
modified after you submitted your request.  In light of that
modification the remaining portion,of your first inquiry in-
volves the general question of restrictions upon employment
of handicapped persons.

     Article 4419e(l), V.T.C.S., provides:

          Section 1. The policy of the State of
          Texas is to encourage and enable persons
          who are blind'or otherwise physically
          handicapped'to achieve maximum personal
          independence, to become gainfully em-
          ployed, and to otherwise fully enjoy and
          use all public facilities available with-
          in the state.

In addition, article 4419e(3), V.T.C.S., provides:

          (f) An employer who conducts business in
          this state may not discriminate in his em-
          ployment practices against a handicapped
          person solely on the basis of his handi-
          cap if the person's ability to perform the
          task required by a job is not impaired by
          the handicap and the person is otherwise
          qualified for the job.
See also V.T.C.S. arts. 664-5(1)(a), 664-6(l) (a), 678g; 29
--
U.S.C. S 793(a).




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     Thus as a matter of statutorily expressed public policy,
state agencies may not refuse to employ a qualified handicapped
person "on the basis of his handicap."

     Your second question involves payment to handicapped em-
ployees for travel expenses, You first ask whether a handi-
capped employee may be reimbursed for both the use of a per-
sonally owned vehicle and the expense of retaining a driver
for the vehicle so long as the amount does not exceed the cost
of the use of public conveyances for an equivalent amount of
travel. Section 8 of article 6823a, V.T.C.S., provides:

         An employee whose duties customarily re-
         quire travel within his designated head-
         quarters may be,authorised a local trans-
         portation allowance for his travel. Such
         allowance, however, may not exceed the
         transportation allowance for use of a
         privately owned automobile as set by the
         Legislature in the General Appropriations
         Acts, except that an employee with a physi-
         cal handicap which precludes his personal
         operation of a privately owned automobile
         may, without regard to the standard other-
         wise set in the General Appropriations Acts,
         be authorized a reasonable transportation
         allowance not to exceed the amount to which
         such handicapped employee would be entitled
         for similar travel occurring outside of his
         designated headquarters.

Section 6(a) of this article provides for rules and regula-
tions to be promulgated by the Comptroller.  These regula-
tions are contained in the State Employee Travel Allowance
Guide which provides at page 10:

         Employees traveling under provisions of
         S.B. 881, 64th Leg., [art. 6823a, S 8, as
         amended] will be allowed the actual cost
         of transportation via bus, taxi or the
         mileage allowance of sixteen (16) cents
         per mile for an automobile driven by a
         volunteer driver.

It is therefore clear that the reimbursement to a handicapped
employee who utilizes a private automobile is limited to six-




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    Honorable Chet Brooks         - Page 3     (H-1041)



    teen cents per mile. We have discovered no authority for re-
    imbursement on the basis of the cost of public conveyance where
    no public conveyance is in fact utilized.

         You also ask whether a state agency may establish a spec-
    ial system for reimbursing the transportation expenses of han-
    dicapped employees who are unable to drive a personally owned
    vehicle in the performance of their duties. Since article
    6823a provides for reimbursement for travel expenses under
    regulations of the Comptroller, individual state agencies do
    not have authority to establish a special system of reimburse-
    ment which conflicts with rules and regulations of the Comp-
    troller.

         Your final question is whether such a special system would
    constitute "affirmative action to employ and advance in em-
    ployment qualified handicapped individuals" under 29 U.S.C. 9
    793(a). While as we noted above individual agencies lack autho-
    rity to develop "special systems" in this context, the regu-
    lations of the Comptroller constitute a form of a special
    system. In our view those regulations as well as section 8
    of article 6823a may constitute such "affirmative action."
    See 29 U.S.C. 791b, 20 C.F.R. 741.4 (1976).
    -
                            SUMMARY

              State agencies may not refuse to employ
              a qualified handicapped person on the
              basis of his handicap. A handicapped
              employee who utilizes a private automo-
              bile and driver on state business is
              limited to sixteen cents per mile reim-
              bursement.  State agencies do not presently
              have authority to develop a special system
              of reimbursement for travel by handicapped
              employees; under current law the system
              is provided by the Comptroller under article
              6823a and the General Appropriations Acts.

                                          truly yours,




                                  Attorney General of Texas




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APPROVED:




DAVID   M.   KENDALL, First Assistant




C. ROBERT HEATH. Chairman
Opinion Committee

jst




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