                                                        213




                  March 20, 1952

Hon.~Paul H. Brown
Fire Insurance Commissioner
Board of Insurance Commissioners
815 Brazes
Austin 1, Texas     Opinion NO. V-1422.
                    Re:   Limitation upon reimburse-
                          ment for meal and lodging
                          expenditures by State Fire
                          Insurance Commissioner, or
                          by employee of the Fire In-
                          surance Division when ln-
                          vestigating a fire at the
                          request of an interested
Dear Sir:                 party.

          You have requested the opinion of this of-
fice on the following questions:
           “1. Is the State Fire Marshal, when
    -.he mak@ an investi tion under Article
      5.45 LInsurance Cod2 providing ‘then the
      expenses of the State Fire Marshal, clerl-
      cal expenses, witnesses and officers fees
      in       and B         to such investiga-
   ‘. ti”oashall be paid by such insurance oom-
     .paxiyllimited to the $6.00 per day ex-
      penses provided in the rider to the appro-
       Nation bill set out In Section 2(12) -
     3 raveling Expenses-g?

          “2. 1s L    employee of the Fire In-
                   27 when so.acting and so
     surance Divislo
     designated, to be paid his expenses as pro-
     vided in Article 5.45 or Is he limited un-
     der the rider to the appropriation bill to
     $6.00 per day for meals ana ioaging?~~
          An employee of the Fire Insurance Division
who was appointed by you under the authority contained
in Article 5.45, Insurance Code, to make an lnve’stiga-
tlon, incurred meal ana lodging expense in excess of
Hon. Paul H. Brown, page 2   (V-1422)


$6.00 per day. Your problem has arisen because of the
refusal of the Comptroller to issue a warrant for a
sum in excess of $6.00 per day.
          Article 5.45, Insurance Code, provides:
          "If for any reason the State Fire Mar-
     shal is unable to make any required investi-        _
     gation in person, he may designate the fire
     marshal of such city or town or some other
     suitable person to act for him; and such
     person so designated shall have the same au-
     thority as is herein given the State Fire
     Marshal.with reference to the particular
     matter to be investigated by him, and shall
     receive such compensation for his services              i"
     as the Board may allow. 1 f the lnvestig+               ;$
     tion of a fire is made at the reauest of an             .+
     insurance company, or at the request of a               ',
                                                             .;:.i
     policyholder sustaining loss, or at the re-              ?'
     auest of the mayor. town clerk or chief of
     the fire department of any city, village or
     town in which the fire occurred. then the
     expenses of the Fire Marshal. clerical ex-
     penses, witnesses and officers fees incident
     and necessary to such investigation shall be
     paid by such insurance company. or such pol-
     icy holder or such city or town as the case
     may be, otherwise the expenses of such in-
     vestigation are to be paid as part of the
     expenses of the Board. The party or parties,
     company or companies, requesting such,in-
     vestigation, shall before~such investigation
     is commenced deposit with the Board an mt
     of money in the judgment of said Board,suffi-
     cient to defray the expenses of said Fire
     Marshal in conducting such investigation."'
          This statute in effect requires an insurance
company.or other party requesting an investigation to
pay to the Board, on behalf of the State, an assessment
equal to the actual expenses incurred in the requested
investigation. This assessment becomes state property
upon the completion of the investigation and the a pro-
                                                    6.
val of the expense account. Att'y Gen. Op. v-1336 95U

 u    Emphasis added throughout.
 Hon. Paul H. Brown, page 3   (V-1422)                    235


 The above statute makes this money available only for
 the specified purpose of paying the expensesincurred
 in carrying out the investigation.
           However, the fact that an assessment isloade
 and collected and the fund IS earmarked by general
 statute for a certain use does uot ,make itavailable
 unless,it is also appropriated by~the Legislature for
 that use. Furthermore, even though a general statute
 specifies payment of a certain amount, the amount ac-
 tually paid is determined by the amount7a;;rp;;;ted
 by the Legfslature. StatTev. Steela,
 (1882), and    den v. Fin Y           2 51, 4; s.w.%8
 (1899),Att'$%en. Op. V-12& :?9%:
             Therefore the b~asicquestion to be deter-
   mined is whether the general appropriation bill for
_ the biennium ending August 31, 1953, appropriates to
,.:Fire Insurance Division personnel acting as fire in-
   vestigators their actual expenses when making an in-
 :vestigation at the request of an insurance company or
   other party.
           Section 12(g) of Article III, House Bill 426
 (the general ap ropriation.bill), Acts 52nd Legislature,
                 99, p. 1228, at p. 1437, provides:
 R.S. 1951, ch. f:
           "All employees traveling at the ex-
      pense of the State are hereby limited to
      the amount of Four Dollars ($4) per day
      for meals and a total of six Dollars ($6).
      per day for meals and lodging it being         .,
      specifically provided that the employees
      shall obtain receipts for all Items-of vex-
      pense claimed except meals, and shall file
      such receipts with their duly Itemized and
      sworn expense accounts; provided. however,
      that the meals and lodd.nP:limitations im-
      posed bs this subsection (12g only) Shall
      pot applv to any elected State official
      por to any appointed State official nor to
      any appointed State official whose appoint-
      plentis subject to Senate confirmation,
      when traveling in or out of the State; nor
      to employees of the Executive Department,
      and employees of other State Departments
      designated by the Governor to rep.resent
      him officially at governmental meetings or
                                                    i




Hon. Paul H. Brown, page 4   (V-1422)


    conferences when held out of the State;
    nor to any Assistant Attorney General,
    or representative of the State Health
    Officer, or representative of the Adju-
    tant General, or representative of the
    State Board of Vocational Education,
    or representative of the Department of
    Public Welfare, or representative of the
    State Highway Commission or representa-
    tive of the Railroad Commission when any
    of these classes of State employees are
    appearing before any Federal Agencies or
    agencies of other States in any other
    State or Washington, D.C."
          The underlined portion of~the above quoted
subsection answers your first question. The p,rovlso
that section 12(g) shall not apply to appointed offi-
cials subject to confirmation by the Senate is appli-
cable to you as Fire Insurance Commissioner since
your office is of the excepted type 2nd the investiga-
tion of fires is one of your duties.   You are there-
fore advised that the traveling expense of the State ' 2
Fire Insurance Commissioner is not limited by this
section, a@ that you should receive your actual ex-
penses, which are to be paid out of the fund hereti-
after discussed when you are making an investigation
pursuant to Art. 5.45,m.'
          The above exception is not applicable to em-
ployees of the Fire Insurance Division, and If this
were the only section regulating the expenditures for
meals and lodging the mamum   reimbursement to employ-
ees would be $6.00 per day.
          The appropriation to the Fire Insurance Di-
Vision provides in part:
          81Provlaeaalso that such sums as are
     received by the Fire Mvision as provided

  a    Art. 1.02 Insurance code, provides in part:
'1. . . The dudes heretofore and now placed upon and
the powers and privileges heretofore and to be exer-
cised by the State Fire,Marshall shall continue in and
be had, enjoyed, and exercised by the Fire Insurance
Commissioner.14
.   .



        Eon. Paul H. Brown, page 5   (V-1422)
                                                                  217
            by Article 4898 R.c.S. .&t. 5.45, In-
           .surance Goad shall'be deposited to the
            Departmental Suspense Account in the
            .State Treasury. Expenses of State em&
            ployees incident to,.theinvestigations
            shall be paid from travel expenses-here-
           <inabove appropriated.and such travel
          ~.expense.appropriition shall~be reimbursed
            for,the actual amounts exuended unaex~the
          .bprovisions of Article 4828 R.CiS.~ :fArti-
            .cle 5.45, Insurance.Codd by a transfer
            from the amount on deposit pBthc2ypart-
            mental Suspense Account."   . .     ,
             supra, at p. 1373.
        We have previously heid this provision to be a con-
        tinuing appropriation during this biennium of-the
        expense money fees collected,frbm parties re uesting
        fire investigations. Attly Gen. Op; V-1336,,?1950.
        This provision appropriates a sum sufficient~to pay
        the w      expenses incurred~by employee investiga-
        tors under the provisions of Article 5.45, sunra.
        These expenses would obviously include the actual
        cost of meals and lodging.
                  Thus, In the general approp&ati.on bill,
        there is a~specific provision appropriating funds to
        defray the actual expenses of a fire investigator,
        and a general provision limiting meals and lodging
        expenses of State employees to $6.00 per day. The
        provisions are in conflict whenever~act1-d expenses
        are in excess of $6.00 per day. ~ti.case of conflict,
        the specific provision controls over the general pro-
        vision of the same act. Gulf Tnsurance Co. v. James
        143 Tex. 424, 185 S.W.2d 966 (1945);Att'y Gen. Op. '
        V-378 (1947). In compliance with this well estab-
        lished rule you are a.&isea that employees of the~l?lre
        Tnsurance Division investigating fires at the instance
        of insurance companies or other parties pursuant to
        Article 5.45, supra.,may properly be issued warrants
        for their actual expenses.
                  Our holding is in accord with the results
        reached in Attorney General's Opinions O-4289 (1942)
        and o-7367 (1946). These opinions involved the ques-
        tion of whether insurance examiners traveling out of
        State to make examinations wnder the provisions of Ar-
        title 1.16, Insurance Code (tit. 469Oa, V.C.S.), were
     Hon. Paul H. Brown, page 6   (V-1422)


     limited to $4.00 per day for meals and lodging as
     provided in the general appropriation bills. Both
     opinions held that the examiners were entitled to
     their actual expenses. These opinions were based
     on the wording of the.general statute, and the ques-
     tion of an appropriation of the funds for the ex-
     penses of the examiners was not discussed. Ho?jever,
     a search of the appropriation bills during the years
     involved reveals that the funds collected were ap-
     propriated for the actual expenses of the examiners
     incurred in making the examinations.
                             SuMMAFtY
               The State Fire Commissioner, being
          an appointed State official subject to
          Senate confirmation, is excepted from the
          provision of the general appropriation
          bill limiting-meal and lodging expenses
i’
I.        to 56.00 per day (sec. 12(g), Art. III,
                                    R.S. 195l, ch.
          &t; F6i2$:'aZ2i"    1"$$.
             - The s ecific appropriation contained
          In H.B. 42g , suura, at p. 1313, to cover
          the actual meal and lodging expenses of
          employees investigating fires at the re-
          quest of a party pursuant to Article 5.45,
          Insurance Code, is controllinlrover the
          general limitation containedin tin*proprLa-
          tion bill limiting State employees to g6.00
          per day for meals and lodging.
                                        Yours very truly
                                          PRICE DANIEL
     APPROVED:                          Attorney General
     E. Jacobson
     Reviewing Assistant
                                        BycqTgb
     Charles D. Mathews                   E. Wa     Thoae
     First Assistant                            Assistant
     EWT:wb
