Untitled Texas Attorney General Opinion ( 1973 )

*
THE A'ITORNEY GENERAL
OF TEXAS
July 30, 1973
Honorable George W. McNiel Opinion’ No H- 74
State Auditor
Sam Houston State Office Building ,Re: Legality of a revolving
P. 0. Box 12067 fund ertablirhcd by the
Aurtin, Texar 78711 State Commisrion for
the Blind from funda
received by gift and
from which employeer
of the agency may re-
ceive advances againat
their accrued claims
,for erlary or travel
,Dear Mr. McNiel: reimbursement.
You have, arked about the authority of the :State Commierion for
the Blind to engage in certain,practicer regarding employee expense*.
Your letter atater:
II . . . State Commiraion for the Blind . . .
current fiecal practicer include the payment
of advancea~ against employeer’ estimated
claimr for salary or travel rcimburecment.
The source . , . bar been client training ex-
,,penre fundr. . . locally held and darived from
donationr for rehabilitation activitier. ”
You alao ae.k if our answer would be different if, the advances were
made after’ae actual performance of the travel or .employment but be-
fore pyment by the State Comptroller.
Furnished with your request was a memorandum reflecting the
vicar of the Commirrion. By it we ire advired th&t:
p. 332
._ _
. .
Honorable George W. McNiel, pege 2 (H-70
(I) The agency “has a rerponribility to rerve
many personr who cannot readily come to the office
of thin agency.. . . and it ir incumbent upon this
agency’r rtaff . . . to deliver the rervicer of the
agency to clients who cannot . . . readily leave
their homer. ”
(2) To service eligible individual8 ,throughout
the lrtate “entailr a continuing extension by thin
agency’s field c.taff of personal fund. or personal
credit required for the defraying of . . . reason-
able and necearary travel expenrer . . . . ” and
(3) The agency dealn with human need.; time
ir frequently of the eeaence.
We are further advised .by the Commisrion:
” . . . [T]ravel voucherr are rometimer delayed
weskr or monthr in being proceesed at the State
Comptroller’r office . . . . [Flew of our employ-
ees . . . can continue to finance their officia’l
travel with personal fundr. . ; . ”
In our opinion, rufficient authority doer exist for the Commiarion
for the Blind to advance money from unrertricted fundr to pay authorized
agency expenrcr incurred (or to be incurred) by employeer in the diecharge
of agency buainesr. We find, however, no authority for pre-payments of
salary. Becaure rpecial provirionr apply to the Commirrion which do not
apply to all State l gencier, it in unnecenmary to conrider the authority that
would exist in their absence..
The general rtatutory authority of the Texas Commireion for the
Blind is found in Articles 3207a, 3207b, .md 3207c, V. T. C.S. In 5 2 of
Article 3207a; Betting out power8 and dutier of the Commiraion, it is
provided:
p. 333
Honorable George, W, McNiel, page 3 (H-74)
“(0 The Commirrion rhall take ruch measures
ar it may deem advisable to prevent blind-
nemmand to conrerve eyeright.
. . . .
‘l(i) The Commirrion may receive and expend
giftr, .bequerts, and devirea from inditi-
dualr, arrociationr and corporationr, in
accordance with the proviriona of’this Act. I’
Article 3207b, in part, readr (empharir added):
” . . . [T]he Commise.ion for the Blind shall an-
nuallytlpoint an executive director and ruch other
employeea aa may be neceraary and authorized by
legislation applicable to the Commission for the
Blind. Expenaer of member8 of the Board and of
employee8 rhall be paid in the moot efficient and
practical manner authorized by law for the payment
of ruch expenrea. All accounta #hall be paid in ac-
cordance with laws applicable to the Commiaaion or
in accordance with lawr applicable to State agenciee
generally, ”
Article 3207c, dealing with the Vocational Rehabilitation Program
,of the Commission, provider in part (emphaair added):
“Sec. 3. . . . In carrying out hir dutier under thir
Act the Director:
“(a) shall make regulationa governing pcrson-
nel rtandardm, the protection of recordr and
confidential information, . . . and ruch other
regulationr ar he findr necerrarv to carry out
the Durpoaeo of thir Act:,
p. 334
-. .
The Honorable George W. McNiel, page 4 (H-74)
. . . .
“(e) rhall make certification for dimbursementi,
in accordance with regulationr, of funds avail-
able for vocational rehabilitation purporer;
“l(f) shall, with the approval of the Commission.
take ruch other action as he deemr necessary
or appropriate to carry out the purpose8 of the
Act;
* . . .
“Sec. 7. The Director ir hereby authorized and em-
powered, with the approval of the Commirsion, to
accept and we giftr made unconditionally by will or
otherwise for carrying out the purporer of this Act. . . . I’
The provision8 evidence an intent that the work of the Commission
not be impeded by unnecersary red tape. Subsection (i) of 5 2 of Article
3207a, V. T. C. S., conatituter general legislation “earmarking” all gifts,
bequests and devisea from individual8 to the Commission for it8 use,
inter “as it may deem advisable to prevent blindnero and conserve
eyeeight, ” pursuant to aubeection (f) thereof. Section 7 of Article 3207c,
V.T.C.S., is additional general legislation to the aame effect. These
provisionr are consistent with Article 16, ! 6 of the Conetitution which
(after generally providing that no appropriation for private or individual
purpose8 shall be made), rtates (emphasis added):
l’(b) State agencies charged with the rerponai-
bility of providing servicee to those who are blind
. . . may accept money from private . . . sourcea,
deeignated by the private . . . rource ae money to
be used in and eatablirhing and equipping facilities
for asaioting those who are blind .’ . . in becoming
gainfully employed, in rehabilitating end restoring
the handicapped, and in providing other services
p. 335
The Honorable George W. McNiel, page 5 (H-74)
determined by the state agency to be essential
for the better care and treatment of the handi-
capped. Money accepted under this subsection
is state money. . . .
“The state agencies may deposit money
accepted under this subsection either in the state
treasury or in other secure depositories. The
money may not be expended for any purpose other
than the purpose for, which it was given. Notwith-
stsndinp;
the state agencies may expend money accepted
under this subsection without the necessity of an
appropriation. unlesr the Lenislature. bv law,
requires that the money be expended only on ae-
prouriation. The Legislature may prohibit state
agencies from accepting money under this sub-
section or may regulate the amount of money ac-
cepted, the way the acceptance and expenditure
of the money is administeted, and the purposes
for which the state agencies may expend the money
. . . . ,I
The’general legislation on the subject omits any requirement that
such’moneys be expended by the Commission only upon appropriation.
We think the Legislature has impliedly sanctioned expenditures from
such gifts without appropriation, and that further general legislation
would be necessary to change that policy. See Attorney General Opinions
M-1199 (1972), M-91 (1967). A ccordingly, provisinns and riders contained
in the General Appropriations Act cannot control here, whatever might be
the case of gift receiving agencies not within the scope of Article 16, 5 6b
of the Conrtitution. Compare Attorney General;Opinion V-412 (1947). Tbe
Legislature has been given only the power to regulate (not change) the pur-
poses for which such gifts may be expended, i. l, , decide which, if any, of
the donor’s designated purposes may be carried into effect, and it has been
specified by general legislation that those gifts consistent with the terms of
Articles 3207a and, 3207c, V. T. C.S., may be utilized and expended by the
Commission. Donations become State money but are a supplemental source
of funds to the Commission.
p. 336
. .
The Honorable George W. ticNie1, page 6 ~(H-74
We conclude that donations received by the Commission, unless
limited by the private grant itself, may currently be spent without ap-
propriation for any legitimate purpose (consistent with its statutory
mandate) deemed by the agency to be necessary or essential for the
better care and treatment of those whom it serve& The Commission
had determined that adequate service is endangered by requiring its
employees to finance travel expenses and other expenses incurred on
behalf of the Commission and the State. Unless a constitutional bar
applies, we cannot say that relief of such a condition is not a legitimate
purpose for which such funds may be expended, particularly since Arti-
cle 3207b expressly authorizes the payment of such expenses in the most
efficient and practical manner authorized by law.
Article 3, Sections 44, 50, and 51 of, the Constitution bar payment
of post-performance extra compensation or claimr not supported by pre-
existing law. and prohibit the giving or lending of the credit of the State
in aid of persons, the pledge of the credit of the State for the present or
prospective liability of persons, or the grant of public money to persons.
We do not see any violation of such constitutional provisions so long as
the expenses advanced by the agency are limited to those authorized un-
der Article 6823a or other applicable.laws. Authorized expens,es are
not “salary” or “emoluments, ” or “extra compensation, ” and disburse-
ments of funds to pay them are not gifts or grants for private purposes.
Such disbursements are made for a public purpose and expenditures from
funds on hand for public purposes are not prohibited. State v. City of
Austin, 331 S.W.2d 737 (Tex. 1960). affirming State v. City of Dallas.
319 S.W.2d 767 (Tex. Civ.App. 1959); Barrington v. Cokinos, 338 S. W.
td 133 (Tex. 1960). Articles3207a, 3207b, and 3207c, V. T. C.S., con-
stitute “pre-existing law. ‘I’
Authorized expenses which are to be classified as paid for a public
purpose are those of such a niture that the function of the agency cannot
be discharged without incurring them, See Terrellv. King, ~14S. W. 2d
786 (Tex. 1929); Anno: 5 A.L.R. 2d 1182; 63 Am. Jur. Zd, Public Officers
and Employees, 0 387; 67 C. J. S., Officers, 8 91. Such expenses are
part of the operating costs of the agency and are nither perquisites nor
emoluments. Though they may sustain an employee, they are not expend-
ed for the benefit of the employee, but for the agency which cannot function
p. 337’
The Honorable George W. NcNiel, page 7 (H-74)
unless employees are so surtained. They are no part of the employee’s
“compensation for rervices rendered” and are also to be distinguished
from personal expenses for private and individual purposes. See Terre11
v. Middleton, 187 S.W. 367 (Tex. Civ. App. ; San Antonio, 1916, writ re-
fused).
Authorized travel expenses incurred by an agency,employee are
liabilities and expenses of the agency, not of the employee, and if the
agency pays them in the first instance from unrestricted funds, there is
no reason that we can see why the agency would not be entitled in the same
manner as the employee, to later reimbursement therefor from funds
specifically appropriated to pay travel expenres. Cf. Attorney General
Opinions S-103 (1953): WW-1207 (1961). A procedure already exists where-
by agencies may have public transportation costs billed directly to them
and paid by the Comptroller upon a purchase voucher from the agency.
See $ 12b, Article 5, of the General Appropriations Acts for both 1972md
1973-34.
Reimbursement of authorized travel expenses incurred by State
agency members and employees from specifically appropriated funds is
governed by Article 6823a, V. T. C. S., the Travel Regulations Acts of
1959. That statute does not prohibit the expenditure of non-appropriated
funds for such purposes. Attorney General Opinions WW-1053 (1961),;
M-1175 (1972). Section 4 of that Act does specify (emphasis added):
“Sec. 4 Unless otherwise provided by law,
officer~r and employees traveling to the~perform-
\ anc,e of their official duties shall not accept any
aums of money for wage8 or expenses, from any
corporation, firm, or person who may be or is
being audited, examined, inspected. or investi-
gated. and must receive their trave@expezsss
from the amounts appropriated in the Apnropria-
tion Acts. The Comptroller is hereby prohibited
from paying the salary of any employee of the state
who violates these provisions. ”
p. 338
. .
The Honorable George W. McNieI, page 8 (H-74)
But the provirion has no application to activities not involving audits,
examination, inspections or invertigations, and we interpret it as in-
tended to guard against conflicts of interest - not against the pre-pay-
ment of such expenses by the agency from unrestricted funds rather
than by the individual employee from his personal assets.
State employees are not required by law, as a condition of their
employment, to privately finance the authorized agency expenses they
incur. But if they do, they are given by ,law a means to recoup. The
“per diem” and “mileage” provisions of Article 68231, V. T. C-S., do
not argue otherwise; those are roughly calculated (in conjunction with
Appropriation Act provisiona) to reimburse authorized actual expenses
without the need for minute and wasteful accounting recxy the
State. Section 3a of that statute specifically states that per diem ad-
vances “shall be legally construed as additional compensation for offi-
cial travel purposes only. I’
Section lla Article 5 of both the 1972 and the 1973-1974 General
Appropriation Acts reads (emphasis added):
“GENERAL TRAVEL PROVISIONS. a. The amounts
specifically appropriated in this Act to each agepcy
of the State for the payment of travel expenses are
intended to.be and shall be the maximum amounts to
be expended by employees and officials of the respec-
tive agcrries. None of the moneys.a``k``priated by
this Act for travel expenrer may be expended unless
the ‘official travel and the reimbursement claims
therefor are in compliance with the following con-
ditions, limitations, and procedures. . . . ‘I
In our view, this provision har no application to expenditures autho-
rized by other laws, or to funds which msy be spent without appropriation.
But it does govern reimbursement from appropriated funds.
Article 68230, i 6f. provides that an officer or employee who receives
an overpayment for travel expensesis to reimburse the state for such over-
pm 339
. . .
. .
The Honor.able George W. McNiel, page 9 (H-74)
payment. We think the frame obligation would rest with an employee or
officer who is advanced expenrer by the Commission which later prove
to be unauthorized.
Secti.,n 7 of Article 6823a reads:
“Sec. 6. Double travel~expense~s payments ”
.to state officials or employees are prohibited. When
an employee engages in travel for which he is to be
compensated by a non-state agency, he shall not
receive any reimbursementfor such travel from
“authorized amounts in the General Approp’r.iation’ .
Act..”
This’ pr’ovision bars “collecting twice”for .the same expense; it does not
prohibit a state agency from replenishing an unrestricted fund depleted
by legitimate travel expense advances with treasury funds appropriated
to defray such expenses. See Attorney General Opinions S-103 (1953) ;
WW-1207 (1961).
We understand. however, that the’Commirsion currently treats
such~ advances as “loans” to its employeer and requires them as a con-
dition of eligibility for such advancements (and to secure their repay-
ment) to grant to the Commission a power.of attorney authorizing the
Commission to deposit to the agency’s checking account all salary and
travel warrants from the Treasury made payable to the employee. The
agency also charges the employee the sum of $1.00 for each adtince made.
We think the characterization of such advances as ,“loans” in erron-
eous. The amounts legitimately advanced are to pay liabilities of the
agency; not those of the employee. No,advancements should be made in
excess of authorized expenditures, for contemplated agency expenses.. We
think it permissible for the agency to,arrapge that amounts so advanced
not be paid again directly, to the employee in the form of Treasury travel
warrants, but the Commission’s claim on employee travel warrants will
never exceed the amount of the warrants to be issued so long as only
authorized expenres have been advanced.
p. 340
. . .
‘.
The Honorable George W. McNicl, page 10 (H-74)
Salary warrants cannot be handled the name way. When expensea
are legitimately advanced, they are to be ured for a specific public pur-
pore by the employee as the reprerentative of the agency. The money
cannot be lawfully ured to satisfy purely personal needr. Such an ex-
pense advance ir not a~.loan. A peraon’s ralary, however, is hip to do
with as he wiahes. It cannot be advanced to him by the agency because
the advance would then conrtitute a personal loan to him of public funds
to be ured for private purporer.
If amount.9 for expended expenser’are advanced in excess of the
expenses which are later proved to have been actually authorized or
neceerary. we think the agency can recover the exce.sa from the em-
ployees, but we do not think salary warrant8 can be legitimately held
in pledge, in effect, to secure such “loana. ” The agency cannot law-
fully be in the burinear of lending public money to itr employeer, and
the holding of salary warrants as security for exceraea would tend to
relax agency diligence in aaruring that advances cover only authorized
agency expenser.
Nor do we think there ir any authority for the agency to charge em-
ployees a fee-for making advancer of authorized expenree. Advances, if
legitimately made, are made for the benefit of the agency and only inci-
dentally benefit: the employee& The coat of making such advancea, if
necessary, is an agency operating expense, pot properly chargeable to its
employees as a “oervice. ”
Rerponding to your inquiry, therefore, it ia our opinion that the
Texas Commission for the Blind may, putruant to itr agency regulationa,
lawfully advance to its employeer from unrertrjcted donationr on hand
authori,zed agency expenrer which the employee will incur on behalf of
>he agency in the performance of agency bueinerr, and may lawfully re-
quire the employeea to whom ruch advances have been made to deposit
with the agency Treasury travel warrantr:.isaued to pay for ruch expenaeo.
But we are of the opinion that the State Commt#sion for the Blind is not
authorized to require such employeer to deposit with tbe agency salary
warrants iarued to them, or to charge a fee to employee6 for making such
advances. Our answer icl the same whether such advances are made be-
fore or after the authorized expenses are incurred.
p. 341
The Honorable George W. McNiel, page I1 (H-74)
SUMMARY
The State Commirrion for the Blind,
pursuant to itr agency regul+tiona, may Lw-
fully advance to itr employeer from unrertricted
donetionr on hand, authorized +gency expenrer
which the employee will incur or bar incurred
on behalf of the agency in the performance of
agency burineer, and may lawfully require the
employee6 to whom such advances are made
to deporit with the Agency Treasury travel
warrantr irrued to pay for ruch expenaer. But
the State Commirrion for the Blind ir not auth-
orized’fo require ruch employees to deporit
with the agency salary warrant0 irrued to them,
or to charge a fee to employees for making ouch
adtince#.
Very truly your@,,
JOHN L. HILL
General of ‘Texar
z
DAVID M. KENDALL,
Opinion Committee
Chairman
p. 352