Untitled Texas Attorney General Opinion ( 1960 )

THEATTORNEYGENERAL
OF-XAS
WVILL WILSON
A-RNEY GENERAL
August 29, 1960
Mr. D. C. Greer
State Highway Engineer
State Highway Building
Austin, Texas Opinion No. WW-923
Re: Whether an employee of the
Texas Highway Department
traveling to Austin to re-
ceive a longevity award is
entitled to the per diem or
actual expenses which are
provided for in Section 33
of Article V of the General
Dear Mr. Greer: Appropriation Act.
Your recent request for an opinion from this office
reads, substantially, as follows:
"In response to my request of November
10, 1959, your office Issued opinion number
WW-790 which upheld the constitutionality of
the rider in our appropriation bill which
authorized us to give certain of our employees
longevity awards and pay for their transporta-
tion to Austin to receive such awards. . . .'
"Would you please advise me whether or not
an employee traveling to appear before the
Commission under the provisions of the subject
rider la entitled fin addition to transportation
expensgto the per diem or actual expenses
which are provided for In Section 33 of Article
V of the General Appropriation Act."
The "rider" of which you speak In the,General Appro-
priation Bill (House Bill 4, Acts of the 56th Legislature,
Third Called,Session, 1959, chapter 23, page 442 at 590) pro-
vides as follows:
Mr. D. C. Greer, Page 2 (WW-923)
"As compensation in addition to that
authorized to be paid above, the Highway
Department is authorized to purchase and
give to its employees at periodic intervals,
under such rules and regulations as has been
or may be adopted by the State Highway Com-
mission, service award pIns and certificates
for longevity of service and safety award pins
and certificates for safe operation of state
equipment; and the Department is also author-
ized as further additional compensation to
provide, at state expense, for the transporta-
tion of employees with 25 years or more of
service from their designated headquarters to
Austin and return at intervals of not less
than 5 year5 for the purpose of appearing be-
fore the State Highway Commission to receive
said longevity service awards." (Emphasis
added)
Article 6823a, Vernon's Civil Statutes, the "Travel
Regulations Act of 1959," deals with the payment of travel ex-
penses to state employees. This Article mentions in its var-
ious sections three types of expenses, i.e. per diem or actual
expenses, transportation allowance or transportation reimburse-
ments and travel expenses. Therefore, we believe your question
revolves around the interpretation of these expenses as applied
to the above quoted rider.
A "per diem" allowance means a flat daily rate pay-
ment in lieu of actual expenses Incurred for meals and lodging
and as such shall be construed as additional compensation for
official travel purposes only. Section 3a, Article 6823a,
Vernon's Civil Statutes.
"Transportation" is the movement of things or person8
from one place to another or implies the taking of persons or
property at some point and putting them down at another. Words
and Phrases, Vol. 42, page 513. The "reimbursement" or "allow-
ance" allowed by the statute would be a paying back, or making
restoration of an equivalent to the expense of this movement
only.
"Travel expenses," as defined by the Supreme Court of
80 N.E..2d 118 (120), comprehends
ther charges reasonably incident there-
to while on a Journey, including lodging, meals and kindred ex-
penses incurred during the trip. We believe It was the Legis-
lative intent for this term to have the above meaning as used
. .
Mr. D. C. Greer, Page 3 (WW-923)
in Article 6823a, Vernon's Civil Statutes.
Therefore, applying all these definitions together,
we find that "per diem" and "transportation" expense, allow-
ance or reimbursement are two separate and apart rates which
are applied for different reaons,l while "travel expense" is
broad enough to encompass both terms.
The above quoted rider from the Appropriation Bill
states that these pins and certificates are compensation In
addition to that authorized and as further additional compen-
sation to provide, at state expense, for th transportation
-10 ees with 25 years or more service to Austin and the
FcsFs&r The term "transportation" expense Is the only
one used in this rider and, in view of the above, we are of
the opinion the scope of its meaning does not include "per
diem" allowance.
The term "transportation" expense, even though we
feel it would be unjustified, might be construed to mean
'travel" expense, thereby including the payment of "per diem"
allowance. If this be so, the "per diem" allowance to be
paid, according to the above rider, would be "additional com-
pensation." Thus, being subject to two constructions, we
believe the following rule would apply.
In Allen v. Davis, 333 S.W.2d 441 (k&4),,the court
stated:
"We believe the law is settled in this
state that where a statute is capable of two
lThe Legislature bears this out by its treatment of
the terms in Article 6823a. Section 3b states:
"The rate of per diem and transportation
allowance and method of computing these rates
shall be those set forth In General Approprla-
tion Acts providing for the expenses of the
state government from year to year." (Emphasis
added)
Section 6d, states:
"When two or more employee5 travel In a
single private conveyance, only one shall re-
ceive a transportation allowance, but this pro-
vision shall not preclude each traveler from
receiving a per diem allowance." (Emphasis
added)
, -
Mr. D. C. Greer, Page 4 (WW-923)
constructions, one of which would favor an
officer contending for compensation from a
political subdlvislon of the government above
his salary and the other construction would
not so favor such officer the construction
should favor the government."
Likewise, the Supreme Court stated in Madden v.
Hardy, 92 Tex. 613, 50 S.W. 926 (928):
11
. . . We have under consideration a
statute, the construction of which is very
difficult. One construction would give to
the official some compensation for his ser-
vices in addition to his salary. The statute
admits of another construction which would
not have this effect. In such a case the
latter should be adopted. . . ."
PorthLs additional reason, we are of the opinion
that the authority granted by the General Appropriation Bill
to pay the transportation of certain highway employees to
Austin and return does not include the granting of per diem
allowance to these individuals.
SUMMARY
An employee of the Texas Highway Department
traveling to Austin to receive an award for
which the transportation is pald out of
state expense Is not entitled to the per
diem or actual expenses provided for in Sec-
tion 33 of Article V of the General Appropria-
tion Act.
Yours very truiy,
WILL WILSON
Attorney General of Texas
JMF:hb
.
Mr. D. C. Greer, Page 5 (WW-923)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Paul W. Floyd, Jr.
Lawrence Hargrove
Raymond V. Loftin
William H. Pool, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.