Untitled Texas Attorney General Opinion ( 1948 )

TEIEATTOWNEY GENERAL
OFTEXAS
i.USnN Il. TEXAS
March 13, 1948
Hon. Beauford H. Jester, Opinion No. V-520
Governor of Texas,
Capitol Building, Re: Liability of the State
Austin, Texas for traveling expenses
incurred by an agent of
Attention: Mr. Ransom the State commissioned,
by the Governor for de-
manding.and receiving
from authorities of
another state a fugi-
tive from justice and
returning him to Texas.
Dear Governor:
Reference IS made to a request for an opinion,
dated Februarv 19, signed by Mr. L, D. Ransom, one of
your Secretaries, which reads:
"The Governor's Office seeks an opln-
ion on the following:
"Deputy Sheriff from Austin, Travis
County, Texas, e o e went after and return-
ed the party by the name of #alter Lee
Lyons from Los Angeles, California. They
are now rendering an expense account in the
amount of 965.30to be paid from the Gov-
ernor's funds covering the return of fugi-
tives. Is approval necessary from the Gov-
ernor's Office for this expense account &-
m this trip is made?
'Will appreciate your giving the under-
signed an opinion on the above."
Mr. Ransom has verbally advised us that a requi-
sition was issued by you to the Governor of the State of
California demanding the apprehension of one Walter Lee
Lyons, a fugitive from Justice from this State, who was
then in California, and to deliver him to the Deputy Sher-
iff of Travis County, whom you commissioned as agent of
Hon. Beauford H. Jester - Page 2 (V-520)
this State to receive the fugitive, return, and deliver
him to the Sheriff of Travis County. Your requisition
was honored by the Governor of the asylum state and the
fugitive was delivered to the agent, who fulfilled his
mission by delivering the fugitive into the custody of
the Sheriff of Travis County. It is also our fnforma-
tion that the commission was written on an old blank
form which was printed and used during the admfnistra-
tion of one of your predecessors in office, and on which
there was printed at the bottom thereof these word‘s:
"No expenses whatsoever will be allowed
or paid by the State of Texas unless special-
ly stipulated and embraced in the above ap-
pointment **I
Since the foregoing quotation was embraced in
the agent’s commission, we must determine whether you
may now legally approve and certify to the Comptroller
for payment the account of the agent for the actual and
necessary expenses incurred by him In performance of his
duties, We believe our answer is controlled by Article
1005 and Section 1 of Article 1006, V. C. C. P,, and Item
16 of the current appropriations made to the Executive
Department 0 Article 1005 and Section 1 of Article 1006
read, respectively:
Article 1005$
‘When the Governor deems it proper to
demand a person who has committed an offense
in this State and has fled to another State
or territory, he may commission any suitable
person to take such requisition. The accused,
if brought back to the State, shall be deliv-
ered up to the sheriff of the county in which
it is alleged he has committed the offense.”
Article 1006 0
*‘Section 1. The officer or person so
commissioned shall receive as comnensation the
actual and necessarv traveline exuensea upon (
recuisition of the Governor to be allowed by
such Governor and to be paid out of the State
Treasury upon a certificate of the Governor
reciting the services rendered and the allow-
ance therefor .,‘I (Emphasis added)
Hon..Beauford H. Jester - Page 3 (V-520)
Item 16 of the Appropriations made to the Exe-
cutive Department is an appropriation of $25,000 for each
year of the current biennium for "Returning V'ugitives
from Justice,11
Article 1006, V. C. C. P, 3 before it was amend-
ed in 1935 (Acts 44th Leg,, ch. 162,p0 412) read:
"The officer or person so commission-
ed sah 11 ecefv
the Governor shall allow for such service
to be paid out of the State treasury upon'
a certificate of the Governor reciting the
services rendered," (Emphasis added)
The amount to be paid to an agent of the State,
commissioned by the Governor under the provisions of Arti-
cle 1005, V. C. C, P,, was by Article 1006 left to the dis-
cretion of the Governor, Brightman, Sheriff, v. Sheppard,
Comptroller (1933), 122 Tex, 318, 59 S.W.2d 112. Article
1006, prior to its amendment in 19351 did not specifically
provide, as it does now, that the officer or nerson so cog-
missioned shall receive as comoensation his actual and nec-
essary traveling exnenses to be alioved by the Governor and
to be paid out of the Ssate Treasury npon a certificate of
the Governor reciting the services rendered and the allow-
ance therefor.
A very material change was made in Article 1006
by the Amendment of 1935* Prior thereto, it made no men-
tion whatever of traveilng expenses of the agent, nor did
it fix any rule for the guidance of the Governor in deter-
mining the amount of compensation he could allow for all of
the agent$s services, The amount of compensation was left
entirely to his discretion, Whatever amount he allowed,
whether adequate or inadequate, or none at all, was final.
The amended statute is plain, definite and unambiguous.
It clearly provides that an agent of the State commission-
ed by the Governor, as was the officer in this instance,
shall receive from the State of Texas as compensation for
his services his "actual and necessary traveling expenses."
The amount of such expenses may be definitely determined,
for the statute contemplates that the expense account of
the agent will be itemized when presented to the Governor
for approval and certification to the Comptroller for pay-
ment, The Governor may require such verification of such
an account as he deems proper and may refuse any item
thereof which he thinks is not a necessary expense.
Hon. Beauford H. Jester - Page 4 (V-5&!
It is our opinion that the Legislature has made
the payment of such expenses, upon approval of the Gover-
nor as to the correctness thereof, an obligation of the
State of Texas and has made an appropriation to discharge
that obligation.
Since the payment of the actual and necessary
traveling expenses of an agent of the State is an obliga-
tion of the State, it is our opinion the Legislature in-
tended that all such obligations should be paid without
exception by the State, It is our further opinion the on-
ly discretion which the Governor has when an account for
such expenses is presented to him for approval is to de-
termine the correctness thereof, and, when an account is
approved, it then becomes his duty to certify the same to
the Comptroller for payment. We, therefore, conclude that
your question should be answered in the negative.
SUMMAFiY
Section 1 of Article 1006, V. C. C. PO,
makes the payment of all actual and necessary
traveling expenses incurred by an agent of the
State, commissioned by the Governor in accord-
ance with the provisions of Article 1005,
v. c. c. P0 9 an obi:gation of the State of Texas,
In order for an agent, commissioned by the
Governor in accordance with the provisions of
Article 1005, V. C. Co P, 1 to be paid his actual
and necessary traveling expenses, it is not nec-
essary that a stfpuiatfon providing for such pay-
ment be inserted in the commission.
When a commission issued by the Governor to
an agent) under authority of Article 1005, V.c,C.P.,
contains no specific stfpulatioh that the actual
and necessary traveling expenses of the agentwill
be allowed, but does contain a provision to the
effect such expenses will not be allowed unless
specifically stipulated therein, such a provision
is contrary to the plain provisions of Article
1006, v. Co Co P,, and is whclly ineffective to
Hon. Beauford 8, Jester - Page ~5 (V-s2izoj
defeat the right of the agent to collect
. such expenses or to prevent the Governor
from approving his account for payment.
Yours very truly,
ATTORNEYGENERAL
OF TEXAS
Bytiti
Bruce W. B
BWB:wb Assistant
APPROVED:
IRST ASSISTANT-
ATTORNEY GEXERAL