Untitled Texas Attorney General Opinion ( 1946 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
A``ORNFI GLNERAL
:: ,:
Eonarable GeurgeB. Sheppard
C-l ptroller of Public Accounts
Austin, %xas
Pi
Dear sir: Opinion No. O-7072 .:' 1
Re:
,
rms of this bill 8h8U
under the stuw condo-
Qemral Dspartmsntal
lslanguagelimitthB amount that
agelnat the ap~o;n?iatlons made in
eve mentioned, in payment of travel-
a to Justices of the Courts of Civil
Ap$@.s, District Judgea 8nd Attorneys, and Meen-
bers of the Advisory Judlcl8.l.Council, mentloned
In said bill? And are such 0friea3 required to
obtain receipts for refund of expenditures a8
provided for In the Gener8S l?epartmentelApproprl-
atlon Bill? The General Departmental Appropriation
Bill limits the amount that Oan be paid to
OfflC181S and employee8 t0 $4.00 per dey,
and requires such off101818 to obtain re-
celpta. And are such offlcl8ls, as mentioned
in E. B. No. 215, limited to the mlleege as
set out in (11)s of Seotlon 2 of the Oeuerel 1
Departmental Appropriation Bill?"
!?hefolloulog ar8 the Legislative eneotments generslly
pertluent a
(1) Article 6823, 8s amended Acts 1931, 42ud Leg., .p.
372, oh. 218, Sea. 1, regarding traveling expenses reeds as fol-
lowsr
"The tl'SveliI@8Ildother llSOe888~ 8X-
psuses iucurred by the various offioers, as-
8istants, daputle8, clerks end other employees
in the verloua dapartmants, institutions,
bosrda; oomml88ion8 or other subdi~i8loz~3of
the StSt9 00VbrUm8Ut, in the 8OtiVe diSOb8rge
of their duties shell ba awAs 8re -speoiSio8lly
fixed and appropriated by the lsglalature lr:
the genarsl approp~letion bills providing fok
the.expen8es of the State ffov&uuent ~from yeer
to year?Uhea appropri8tIon8 for;.travelingex-
peM,ea~.qrsmade 8aJ:~8)l~8we~s'.~::p8paPeu~to
offltilalaor employee8 for-:the~.-i.i$usb
Ti& privately
ovned 8utoznObileSShall b8 On 8 b88i8 o'f;SOtUal
mileage trevaled for eaoh trip or all trips
covered by the expanse aooounts submitted for
payment or 8lloUSnOe from 8uoh epproprletlon8,
and suoh papnmnt or 8llou8we shall be mede at
a rate not to exoeed five (54) cents for eeoh
mile Sotually traveled> and xl0eddItlon81 ex-
pense Incident to the operetlon oS suoh eutomth
bile shall be alloved."
(2) The seoond paragraph U Seotlon 5 of the Judiclery
ApprOprlStiOu Bill, being Chapter 379 of the Acts 1945, 49th Le.g.,
p, 959, reads 88 follovsr
"Traveling expenses paid to all offioers
and employees under the terms of this bill shall
be the same amount and paid under the same con-
ditions as provided for In the General Department
Bill."
Hon. Geo. B. Sheppard - Page 3
( ) Section 2 (1l)f of the Genersl Dep8rtmentelApproprl-
;;;;nWilll ?Acts 1945, 49th Leg., Ch. 378, p. 943-4) provides as
:
vnless otherwl8e 8p8oiilc8lly provided
by the stetutea, it is provided that any of- ,
flaer or emplqee who trevels On Offioia1
state business end who use8 his own oar while
so doing shall b8 reimbursed for the u8e of
said car on the basis of the total mileage
travelsd during auy celendsr month et the
follaving rsteg Five oents (54) 8 mile for
the first thousand miles traveled, four cents
(4#) a mile for the seoond thousand miles
traveled, and three cents. (34) 8 mile for the
third thOU88rtdmiles trsveled, end two aents.
(2$!).8mile for eech mile tr8veled L.nexoeaa
of three thousand mllea. Before the 00mp~
troller ah811 i8SU8 eny W83?rSut fOr~MimbUESe-
ment, the said officer or employee shall file-
en 8ffidSVit -with the Coin&?rollershowing the
point of origin end,the point of deatlnatlon~
of e8Oh trip end the mileage aotuellg trsvebd.
This provision shall also epply to lntra-citg
mileage. If the Comptroller is of the opinlcn
th8t aeid offloer or employee aId not t8bp th?
shortest praotloel zyute, he ahall hepe'tha
euthorlty and it shall b hiS~.dutyto OOmpUte
the mlleege of the-shortest-prsotloel route,
between the point of origin end destlnatlon~
of eeoh trip vie Intermediate pOintS visited,
8lldh8 ShSll iSSUe hls~werrant in reimburse-
ment therefor on the b8Sis of the above rete.
Ho moneys herein epproprleted ah811 ever be
spent to pay the treveling expenses of eny
State employee to eny type of oonventlon wlth-
in the Stete or without the State except upon
8dV6nCe written approval of the Attorney Gene@81
as being for State's business."
(4) Section 2 (1l)g of said General Departmental Approprl-
stlon Bill provides aa follows:
"All employees traveling et the expense
of the Stete are hereby limited to the amount
of Four ($4.00) Dollera per dey expenses for
meels sud lodging; it being apeclficallg pro-
vided that the employees shall obtain receipt
for all amounts expended for 611 items of lodg-
ing and other expense except meals, and shall
Hon. Geo. H. Shepperd - Page 4
file aeld receipts with their expense ao-
comb, which expe.xaeaooounts must be duly
itemized and sworn to; Sad the Stete Comp-
troller is h8reby expressly prohlblted from
p8ylng suy expense 8ocOUUt8 whloh 8re UOt
itemized and sworn to and SooOOIpSniedby
receipts as herein provided."
(5) Seation 2 (12)f of the General Departmental Approprl-
etion Bill providesa
"It la expressly provided that the
provisions of Subaeotlon llg of thla Aot
with refewnos to limitation of 8mOwt of
trevellng exp8nae ah811 not epply to the
Governor, tha Lleuten8ntQwernor, end the.
member of Commlaalon8 who reoelve nonsalary
or pep diem, when trsvellng in or out .of.
the 8tStO. nor shall S8ld protiaion apply,
t0 the Addutent GeWr81 8nd hia r8pZWent8-
tlves when eppearlng lnU88hlngton, D. C..,
before the V8k Depertmant, the Attorney Gedez-
81 and his easlstenta whsn eppearlng be-'
fore the Supmao Court of the United Skrtes.
and Federal Agencies In Washington, D. C.,
nor the iaambsraof tha R8llroad CommI8alon
when eppearlng before tha Interstate Com;~.
merae Oommlaalon or otherBedera1 Comk
atlasion in Washington, D. C.;~'~no~,'tti%&-
ber8 of the Stete Highway Ooaaalaaionand the
Emoutlve Ofilcer when Sttending hoerings
or con8ultlng Governmant egenalaa in Usshing-
ton, 0. C.'
We paso now t0 8 conalderetlon Of your SpbOlfiO question8
6s ap&ed to the officers inquired about.
A. JUSTICES OF THE COURTS OF CIVIL APPEAXS.
Article 1738, R.C.S. 1925, grants authority to the Supreme
Court of Texss to equalize the amotit of bUSlne8s upon the dcoketa
of the sever81 Courts of Civil Appeels, end requires the t the Jua-
tices of the Court to which suah cesea are transferred shall hear
or81 ergwent on such ~8~8s et the pleoe from which the cases have
been originally trenaferred. This A??tiClethen provides:
"Thw eotual end neceasery trevellng end
living expenses of the Justices of seid Courts
Hon. Geo. 8. Sheppard - Peg0 5
In hearing or81 argument at the plaoe fro+
whloh suoh case8 are tr8MferIWd shell be
borne by the State, aud for payment thereof
the Lsglalature ah811 mske appropriation."
!Rw quoted provision wsa put in the statute in 1927 when
the Leglaleture flrat required the Jwtloee of the Courts of Civil.
Appeslr,~totravel to the place8 rrom which the 088ea were originally
transferred. Then in 1931 the Isglalature ewcted the 6amndlPentto
Artlole 6823 whioh pieced 6 llmlt8tlon on the epproprletlon which
could be made for~lmburasmant to employee8 or offlolela for the We
of prlvetely wned automobiles for nscesaery trsvel on Steteca bW%aa :
1 1iml.tt1 kn t the Legislature under the well-eatebllahed
~$8 of l&,"~<~lt ~%n"am8nded Artlole i738 in 1933 end in
1941. Since no effort was m8de to take travellug expeaees of the..
JwtiOe8 In privet8 automobiles out of the lim~tatlon expressed in.
Artlola 6823, it must ba held thst they 8re bound by such llmlt8tlon.
3t8te v. Pr8etorl8n8, (Supmms Comt) 186 S.W. 26 973.
The matter k'trevellng end llvlug expenses other than for
the we of.prlvately wned eutomobile8 18 governed by another rule.
!Pherewas no general llmltatlon in exlatenoe in this mgerd et the
titPe Of thb enactment and I'e-eIlaOtmentof the “D(tO~SS8~ end BOtWl"
expens& prwialon, and thla provision of Artlole 1738 must pravsll.
Townsend we Terrell, 118 Tsx. 463;56 SW 26 1063; 39 Tex. Jur. 150,
Sea. 6?. Furthermore, ,ltis aettled lew .ln this State th8t a statute
general In Peture 08paOt be am8n;dsdby 8 "rlderN,ln the epproprletlon
bill. KOOm VI 3hSppSl’d, 1% s.ti. 26 559.
It followa that it is the opinion of this department that.
the Jwtloea of the Courts of Civil Appeals are entitled to r8lim-.
buraement for aetwl expenses not to exceed five oenta per mile for
eaoh mile aotwlly end naoeaserily traveled by prlvstely owned auto-
mobiles In the discharge of their offlolal duties; and for other
eatwl 8nd neoeraary travel and living SxpeMes without linitatlon.
They 8lw not limited $0 $4.00 per day for meels end lodging under the
provisiona of Section 2(11)g of the General hpSrtlwtd.81 Appropriati.&
Bill.
There la DO provision la Artlole 1738 regulating the form j
or mathod of epplloatlon for reimbursement by the Jwtioes of the
Courts of Civil AppeSlS. It osnnot be doubted that the Legisleture,
in spproprlating money for such reimbursement, oan meke reasonable
regulations with reference thereto, 8s long 88 they do not confllot
with a specific statute.
.!.
eon. 0.0. xi.sheppard - page 6
Zectlon 2 (1l)g of the General Departmental Appropriation
Bill requires certain reoelpts to be obtained by "all employees
trevellng at the expense of the State". C~rtalnly the Justices
ere not employees, but ara officers. Hoverer, Sectlon 2 (12)f
indicates that the Legislature in using the term "employeea" intended
to include o?fi.~ers and employeea, for in that section it exempt8
from the provlslona of "Subsection llg of thle Act with reference to
'the llmltatlon of amount of traveling expense~vthe Governor, the
Lleutenant-Qovernor, the Adjutant General, the Attorney General, end
'oerteln others, both offloera an4 elPployee6. They are not, hovever,
exempt from obtalnlng the reociiptr.
Therefore, it la our opinion that-the Justlaes shell be .
required to obtain the receipts speolfled In the 'rider' to the
General Departwntsl Appropriation Bill.
B. DETRICT JUDGES AIVDATTGqNsyS.
Article 6820, regarding the oxpenaee of distrlot judgea
and district attorneys vben engaged In the discharge of their of-
fiolal dutfes, provldest
"All district judges and district attorneys
vhen engaged In the discharge of,thelr offlolal
duties in any aounty In this State other than the
county of their residence, ahsll be allowed their
aotuel and nedoeaseryexpenses while aotually en-
gaged~in the discharge of.swh~dutlee, not to ex-
ceed four dollara per day for hotelbllle, and not
to exoeed four cents a mile vhen traveling by rall-
road, and not to eureed twenty oents a mile vhen
traveling by privately aonveyanoe, In going to and
returning from the place vhere awh~dutles are dis-
charged, traveling by the nearest practloal route.
Sunh offloera shall ala0 receFve,the aatuel and
necessary postage, telegraph and telephone ~expenaes
inaurred by them in the actual dlsaharge of their
duties. Such expenses shall be pald by the State
upon the sworn and itemized account of eaoh dlatriat
judge or attorney ontitled thereto, showing such
expenses. In districts containing more than one
county, such expenses shall never exoeed In any one
genr $lOO.OO for eaoh county in the distrlot; pro-
vided that no district judge or attorney shall re-
ceive more than $600.00 in any one year under the
provlslona of this ert1ol.e. The aacount for said
servioes shall be recorded in the official minutes
of the district court of the county in which such
judge or attorney resides, respectively."
Hon. Gee. Ei.Sheppard - Page 7
This statute was enacted in ,I923 (Acts 1923, pb 50).
-Article 6823, aa has been stated, vaa amended in 1931 to
restrict the allwancea for traveling expenses for the use of privately
owned automobiles to an amount .not in excess of five cents a mile.
This latter statute was oonstrued by Couference.Opinion No. 2934,
dated Hovember 14 1933, (Biennial Report of the Attorney Qeneral,
1932-1934, p.,3321 to apply to end limit the reimbursement to dis-
trict judges and'dlstrlot attorneys not to eraeed five oenta per
mile for each mile actually and neoessarily traveled by private oon-
veeyeme in the discharge of th?ir offloial duties outside of the
counties of their residence.
It will be aeon thst AH&ale 6820 a'llws the,dlstrict 3
judge8 and district attorneys "actual end necsaeary expenses . . .
not to exceed four dollarclper day for hotel bills." Thls is
speoiilc legislation, and, for the reasons stated in the preceding
aectlon-of -this opluion, takes precedence over the provlslous of
the 'rlder"'to the General Departmente1 Appropriation Bill. Also,
Article 6820 provides that "Such expenses shall be paid by the State
upon the aworn and ltemlsed aocount of each district judge or et-
tommy entitled thereto,.shwiug such expensea."~ This provision
vi11 iMe.preoedence over the Appropriation Bill "rider' provision
requiring receipts for certain items of expense.
xt 1s the opinion of this department that district judges
and district attorneya are entitled to reimbursement aa folltis:
(1) not to exceed'five cents permile for each mile'actually and
necesscir5.ly
traveled by private conveyance in the discharge of their
cfficlal duties outside of the countles $% their~resldence; (2) not
to exoeed four dollars a day for hotel blllsr subject to the statutory
llmltatlon that in districts containing more than one county, the
total of the enumerated expense8 ahall'never exceed in any one year
$100.00 for each county in the district, and that no dlstrlot judge
or attorney shall receive more than $600.00 in any one year under the
provlslom~of said article. It la the further opl.aion,ofthis depart-
ment that euch district judges and attorneys shall not be required
to produce the receipts referred to in the "rider" to the General
Departmental Appropriation Bill.
C. ADVISORY JUDICIAL WlJmCIL.
Regarding the expenses allwable to members of the Advisory
Judicial Council,,Article 2328a, enaoted in 1929 (Acts 1929, 41st Leg.,
1st c. S., p. 51, ch. 19), Section 7, provides:
HOR. oeo. H. sbappard- Page 3
%o ._
wlaber
- or
__theC0umcLlahell_racelw
_ a?.
cc4qmmstrcarwnis aemxcbs as sum IDbmtw,nut
shall be peld his actus trewliag end other moos-
sary expenses lmurred in tlm diucberge of his
dutlm rls euchsambartobe psld upcnveriiled,
lteiiiwa aoccuut rpprcwd by the Presidentof such
CCtlMil.'
Also, Section2 (12)f of the GeneralA~Oprletlcn BllL
apaclfiosll~-prmdear
"It is expre832yprovidedtbeg the pxwlaious
of SubsectlCit llg ai this Act with mfereuce to
~llaltationotaoouut of tzevell.ngoxpenme ahsll not
applyto... ttm wmbew or CamissioRa vho m-
ceiws no aslaryor par diem, vEen ?xswLl.ngIn e
out.orth State. ...*
Thl.scouDoil%s, inccntesplsticu~lev,a Ccausis-
afar rtmlcow8 vlthln the expressexeaptlon quoted. It :s Was opinion
or this depmtmoat that the maborn of ,tIaoAdvlrciry JudlctilCoumil
sm ontitled to xMabursewot SOP (1) not to exueedflw cents per
ail10for esch ad.16ectusllytraveled by pr vote cw~nce in the
diachrxvp of their duties a8 such member: tArt. 6523 ccctrols); (2)
othermceaaeryexpeuaea soincrPrsd,wl~houtlimltstlon. It !a cur
rurttmrop1aloa-fbt awh mwwrs em uot wqulred to prodwe the
receLpt8 refereedto La the %der" to the Geaeml 9epsrtmsntel Ap-
pxwprlst1oRm11, s1mo Avtto1e~2328sspec%i3.c8l~y~pm?ldes that swla
lxpeusesahellbepsld "upcaw96riiLed. ltem%sed8cOOUnt4tpprcnmdby
the Pmsldent aC sue&Ccumit".
Trustingthst the fwegotng sufiioleatly
enswra JW
rme* we are
ATTC~GlWERALWTEXAS
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