Untitled Texas Attorney General Opinion ( 1977 )

The Attorney General of Texas
November 10, 1977
The Honorable Bob Bullock Opinion No. H-1089
Comptroller of Public Accounts
L.B.J. Building Re: Use of aircraft
Austin, Texas 78774 owned or leased by
State agencies.
Dear Mr. Bullock:
you have asked several questions about provisions of
article V of the General Appropriations Act concerning the
use of State-owned or leased aircraft. Your first four
questions inquire about flight logs and the information to
be contained in them. However, since the current Appropria-
tions Act does not refer to the maintenance of airplane
flight logs, we will not address those questions. There
are various federal record keeping requirements which apply
to aircraft, but your request is not directed at them. See,
e.g., 14 C.F.R. 99 43.9, 43.11, 61.51 (1977).
Section 53 of the current Appropriations Act (Acts 1977,
65th Leg., art. V, sec. 53) provides in part:
Sec. 53. ANNUAL REPORTS AND INVEN-
TORIES. None of the moneys appropriated
in this Act in Articles I, II, III, and
to . . . [various agencies receiving funds
in Article IV] may be expended after a
period of one hundred (100) days follow-
ing the close of the fiscal year, unless
there has been filed with the Governor,
the State Auditor, and the Legislative
Budget Board an annual report as of
August 31 of the preceding fiscal year
by the executive head of each depart-
ment or agency specified in this Act,
showing the use of appropriated funds.
The annual report shall include the
following:
. . . .
p. 4469
The Honorable Bob Bullock - Page 2 (H-1089)
e. A summary of the use made of state
owned aircraft or aircraft operated under
long term lease or rental. The summary
shall include aircraft description, date
purchased or leased, cost, hours flown,
number of flights and destination, number
and names of passengers and the official
business purpose of each flight.
Acts 1977, 65th Leg., art. V., 8 53.
You inquire whether persons other than the agency's employees
may be transported on its airplane while it is in use on official
state business, and if so, what information must be recorded con-
cerning such persons. You inform us that, when seating space is
available, persons such as employees of other State agencies,
federal officials, officials of other states, journalists, spouses
of State officials, and other private persons have been transported
on State aircraft.
The flight must be for official business and there must
be a business reason for the presence on it of any of the people
you name. See Attorney General Opinions H-602 (1975); H-184
-(1973). Travel regulations in other states permit non-employees
to ride in state vehicles if they are traveling on official busi-
ness. Minnesota Transportation Division Rules and Regulations,
rule I B; Nevada State Administrative Manual, S 0635 at 22.
What constitutes official business will depend on the powers
and duties of the agency under consideration, and whether an in-
dividual's presence on a State flight furthers its business pur-
pose will depend upon all the facts and circumstances of each
case. Since you do not inquire about any particular trip, we
cannot make the necessary individual determination. Nor can we
give an exhaustive definition of official business for purposes
of your question, since that would require a survey of the powers
and duties of all state officials and agencies. We can, however,
give you some examples from prior opi.nionsof the official busi-
ness purpose of travel by various persons, including private
citizens, and thus point out considerations relevant to the
determination of particular cases.
Attorney General Opinion O-4167 (19411 noted that travel
expenses of University employees could be paid if incurred for
State business, and that
"State business" signifies the accomplish-
ment of a governmental function; it requires
p. 4478
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. .
The Honorable Bob Bullock - Page 3 (H-1089)
that the means and method adopted be reason-
ably necessary; it implies that the particu-
lar governmental function involved be one
directly entrusted to the institution or
department assuming its accomplishment.
Id. at 7. Applying this standard, it approved payment of travel
expenses for public relations purposes, for the purpose of meet-
ing with journalists, contacting foundation officials and con-
ferring with potential donors.
Other examples of State business justifying the payment of
travel expenses include attendance at a Commission meeting by
a Commission member, Attorney General Opinion H-193 (1974); atten-
dance at a training school by a State employee at the direction
of his agency, Attorney General Opinions WW-83 (1957): S-209
(1956); attendance at a convention by a board member at the
direction of his board, Attorney General Opinion C-761 (1966);
and attendance by a Railroad Commission representative at a
dedication ceremony sponsored by the Historical Survey Committee,
Attorney General Opinion M-121 (1967). See also Madden v. Riley,
128 P.2d 602 (Cal. Ct. App. 1942); Louisville and Jefferson County
Board of Health v. Steinfeld, 215 S.W.Zd 1011 (Ky. Ct. App. 1948).
In Attorney General Opinion H-275 (1974) we concluded that em-
ployees of the Water Quality Board who spoke to private citizen
groups at the Board's request could be reimbursed for travel
expenses incurred during these speaking engagements. We noted
that the statute required the Board to encourage private groups
to become involved in water quality control, and that providing
employees for speaking engagements helped carry out this duty.
Thus, the employees were traveling on State business and could
be reimbursed in accordance with travel regulations set out in
the Appropriations Act.
The Attorneys General of two other states have articulated
standards for the use of state-owned aircraft by state officials.
The Attorney General of Pennsylvania concluded that the Governor
could use state aircraft without reimbursing the state where
the predominent purpose of the flight was official business and
personal business was secondary. Opinion No. 75-20-B. The
Attorney General of Oklahoma determined that the Governor had
wide latitude to use state aircraft for official purposes and
he noted that transporting a Supreme Court Justice to a hearing
on an urgent matter was undoubtedly official business. Opinion
No. 76-201.
The following provision of the Appropriations Act is
. relevant to your inquiry about transportation on an agency
aircraft of persons employed by other agencies:
p. 4471
. .
The Honorable Bob Bullock - Page 4 (H-1089)
It is the intent of the Legislature
that state-owned aircraft be utilized
by all agencies of the state. To de-
termine the extent to which this intent
is being met, agencies operating state-
owned aircraft shall file an annual
report with the Legislative Budget Office
detailing utilization by other agencies
and the methods used to increase the
utilization.
Acts 1977, 65th Leg., art. V, S 18a (4). The inclusion on a
flight of an employee of another agency carries out the legisla-
tive intent expressed in this provision. The employee must of
course be'traveling on official business. See also Attorney
General Opinion O-2258 (1940) (Liquor Control Board may pay
travel expenses of Assistant Attorneys General assigned to it).
This office has held that the State could pay the travel
expenses of unpaid citizen members of a civil defense committee
established under a federal-state contract which permitted the
payment of such expenses from federal funds. Attorney General
Opinion C-440 (1965). See also Attorney General Opinion M-999
(1971) (Department of Corrections plane used to return prisoners
from other states to serve time in Texas).
We have discovered no prior opinions concerning the trans-
portation of federal officials or the officials of other states
at State expense. However, authority for provision of such
transportation might be found in a contract with the federal
government, a statute providing for intergovernmental cooperation,
or a state benefit which would be realized by the transportation.
Se+s&ig;lT.C.S..arts. 695c, S 4 (4)! (12); 4413c-1; 4413,
Provision of transportation under such authority
would have an official purpose and not constitute the grant of
a benefit to a private citizen. Cf. Attorney General Opinion
M-263 (1968) (State agency may pavalary of employee assigned
to federal agency under grant providing reimbursement).
Nor do any prior opinions address the transportation of
journalists at State expense. We have, however, said that the
Legislature could provide rent free office space in the Capitol
to news organizations. Attorney General Opinions H-920 (1977);
H-184 (1973). We determined that the provision of free space
to the media for proper media purposes would not violate arti-
cle 3, section 51 of the Constitution but would serve the public
purpose of keeping the people informed about the transaction of
public business. In our opinion, an agency properly engaged
p. 4472
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The Honorable Bob Bullock - Page 5 (H-1089)
in disseminating information to the public, see Attorney General
Opinions H-275 (1974)7 O-4167 (19411, might under appropriate
circumstances include journalists on a flight on official busi-
ness.
We find no opinions regarding the provision of free trans-
portation to spouses of State officials, but we believe that
the federal tax treatment of travel expenses incurred by the
spouses of federal officials provideo some helpful analogies.
Such expenses are not deductible unless the spouse's presence
serves a business purpose. Weatherford v. United States, 418
F.Zd 895 (9th Cir. 1969). See Wilkins v. United States, 348
F. Supp. 1282 (D. Neb. 1972)aaffa without opinion, 486 F.Zd
1407 (8th Cir. 1973) (travel expenses incurred bv wife of
Foreign Service inspector on inspection trip wer; deductible
business expenses), and S. Rep. No. 768, 93d Cong., Zd Sess.
157 (1974) (certain trips on government aircraft by President's
wife were for official purcose. such as standins in for the
President). See also Unitid States v. Disn , i13 F.Zd 783
(9th Cir. 1969); Warwick v. United States, 6 F. Supp. 761
(E.D. Va. 1964).
Under circumstances similar to those that establish a
bona fide business purpose under federal tax law, we believe
the spouse of a public official engages in official business
so that the provision of free transportation will not consti-
tute the grant of a benefit to a private person in violation
of article 3, section 51. See also Informal opinion from office
of Attorney General of Utah to Director, Department of Finance,
September 12, 1977. The nature and duties of the office, the
traditional role, if any, of the officeholder's spouse, the
purpose of a particular trip and the spouse's connection with
that purpose are factors relevant to the determination that
there is an official purpose in a particular case.
When any person is transported on its airplane, section 53e
requires that his name and the official business purpose of the
trip be reported. The section does not require other identi-
fying information, such as title, but the reporting agency may
wish to include such information to help explain the official
business purpose of the flight.
YOU state that an agency may use an airplane belonging to
another agency without entering into an interagency contract,
and inquire which agency should include information about those
flights in its annual report. Since the purpose of the annual
reports required by section 53 is to show the use of appropriated
funds, we believe the agency whose appropriation pays for the
p. 4473
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The Honorable Bob Bullock - Page 6 (H-1089)
use Of the plane should include that use on it6 annual report. _
In mOst ca6e6, the agency that owns the aircraft would be the
proper agency to report us: of the plane while it is being
used by another agency.
YOU finally inquire whether any State agency ha6 authority
to promulgate guideline6 concerning the u6e and operation of
State-owned and leared aircraft. Each agency head ir responsible
for the proper custody and care o f the State property possessed
by his agency. V.T.C.S. art. 6252-6, S 5. The agency head has
considerable discretion as to the use of aircraft owned or leased
by his agency, subject to limitations in statute and the appro-
priationr act. See, e. Attorney General Opinions S-142 (1954);
O-4167 (1941). See aT-so V.T.C.S. arts. 6252-15; 6252-19a, 9 1.
SUMMARY
Article V, section 53e requires State
agenciee which rent or lease aircraft to
include in their annual report to the
Legislative Budget Board certain infor-
mation regarding u6e of the aircraft,
including names of passenger6 and offi-
cial businese purpose of each flight.
Persons such as employees of another
agency, officials of another state or
the federal government, journalists,
spouses of State officials and other
private persons may be transported on
aircraft operated by a State agency
when their presence on the flight fur-
thers an official business purpose.
Where one agency uses the airplane of
another, the agency whose appropriation
pays for use of the airplane should in-
clude that use on its annual report.
The agency head has considerable di6-
cretion with respect to use of aircraft
owned or leased by hi6 agency.
Very truly youre,
Attorney General of Texas
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p. 4474
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The Honorable Bob Bullock - -9 7 (H-1089)
APPROVED:
C. ROBERT HEATH, Chairman 2
Opinion Committee
jst
p. 4475