Untitled Texas Attorney General Opinion ( 1971 )

August 19, 1971
Honorable Robert S. Calvert Opinion No. M-939
Comptroller of Public Accounts
State Finance Building Re: Questions relating to certain
Austin, Texas travel expenses of State em-
ployees, as provided for in Senate
Bill 11, 62nd Legislature, R. S. ,
Dear Mr. Calvert: 1971.
Your recent letter requesting the opinion of this office concerning
the referenced matter provides, in part, as follows:
“Article V, Section 12a, Second Paragraph of
Senate Bill 11 of the Regular Session of the Sixty-
Second Legislature provides as follows:
‘Reimbursement for out-of-state trans-
portation for the use of personally owned auto-
mobiles together with per diem shall never
exceed the cost of commercial tourist class
transportation from the nearest airport and the
per diem required had the employee traveled
by such conveyance. The determination of the
allowance due owners of personally owned auto-
mobiles in compliance with this paragraph shall
be as follows: (1) Per diem shall be determined
by the use of an airline schedule which would
have sufficed for the performance of the official
business. (2) Expenses of transportation to air-
fields from points where commercial air trans-
portation is not available shall be allowed in ad-
dition to the cost of first class commercial air
transportation. (3) When additional passengers
are conveyed on out-of-state trips in personally
owned auto.mobiles they shall receive as their
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Honorable Robert S. Calvert, page 2 (M-939)
expenses per diem based on automobile travel
time. (4) Persons traveling to points not served
by airlines shall receive mileage and per diem
based on actual miles traveled and other expenses
as authorized ekewhere in the Act for out-of-state
travel. ’
“An examinati,on of this provision will reveal two things:
(1) that it provides, in the first part of the paragraph, that
reimbursement for the use of personally owned automobiles
shall never exceed the cost of commercial tourist-class
transportation from the nearest airport and (2) that it pro-
vides that where a person resides at a place not served by
an airfield, he shall be entitled to be reimbursed for mile-
age to the airport and the cost of first-class air transporta-
tion.
-
“You will note that in addition to the transportation al-
lowances in Section 12a, the second paragraph, the Legis-
lature has, in four instances in this paragraph, limited the
employee to a per diem allowa.nce which would have sufficed
had he actually flown by commercial transportation. An ex-
amination of the Appropriation Act will reveal that under the
heading, “Per Diem Allowances - Section 13a, ” the second
paragraph provides as follows:
:Each employee traveling on state business out-
side of the boundaries of the State of Texas shall re-
ceive reimbursement for the actual cost of meals,
lodging and incidental expenses, not to exceed thirty-
five ($35. 00) per day. When both in-state and out-of-
state travel occur in the same calendar day, the rate
of travel allowance for all travel in, that day shall be
in an amount not to exceed thirty-five dollars ($35. 00)
per day. ’
1, . .
“Article V., Section 12 b provides in part, as follows:
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Honorable Robert S. Calvert, page 3 (M-939)
.
I
. . The rate of reimbursement for any
employee for whom funds are appropriated in
this Act, for air transportation shall be tourist
class unless tourist class is not available . . . ’
“I seek your advice on the following questions:
“( 1) What interpretation should be placed upon
Article V, Section 12a, Second Paragraph as to what
should be allowed to State employees and officials who
use their personally owned automobiles in traveling
out-of-state: the cost of tourist transportation in one
instance, first-class in another, or first-class or tourist
in both instances?
“( 2) What interpretation should be placed as to the
amount of per diem allowed while traveling outside of
the State in their personally owned conveyances?
“(3) If you hold that the $35. 00 a day provision under
the per diem allowance should apply, please advise if the
formula defining ‘day’ (Section 13b) should be applied.
“(4) Section 13a, Second Paragraph provides the
amount that can be expended for meals, lodging and in-
cidental expenses each day. In applying this restriction,
what should be considered an incidental expense?
‘I( 5) I have been advised that some airlines do not
have a tourist rate; but have what is called a ‘standard
fare charge’ which is comparable to a tourist rate. If
the tourist rates are not available, must a State Employee
secure comparable transportation or is he entitled to re-
imbursement for first-class transportation . . .‘I
With reference to your first question, it should be noted that the first
sentence of the second paragraph of Section 12(a) of Article V, quoted in your
letter, refers to tourist class air transportation, and that the portion of Section
12(b) of Article V, also quoted in your letter, likewise refers to tourist class
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Honorable Robert S. Calvert, page 4 (M-939)
air transportation. Notwith standing the foregoing, item (3) of Section
12(a) specifically refers only to first class air transportation.
The law applicable to the situation posed by your first question
has been stated as follows:
“It is not the function of the judiciary to correct
legislative errors, mistakes, or omissions. If the
language of a statute is plain, a court will not elimi-
nate or supply a word or clause on the supposition that
it was included or omitted by inadvertence. I’ 53 Tex.
Jur. 2d 203, Statutes, Sec. 140.
See also, Shoppers World, Inc. v. State, 373 S.W.2d 374 (Tex. Civ. App.
1963), aff’d sub nom State v. Shoppers World, Inc. 380 S.W.2d 107 (Tex.
Sup. 1964); Winder v. King, 297 S.W. 689 (Tex. Civ. App. l927), aff’d 1
S.W. 587 (Tex. Sup. 1928); Ratcliff v. State, 106 Tex Grim. 37, 289 S.W.
1072 (1926); and Creager v. Hidalgo County Water Improvement Dist. No. 4,
283 S.W. 151 (Tex. Sup. 1926. )
Your first question is, therefore, answered as follows: the expenses
of transportation to airfields from points where commercial air transportation
is not available shall be allowed to state employees on out-of-state business in
addition to the cost of first class commercial air transportation, as expressly
provided in item (3) of the second paragraph of Section 12(a) of Article V,
quoted supra.
Your second question is answered as follows: the amount of per diem
expenses allowed state employees while traveling out-of-state in their per-
sonally owned conveyances shall not exceed $35.00 per day, for the actual
cost of meals, lodging and incidental expenses, as provided in the second para-
graph of Section 13(a) of Article V, set forth in your letter. This $35. 00 per
diem expense shall be in addition to the reimbursement set forth in the second
paragraph of Section 12(a), quoted supra, which provides, in part, that “Re-
imbursement for out-of-state transportation for the use of personally owned
automobiles together with per diem shall never exceed . ” (Emphasis
added. )
In view of our answer to your second question, we are of the opinion
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Honorable Robert S. Calvert, page 5 (M-939)
that the formula defining “day” set forth in Section 13(b) of Article V, is
applicable to both state employees traveling on in-state and those traveling
on out-of-state business. Your third question is, therefore, answered in
the affirmative.
As regards your fourth question, “incidental expenses” has pre-
viously been defined by this office to include those expenses which arise
as reasonable incidents in connection with the authorized business trip of a
state employee. See Attorney General’s Opinion No. M-301 (1968), for ex-
ample. We construe the term “incidental expense” to include all such ex-
penses, as well as any other minor disbursements necessary to a state em-
ployee traveling on out-of-state business. See e. g. , the various illustrations
of the term “incidental expenses” set forth in 20A Word’s and Phrases 111-13
(1959. )
We are of the opinion that your fifth question must be answered in the
affirmative. Section 12(b) of Article V, quoted in your letter, provides, in
part, that:
0 . . . The rate of reimbursement for any employee
. for air transportion shall be tourist class unless
tourist class is not available . ” (Emphasis added. )
In view of the underscored portion of the foregoing provision, we hold
that a state employee is entitled to reimbursement for first class, or any other
class of, air transportation, if tourist class transportation, eo nomine, does
not exist on a certain commercial airline carrier, or in the event that a tourist
class seat is not available on a flight that a state employee must take in connec-
tion with necessary state business. In this connection, the statement by the em-
ployee of the non-availability of such transportation on the State of Texas Travel
Voucher should suffice.
SUMMARY
Pursuant to Senate Bill 11, 62nd Legislature, R. S. ,
1971 (General Appropriations Act for the fiscal year com-
mencing September 1, 1971):
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Honorable Robert S. Calvert, page 6 (M-939)
(1) the expenses of transportation to air-
fields from points where commercial air trans-
portation is not available shall be allowed to
state employees on out-of-state business in addi-
tion to the cost of first class commercial air
transportation, as expressly provided in item (3)
of the second paragraph of Section 12(a) of Ar-
ticle V of the Bill;
(2) the amount of per diem expenses allowed
state employees while traveling in their person-
ally owned conveyances on out-of-state business
shall not exceed $35. 00 per day, for the actual
cost of meals, lodging, and incidental expenses
(as provided in the second paragraph of Section
13(a) of Article V cf the Bil,l), in addition to the
reimbursement set forth in the second paragraph
of Section 12(a) of the Bill;
(3) the formula defining “day” contained in
Section 13(b) of Article V of the Bill is applicable
to both state employees on in-state business, as
well as those on out-of-state business, and such,
formula is to be utilized in calculating the per diem
allowance set forth in Section 13(a) of Article V of
the Bill;
(4) “incidental expense, ” as that term is used
in the second paragraph of Section 13(a) of Article
V of the Bill, includes all those minor and necessary
expenses incidentally incurred by a state employee
traveling on state business, including parking, medi-
cal, and laundry expenses, inter alia; and
(5) pursuant to Section 12(b) of Article V of the
Bill, a state employee is entitled to reimbursement
for first class, or any other class of, air transporta-
tion, if tourist class transportation does not exist on
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Honorable Robert S. Calvert, page 7
(M-939)
a certain commercial airline carrier, or
in the event that a tourist class seat is not
available on a flight that a state employee
must take in connection with necessary state
business.
V&y
,7truly yours,
y General of Texas
Prepared bv Austin Brav
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Grace
Jay Floyd
Mel Corley
Houghton Brownlee
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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