Case Information
*1 . . ,..’ .
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 Opinion No. O-7072 .:' 1
Dear sir: Re:
, rms of this bill 8h8U under the stuw condo- Qemral Dspartmsntal amount that lslanguagelimitthB 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?epartmentel Approprl- atlon Bill? The General Departmental Appropriation *2 Bill limits the amount that Oan be paid to
OfflC181S and employee8 t0 $4.00 per dey,
and requires such off101818 to obtain re-
celpta. And are such offlcl8ls, as mentioned in E. B. No. 215, limited to the mlleege as set out in (11)s of Seotlon 2 of the Oeuerel Departmental Appropriation Bill?"
!?he folloulog ar8 the Legislative eneotments generslly pertluent a
(1) Article 6823, 8s amended Acts 1931, 42ud Leg., .p. 372, oh. 218, Sea. 1, regarding traveling expenses reeds as fol- lowsr
"The tl'SveliI@ 8Ild other llSOe888~ 8X- psuses iucurred by the various offioers, as- 8istants, daputle8, clerks end other employees in the verloua dapartmants, institutions,
bosrda; oomml88ion8 or other subdi~i8loz~3 of the StSt9 00VbrUm8Ut, in the 8OtiVe diSOb8rge of their duties shell ba awAs 8re -speoiSio8lly fixed and appropriated by the lsglalature lr: the genarsl approp~letion bills providing fok the.expen8es of the State ffov&uuent ~from yeer to year? Uhea appropri8tIon8 for;.traveling ex- peM,ea~.qrs made 8aJ:~8)l~8we~s'.~::p8paPeu~ to offltilala or employee8 for-:the~.-i.i$usb Ti& privately ovned 8utoznObileS Shall 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 xl0 eddItlon81 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
( ) 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 thOU88rtd miles trsveled, end two aents.
(2$!).8 mile for eech mile tr8veled L.n exoeaa 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&?roller showing 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~.duty to OOmpUte the mlleege of the-shortest-prsotloel route, between the point of origin end destlnatlon~ of eeoh trip vie Intermediate pOintS visited, 8lld h8 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 *4 Hon. Geo. H. Shepperd - Page
file aeld receipts with their expense ao-
comb, which expe.xae aooounts 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 SooOOIpSnied by
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 non salary 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 iaambsra of 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 Ooaaalaaion and 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??tiCle then provides:
"Thw eotual end neceasery trevellng end living expenses of the Justices of seid Courts *5 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,~to travel to the place8 rrom which the 088ea were originally transferred. Then in 1931 the Isglalature ewcted the 6amndlPent to 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 : t the Legislature under the well-eatebllahed
1 1iml.tt1 kn ~$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 SW 26 973. The matter k'trevellng end llvlug expenses other than for
the we of.prlvately wned eutomobile8 18 governed by another rule. !Phere was no general llmltatlon in exlatenoe in this mgerd et the titPe Of thb enactment and I'e-eIlaOtment of 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, ,lt is aettled lew .ln this State th8t a statute general In Peture 08paOt be am8n;dsd by 8 "rlderN,ln the epproprletlon s.ti. 26 559. bill. KOOm VI 3hSppSl’d, 1%
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. *6 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 and employeea, for in that section it exempt8 to include o?fi.~ers from the provlslona of "Subsection llg of thle Act with reference to 'the llmltatlon of amount of traveling expense~v the 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 AIVD ATTGqNsyS.
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 nedoeasery expenses 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." *7 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 dollarcl per 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,of this 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 %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, aoccuut rpprcwd by the President of such lteiiiwa CCtlMil.' Also, Section 2 (12)f of the General A~Oprletlcn BllL apaclfiosll~-prmdear
"It is expre832y provided tbeg the pxwlaious of SubsectlCit llg ai this Act with mfereuce to ahsll not ~llaltationotaoouut of tzevell.ngoxpenme applyto... ttm wmbew or CamissioRa vho m- ceiws no aslary or par diem, vEen ?xswLl.ng In e out.or th State. . ..*
Thl.scouDoil %s, inccntesplsticu~lev,a Ccausis- afar rtml cow8 vlthln the express exeaptlon quoted. It :s Was opinion or this depmtmoat that the maborn of ,tIao Advlrciry Judlctil Coumil SOP (1) not to exueed flw cents per sm ontitled to xMabursewot ail10 for esch ad.16 ectuslly traveled by pr vote cw~nce in the diachrxvp of their duties a8 such member: t Art. 6523 ccctrols); (2) othermceaaeryexpeuaea soincrPrsd,wl~houtlimltstlon. It !a cur rurttmr op1aloa-fbt awh mwwrs em uot wqulred to prodwe the receLpt8 refereed to La the %der" to the Geaeml 9epsrtmsntel Ap- pxwprlst1oR m11, s1mo Avtto1e ~2328s spec%i3.c8l~y~pm?ldes that swla l xpeuses ahellbepsld "upcaw96riiLed. ltem%sed 8cOOUnt 4tpprcnmd by the Pmsldent aC sue&Ccumit".
Trusting thst the fwegotng sufiioleatly enswra JW rme* we are
ATTC~GlWERALWTEXAS
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