Case Information

*1 oplnlon Ho. 01157l Re: Traveling expense8 of (a) Hon. Ceo. Ii. shf3ppard Co;;~~~yr oi Public judges and dlr-

Austin, Texas trict attorneyr, (b) or

state employee8 protided for in the departmental ap- pro rlatlon of the Forty- 81 x! h Legidature.

Dear Sir:

We have your letter of October 9, 1939, wherdin you ask several questlons, which we will quote and disCus in their order.

Your flrgt question is as idliOW8: "lio&e Elll 257, the General 4ppropriatlon Bill for the J'udlclary, passed by the Forty- sixth Legislature, carries the follwd&ng rid&r:

@iill2es8 otherwise rpeclflcaJ.ly provided by the 8tatIlte8, it is provided that any officer or employee who travolr cial State business and who use8 his CM ofil- car while 80 doing shall bo rebbtl+8ed for the u8e of 8ald car on barir of the during any calen- total mileage traveled dar month at the lollowIng rater Five Cent8 (9) a mlle ror the first thou8and miles traveled, four cents <k#) a mlle for the second thousand mlle8 traveled, tku@ee cents (3) a mile for the third thousand miles traveled and two cents (24) a mL1e for each ndle traveled in excess of three thousand alles.'

"Doe8 this rider offset or limit the et penaes of District Sudges and DistPict AttOFney8 provided f’or in Article 6820, R.C.S.?U

Artlole of the Revised Civil Statutea, to which you refer, reads as fO~oW81

"All di8tri.C.t judges and dirtrict attor- neys when engaged In the discharge of their *2 KOIl. George H. Sheppard, Page 2 duties in any county In this State

other than the county of their residence, shall be allwed their actual and necessary expense8 while actually engaged in the discharge of such duties, not to exceed four dollars per day for hotel bills, and not to exceed iour cents a alla when traveling by railroad, and not to ex- ceed twenty cents a mile when traveling by pri- vate conveyance, In going to and returning f?om the place where such duties are discharged, traveling by the nearest practical route. Such offlclers shall also receive the actual end necessary postage, telegraph and telephone ex- penses incurred by then in the actual discharge of their duties. Such expenses shall te paid by the State upon the sworn and Itemized ac- count of each district judge or attorney entitl- ed thereto, showing such expenses. In districts containing more than one county, such expenses shall never exceed ln any one year $19C,CC for each county In the district; provided that no district judge or attorney shall recelre mre than 4690.00 in any one year under the ::rovislons of this article. The account for said services shall be recorded in the official minutes of the court of the comty In vhlch such judge or attorney resides, respectively.”

You are advised that It Is our opinion that this article is an Illustration of an instance wherein it Is “otheruise specifically provided by the statutes”, and there- fore, that the riCer which you quote, by Its owr terms, do88 not relate to thz expenses of district judges and district attorneys provided for In Article Revised Civil Statutes, 1925.

Your second question is as foU.oVsr II I should also like you to advise whethe; i &ildr rl<er under the Departmental Appropriation Bill, S.B. 427, aegular %esslon of the Forty-six&h Legislature, limits a depart- ncrt fro3 paring a lesser amount than 5# per mile for the first thousand miles during any cal- endar month If the employee actually expends 5e for such travel. that the department pay th= employee ;i full 5# a

In other words, is it mandatory mile for the first thousand miles traveled if the employee has actually expended that much money?” *3 Hon. Gee. H. Sheppard, Page 3 portion of the rider appended to

The ap licable Senate Bill No. 2 1: to which you refer, Is as fOuW8:

Wnless otherwise speclflcally provldsd by statutes, It Is provided that any offl- car or employee who travel8 state buSines8 and who uses his ~.+n car while so do- ing, shat be reimbursed for the use of said car on the basis of the total ailegge traveled during any calendar month at the fol&Mng rates; five cents a mile for the first thousand miles traveled, four cents a mile for the second thou- sand mlles traveled, and three cents a mile for the third thousand miles traveled, and two cents a mile for each mile traveled in excess of ,three thousand miles. . . ”

Attention Is directed to the fgct that this rider uses the word ~lshall”. “Shall’!, when found In a legislative enactment relating to the duties of ;lubllc officers or em- ployees, Is ordlnarlly regarded as having been used by the Legislature In the mandatory sense, unless the context com- pels or suggests a contrary construction. We find nothing to suggest that the word rrshall~‘, in this rider, was not used by the Legislature ln the mandatory sense, and we, therefore, answer your second question In the afflrzative.

Your third question Is as follows: “Does the General Statute, Article 6823 supersede and override the i4Llmltatlon of I& eage RldeP in the Departmental Appropriation BillTn

Article 6823, Xevlsed Civil Statutes, 1925,.as amended by the Acts of 1931, sorty-second Legislature, page Chapter 218, Be&ion 1, reads as followsr

“The traveling and other necessary expenses incurred by the various officers, assistants, de- puties, clerks and other employee8 in the various departments institutions boards, cozrmlssions, or other sugdlvisions of the State Government, In the active discharge of their duties shall be such as are specifically Ibed and appropriated by the Legislature In the general appropriation bills pro- viding for the expense8 of the State Government. from year to year. when appropriations for travel- lng expenses are made any ellowaimes or payments to officials or employee8 for the use of privately *4 Hon. Ceo. H. Sheppard, Page 4

owned automoblles shall be on a basis of a& tual mileage traveled for each trip or all trips covered by the expense accounts submit- ted for payment or allovance rrom such appro- prlatioas,

aad such payment or allowance shall be made at a rate not to exceed five (9) cents for each mile’actually travrled, and no~addltlonal expense incident to the op- eration of such automobile shall be allowed.”

There Is no point of conflict between Article as ameaded, and the %lmltation of Kileage Ridern in the Departmental Appropriation Bill and, you are, therefore, ad- i vised that In our opinion Artlc e as amended does not

supersede or override the ‘(Limitation of Mileage Rider” in the Dfpartmentirl Appropriation B5.U. passed by the Forty-sixth Legislature.

Yours very truly ATTORNZY GWEZAL OF THSi.5 By /s/ Richard bi. Fairchild R!+iFaFGtvb Richard W. Falrchlld, Assistant APPROVE 0cT 23, 1939

/a/ Gerald C. Mann

ATTORNSY GENERAL ‘W TFXAS

APPROVH): OPINION COMMITTEE

BY BW-B, ChZibllUUl