THE ATTORXEY GENERAL
OF TEXAS
September 14, 1987
Mr. James A. Lynaugh Opinion No. JM-785
Interim Director
Texas Department of Corrections Re: Whether employees of the
P. 0. Box 99 Department of Corrections are
Huntsville, Texas 77340 entitled to administrative leave
or per diem and reimbursement
for travel in certain circum-
stances
Dear Mr. Lynaugb:
You ask whether certain employees are entitled to “administrative
leave,” per diem, and reimbursement for travel. Specifically, you ask
whether employees who are subpoenaed to testify in court are entitled
to those benefits.
We will first address your question about “administrative leave.”
Each biennium the appropriations act sets out the types of leave to
which state employees are entitled. Under the appropriations act for
the 1986-87 biennium, state employees sre entitled to paid sick leave
and vacation and to leave with pay under other specified circum-
stances. Acts 1985, 69th Leg., ch. 980, art. V, 58, at V-36. See
also General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch.
78,art V, 58, at V-41 (comparable provisions for the 1988-89
biennium). The appropriations act also provides for “emergency
leave”:
The administrative head of an agency shall
grant an emergency leave to an employee because of
a death in the employee’s family. The death of
the employee’s spouse, or the employee’s or
spouse’s parents, brothers, sisters, grandparents,
grandchildren and children shall constitute
adequate need for emergency leave. The
administrative head of the agency may make a
determination on other reasons for emergency
leaves and shall grant an emergency leave, when in
his determination, the employee shows good cause.
d. at 18(d). We assume that you mean “emergency leave” by the use of
the term “administrative leave.” cf. g. at SSCL, (providing for
leave without pay, subject to certain provisions).
p. 3713
Mr. James A. Lynaugh - Page 2 (m-785)
You state that it is the department’s position that an employee
may be granted paid leave to testify in a court action only if the
appearance is in his official capacity. If an employee is called to
testify in his official capacity--in other words, as a state employee
qua state employee--his appearance is part of his job, and he need not
take leave of any sort. See Attorney General Opinions V-1210 (1951);
O-5803 (1944). Whether asubpoena requiring a state employee to
appear in co”rt in his private capacity would constitute good cause
for’the department to grant emergency leave is a question left to the
discretion of each agency.
You also ask whether an employee subpoenaed to testify in CO”rt
is entitled to a per diem allowance for the court appearances in
question. The appropriations act provides that per diem reimbursement
is for “expenses incurred in official travel.” Acts 1985, 69th Leg.,
ch. 980, art. V, 114, at V-43. Unless the employee in question is
appearing in his capacity as a state employee, he is not entitled to
per diem reimbursement. See also Acts 1985, 69th Leg., ch 980, art.
V, S2Ce) (prohibiting payment of per diem to a estate employee who
receives witness fees for a court appearance in his official
capacity).
Finally, you ask whether sn employee is entitled to reimbursement
for the transportation expenses involved in making the court
appearances. The appropriations act provides for reimbursement for
“costs of transportation on official business.” Acts 1985, 69th Leg.,
ch 980, art. V, 513, at V-41. Again, if an employee is not called to
be a witness in his capacity as a state employee, he is not entitled
to reimbursement for travel expenses.
SUMMARY
A state employee is not entitled to per diem
reimbursement or reimbursement for travel expenses
for a subpoenaed tour t appearance unless the
employee appears in his capacity as a state
employee. Whether a subpoena requiring a state
employee to appear in court in his private
capacity constitutes good cause for the emergency
leave is a question left to the discretion of each
agency.
J M-da
very truly your ,
A
JIM MATTOX
Attorney General of Texas
p. 3714
Mr. James A. Lynaugh - Page 3 (JM-785)
i
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 3715