The Honorable Dr. H. CL Sibley Opinion No. H- 58
Executive Director
Texas Animal Health Commission Re: Entitlement of Commissioner
1020 Sam Houston Building of Texas Animal Health
Austin, Texas 70701 Commission to recover per
diem and expenses
Dear Dr. Sibley:
Your letter requesting our opinion stated that a recently appointed
Commissioner submitted an expense account for his initial months’ service
which creates questions. The expense account which you have submitted,
as well as correspondence which we have received from the Commissioner
involved, indicate that he found it necessary to travel to Austin on several
occasions to get acquainted with office personnel and the status of various
programs of the Commission, to determine what avenues were open to the
Commission in the event the United States Department of Agriculture carried
out a threat to refuse to recertify Texas as a “modified-certified free State”
unless Texas took legislative action to upgrade its brucellosis program; to
travel to Washington, D. C. for talks with personnel of the United States
Department of Agriculture as well as with members of Congress to determine
if Texas would have Federal assistance cut off; and other similar trips. For
these trips the Commissioner has submitted a travel voucher on the form
prescribed by the Comptroller of Public Accounts itemizing his mileage,
his air transportation fees to and from Washington (which are supported by
an airline receipt) and his meals and lodging.
In your letter you point out that there were no Commission meetings
during the two months involved and that the minutes of the Commission do
not reveal any direction by the Commission to this Commissioner to perform
any of the travel and services for which reimbureement is claimed.
You also state that the Commissioner wants to know whether he is entitled
to the statutor,y $20.00 per day payment for each day on which he performs
some function attributable to Commission activities “irrespective of whether
such services were undertaken at the direction of the Commission. ”
p. 246
The Honorable Dr. H. Q. Sibley, page 2 (H-58)
Article 7009, Vernon’s Texas Civil Statutes, covers the creation and the
composition of the Texas Animal Health Commission which, prior to 1959,
was the Livestock Sanitary Commission of Texas. As amended in 1965
(Acts 1965, 59th Leg., p. 217, Ch. 89) the statute calls for the appointment
of six citizens as Commissioners, one of whom is to be designated as Chairman
by the Governor. “Insofar as is practicable, the Commissioners appointed
hereunder shall be appointed so as to give proportionate representation from
the west, from the south, from the north, and from the eastern portions of
Texas . . . ”
Article 7009 concludes by stating: “Each Commissioner is entitled to
receive $20 per diem plus the actual and necessary expenses incurred while
in the performance of his official duties. ”
The duties of the Texas Animal Health Commission are broad and
important. Generally they have to do with regulating the movement of
livestock and the requirement of tests, immunization or dipping necessary
as a protection against the dissemination of contagious, infectious or com-
municable livestock diseases (Article 1505a, 5 2, Vernon’s Texas Penal Code).
They are spelled out in detail in Chapter 14 of the Penal Code of the State of
Texas, Articles 1505a through 1525g.
Senate Bill No. 1 of the 3rd Called Session of the 62nd Legislature, the
Appropriation Bill for the year ending August 31, 1973, appropriates to the
Animal Health Commission $3, 000 for the per diem of Board members. It
also includes in Item 8, Consummable Supplies and Materials, etc., an
appropriation for travel.
Reimbursement of travel expenses is governed generally by Article 6823a
Vernon’s Texas Civil Statutes, the Travel Regulations Act of 1959. It provides
in $ 6 that the Comptroller of Public Accounts is to promulgate rules and
regulations to facili.tate the execution of the travel regulations and, with the
concurrence of the State Auditor to prescribe the form on which travel expensas
are to be submitted. “The Comptroller shall approve claims for travel expense
and issue warrants on basis of approved claims. ‘I
The rules and regulations issued by the Comptroller of Public Accounts
do not provide for the determination of a contested or questioned claim. The
form of the voucher which he has prepared does call for approval of the
Agency.
p. 247
The Honorable Dr. H. Q. Sibley, page 3(H-58)
In Att0rne.y General Opinion V-145 (1947) this office had for consideration
the authority of the then Livestock Sanitary Commission (now the Texas Animal
Health Commission) to approve claims incurred in the enforcement of its
statutory authority. The conclusion of the Opinion was:
“The chairman of the Livestock Sanitary Commission
has full authority to approve any and all claims incurred
by the Livestock Sanitary Commission in the enforcement
of the provisions of House Bill 19, Chapter 3, Acts of the
Regular Session of the 50th Legislature. I’
The statute referred to had to do with the establishment of quarantines
to prevent the outbreak of Hoof and Mouth disease.
It appears that the only limitation imposed upon a Commissioner as to his
expenses for which he is entitled to reimbursement is that they be “actual and
necessary” and that they be’incurred while in the performance of his official
duties. ‘I Surely the official duties of a Commissioner must include ~more than
merely attending meetings of the entire Commission and it is our opinion
that each Commissioner of a department headed by a Commission has con-
siderable discretion in determining what his activities are to be and what
expenses he incurs. His discretion, however, is not unlimited.
Whether or not the services are “in the performance of his official
duties” is a determination to be made primarily by the Commissioner himself
and certified to in his travel voucher; secondly by the Commission Chairman
in approving or disapproving the voucher for payment; and thirdly, by the
Comptroller of Public Accounts.
SUMMARY
Entitlement to reimbursement of travel expense and
per diem of a member of the Texas Animal Health Commission
is not dependent upon whether it was incurred in attending
Commission meetings or whether it had been expressly
directed by the Commission. A Commissioner has a great
deal of discretion in determining whether or not his actions
are “in the performance of his official duties, ” However,
because funds appropriated for such expenses are limited,
the discretion is not unlimited.
p. 248
The Honorable Dr. H. Q. Sibley, page 4 (H-58)
Very truly yours,
Attorney General of Texas
AFPRqVED:
?i&sd&
DAVID M. KENDALL, Chairman
Opinion Committee
p. 249