TRCEATTOECNEY GENERAL
July 11, 1966
Mr. Jess M. Irwin, Jr. Opinion No. C-720
Executive Director
Texas Department of Mental Re: *Legality of per diem
Health and Mental Retardation expense claimed by cer-
Box s - Capitol Station taln employees of Texas
Austin, Texas Department of Mental
Health and Mental
Retardation under
Dear Mr. Irwin: stated facts.
In a recent letter you have requested an opinion In
regard to the above stated matter. We quote, in part, from
your letter as follows:
"Two employees of this department departed this
headquarters at 5:30 p.m. on May 1 (Sunday), 1966 to
perform official .state business at the Terre11 State
Hospital during the working hours of Monday May 2nd,
Tuesday May 3rd and Wednesday May 4th. On the nights
of May lst, 2nd and 3rd these employees spent the
night in the Lamplighter Motor Inn. . .Dallas, Texas,
. . .approximately 25 miles from the Terre11 State
Hospital and obtained a receipt from that place of
commercial lodging which was submitted to the Comptroller
. . .with their. . .Travel Voucher. . . . No mileage for
travel each day from the hospital to the motor inn was
claimed. The Comptroller. . .has refused to pay this
per diem expense on the grounds 'Claimants left post
of duty each day to travel to Dallas. From time left
Terre11 until returned next day considered personal
business."'
According to the Comptroller's Office the basis for
the rejection is Section 9 of Article 6823a, Vernon's Civil
Statutes, and Attorney General's Opinion O-4923 (1942).
Section 9 of Article 6823a Is quoted as follows:
"Neither a per diem allowance nor partial per diem
allowance as set out in the General Appropriations Acts
shall be allowed for the period of time on those days
when an employee Is:
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Mr. Jess M. Irwin, Jr., page 2 (C-722)
"(1) At his official designated headquarters.
"(2) Absent from post of duty for personal reasons.
“(3) Absent from post of duty for any reason not
connected with duties of the agency by which
the employee Is employed.
"(4) Away from designated headquarters for a period
of less than six consecutive hours."
The above quoted section of Article 6823a must be
construed in conjunction with the last appropriation act, H.B.
No. 12, acts of 59th Legislature, Regular Session, Chapter 720,
page 1679.
Section 15 of H.B. 12 (Travel Regulations) pertains
to per diem allowance and is quoted, in part, as follows:
"a . Rates of allowance. Each employee traveling on
State business inside the boundaries of the State of Texas
,shall be allowed, in lieu of actual expenses incurred for
meals and lodgin a flat per diem rate of not to exceed
twelve dollars ($'12) provided there is attached to his
expense account when submitted a 'Paid' bill or receipt
from a commercial hotel, motel, or other commercial
lodging establishment for his lodging, but provided
further that if such receipt Is not submitted, the flat
per diem rate shall not exceed seven dollars ($7)."
Attorney General's Opinion No. O-4923 (1942) holds
that expenses incurred in the reasonable line of travel are
incurred while traveling on State's business, while expenses
incurred outside the reasonable line of travel are not incurred
while traveling on State's business. Opinion No. O-4923 is
not applicable to the present fact situation.
It is our opinion that the per diem allowance claimed
by the employees in question is a proper and legal claim. The
facts disclose that the employees were absent from their designated
headquarters to perform official duties of the agency by which the
employees were employed. At no time were the employees absent for
personal reasons and at all times the employees were absent from
their designated headquarters for reasons connected with their
official duties. These employees were not absent from their "post
of duty," as you state that they worked at the Terre11 State
Hospital on the 2nd, 3rd and 4th days of May from 8 a.m. to 5 p.m.
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Mr. Jess M. Irwin, Jr., Page 3 (C-722)
SUMMARY
Under the facts submitted, the per diem allowance
claimed by the employees of the Department of Mental
Health and Mental Retardationwas incurred as a result
of State business and Isa proper and legal claim.
Very truly yours,
WAGGONER CARR
Attorney General of Texas
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Assistant Attorney General
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APPROVED:
OPINION COMMI'ITEE
W. V. Geppert, Chairman
Pat Bailey
Malcolm Quick
Paul Phy
Sam Kelley
APPROVED FOR THE ATTO#!NEYGENERAL
BY: T. B. Wright
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