Untitled Texas Attorney General Opinion

Hon. Robert S. Calve& Comptroller of Public Accounts Austin, Texas Opinion lo. v-1560 Be: Legality of reimbursing the travel expense of members of the Board of Vocational Nurse J3xaminers at a mileage rate greater than that fixed in the general appropriation Dear Sir: bill. You have requested the opinion of this office on the question of whether the limitations of the general appropriation bill apply to reimbursement for mileage traveled by members of the Board of Vocational Nurse Ex- aminers who use their own automobiles while traveling on official State business. You have aptly described the distinguishing features of this problem by pointing out that the funds against which these expenses are attempted to be drawn are deposited in the State Treasury but that the appropriation authorizing their use for this purpose is not included in the general appropriation bill but is contained in a distinct and separate appropriating act. In Attorney General’s 0 inion V-1255 (1951) it was held that Section 13 of H.B. t 7, Acts 52nd Leg. 1951, ch. ll8, p. 197, the act creating the Board of Voca t ional Nurse Examiners, effected a two-year appropriation, for purposes of administering the act, of all monies paid in- to the State Treasury under the act even though no item- ized appropriation for such purposes was contained in the general appropriation bill. Said Section 13 provides in part : “All monies so paid Into the State Treasury are hereby specifically appropriated to the Com- mission for the purpose of paying the salaries and expenses of all persons employed or appointed as provided herein for the administration of this Act, including equipment and maintenance of any Hon. Robert S. Calvert, page 2 (v-1560) supplies for such offices or quarters as the Commission may occupy, and necessary traveling expenses for the Commission or persons authorized to act for it when per- forming duties hereunder at the request of the Commiss1on.s Your request discloses that several olaims for reimbursement for intrastate travel expenses have been presented to you by members of the Board wherein the claimant seeks reimbursement for use of his own automobile at a rate of lOq! per mile. Article III, Section 2(12)f of the general a propriation bill H.B. 426, Acts 52nd Leg., 195l, ch. f:99, p. 1228, staEes: ~~Unless otherwise specifically pro- vided by the statutes, it is provided that any officer or employee who travels on offi- cial State business and who used his own car while so doing shall be reimbursed for the use of said car on the basis of the total mileage traveled during any calendar month at the following rate: Six Cents (6$) per mile for the first thousand miles traveled and Five Cents (56) per mile for each mile traveled In excess of one thousand miles. . . . II The same section and subsection sets out other limita- tions and requirements relevant to reimbursement for mileage traveled in a private automobile while on State business. We are of the opinion that Article 6823 Ver- non’s Civil Statutes, answers the question of whei?her mileage rates specified in the general appropriation bill are to be applied to mileage reimbursement claims submitted by members of the Board of Vocational Nurse Examiners. That article presently provides: “The traveling and other necessary ex- penses incurred by the various officers, assistants, deputies, clerks, and other em- ployees in the various departments, institu- tions, boards, commissions or other subdivi- sions of the State Government, in the active discharge of their duties shall be such as are specifically fixed and appropriated by Hon. Robert S. Calvert, page 3 (V-1560) the Legislature In the general or supple- mental appropriation bills providing for the expenses of the State Government from year to year. When appropriations for traveling expenses are made any allowances, or payments to officials or employe~es for : the use of privately owned automobiles’ shall be on the basis of actual mileage traveled for each trip or all trips cover- ed by the expense accounts submitted for payment or allowance from such appropria- tions, and such payment or allowance shall be made at a rate set by the Legislature for each mile actually traveled and no additional expense incident to ihe opera- tions of such automobile shall be allowed.” This statute, being general le~gislation, ~evidences a legislative policy that the specific travels expense limitations and requirements contained In each general appropriation bill are intended to have some appllca- tion to travel expense appropriations other than those covered by the general a propriation bill. If’~thls were not true, Article 6 823 would serve no purpose and its enactment would have been a vain thing since, ob- viously, Article III, Section 2(12)f of H.B. 426, J&&J&, applies to funds appropriated in that act. The extent of application of the specific trav- el expense limitations and requirements of Section 2’(12) f, w, to appropriations separately enacted must be determined by a comparison of the Section 2(12)f provi- sions to the provisions of each individual appropriation act. Article 6823 requires that such a comparison be made. If the individual appropriating act contains no specific travel expense provisions, then the provisions of Section 2(12)f are entirely applicable. However,~ if the individ- ual appropriating act evidences a legislative int.ent rela- tive to those particular travel expense reimbursements which is corn letely or in some respects at variance with Section 2(12 Pf, then, to the extent of variance, Section 2(12)f limitations and requirements do not apply because by express reservation the provisions of this part of the general appropriation bill apply only where It is not “oth- erwise specifically provided by the statutes.” Applying these rules to the present facts, it is clear that Section 2(12)f travel expensa reimbursement provisions are applicable to members of the Board of Voca- tional Nurse Examiners. The separate appropriation bill Hon. Robert S. Calvert, page 4 (V-1560) authorizing reimbursement in this case, H.B. 47, suura, does not specifically authorize a lO# per mile reim- bursement rate or any other rate. In fact, it does not specify any limitations or requirements whatsoever for determining and paying the “necessary traveling expenses” therein authorized to be reimbursed. Our study of this question has brought to our attention-~ one prior opinion of this office which should be mentioned. Attorney General’s Opinion O-4928 (1942) expresses the view that Article 6823, as it existed prior to amendment in 1949, did not incorporate by reference the limitatio&‘upon traveling expenses which may be contained in the Departmental Appropria- tion Bjll or any other general appropriation bill into other appropriations wherein such limitations are not expressly contained.” The above opinion request did not involve the same kind of travel expense limitation as the present, nor did it concern the present, amended form of the statutes here dealt with. Consequently, Opinion NO. O-4928 is not m- m to the conclusion herein expressed and need not be overruled. On the other hand, the reasoning employed in that opinion and, particularly, the construction placed on Article 6823, is in our opinion not sound and is ob- viously contrary to what is expressed herein. under the provisions of Article 6823, the mileage reimbursement provisions of the gen- eral appropriation bill, H.B. 426, Acts 52na Leg. 1951, ch. 499, p. 1228 are applicable to claims for reimbursement by members of the Board of Vocational Nurse Examiners because no mileage reimbursement provisions are “other- wise specifically provided” in the approprlat- ing section of the act (H.B. 47, Acts 52nd Leg., 1951, ch. 118, p. 197) creating the Board of - . Hon. Robert S. Calvert, page 5 N-1560) Vocatlonai Nurse Examiners, or in any other statutes. APPROVED: Yours very truly, C. K. Richards PRICE DANIEL Trial BeAppellate Division Attorney General Mary K. Wall Reviewing Assistant Byf++ Charles D. Mathews Phil1 Robinson First Assistant Assistant PR:wb