Honorable Chet Brooks Opinion No. H-1041
Chairman, Senate Human Resources
Committee Re: Employment of the
Senate Chamber handicapped by state
Austin, Texas 78711 agencies.
Dear Senator Brooks:
You have requested our opinion concerning the employment
of handicapped persons by state agencies and the payment of
travel expenses incurred by such employees. Your first ques-
tion originally involved the propriety of a job description
for a particular position; however, the job description was
modified after you submitted your request. In light of that
modification the remaining portion,of your first inquiry in-
volves the general question of restrictions upon employment
of handicapped persons.
Article 4419e(l), V.T.C.S., provides:
Section 1. The policy of the State of
Texas is to encourage and enable persons
who are blind'or otherwise physically
handicapped'to achieve maximum personal
independence, to become gainfully em-
ployed, and to otherwise fully enjoy and
use all public facilities available with-
in the state.
In addition, article 4419e(3), V.T.C.S., provides:
(f) An employer who conducts business in
this state may not discriminate in his em-
ployment practices against a handicapped
person solely on the basis of his handi-
cap if the person's ability to perform the
task required by a job is not impaired by
the handicap and the person is otherwise
qualified for the job.
See also V.T.C.S. arts. 664-5(1)(a), 664-6(l) (a), 678g; 29
--
U.S.C. S 793(a).
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Honorable Chet Brooks - Page 2 (H-1041)
Thus as a matter of statutorily expressed public policy,
state agencies may not refuse to employ a qualified handicapped
person "on the basis of his handicap."
Your second question involves payment to handicapped em-
ployees for travel expenses, You first ask whether a handi-
capped employee may be reimbursed for both the use of a per-
sonally owned vehicle and the expense of retaining a driver
for the vehicle so long as the amount does not exceed the cost
of the use of public conveyances for an equivalent amount of
travel. Section 8 of article 6823a, V.T.C.S., provides:
An employee whose duties customarily re-
quire travel within his designated head-
quarters may be,authorised a local trans-
portation allowance for his travel. Such
allowance, however, may not exceed the
transportation allowance for use of a
privately owned automobile as set by the
Legislature in the General Appropriations
Acts, except that an employee with a physi-
cal handicap which precludes his personal
operation of a privately owned automobile
may, without regard to the standard other-
wise set in the General Appropriations Acts,
be authorized a reasonable transportation
allowance not to exceed the amount to which
such handicapped employee would be entitled
for similar travel occurring outside of his
designated headquarters.
Section 6(a) of this article provides for rules and regula-
tions to be promulgated by the Comptroller. These regula-
tions are contained in the State Employee Travel Allowance
Guide which provides at page 10:
Employees traveling under provisions of
S.B. 881, 64th Leg., [art. 6823a, S 8, as
amended] will be allowed the actual cost
of transportation via bus, taxi or the
mileage allowance of sixteen (16) cents
per mile for an automobile driven by a
volunteer driver.
It is therefore clear that the reimbursement to a handicapped
employee who utilizes a private automobile is limited to six-
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. .
Honorable Chet Brooks - Page 3 (H-1041)
teen cents per mile. We have discovered no authority for re-
imbursement on the basis of the cost of public conveyance where
no public conveyance is in fact utilized.
You also ask whether a state agency may establish a spec-
ial system for reimbursing the transportation expenses of han-
dicapped employees who are unable to drive a personally owned
vehicle in the performance of their duties. Since article
6823a provides for reimbursement for travel expenses under
regulations of the Comptroller, individual state agencies do
not have authority to establish a special system of reimburse-
ment which conflicts with rules and regulations of the Comp-
troller.
Your final question is whether such a special system would
constitute "affirmative action to employ and advance in em-
ployment qualified handicapped individuals" under 29 U.S.C. 9
793(a). While as we noted above individual agencies lack autho-
rity to develop "special systems" in this context, the regu-
lations of the Comptroller constitute a form of a special
system. In our view those regulations as well as section 8
of article 6823a may constitute such "affirmative action."
See 29 U.S.C. 791b, 20 C.F.R. 741.4 (1976).
-
SUMMARY
State agencies may not refuse to employ
a qualified handicapped person on the
basis of his handicap. A handicapped
employee who utilizes a private automo-
bile and driver on state business is
limited to sixteen cents per mile reim-
bursement. State agencies do not presently
have authority to develop a special system
of reimbursement for travel by handicapped
employees; under current law the system
is provided by the Comptroller under article
6823a and the General Appropriations Acts.
truly yours,
Attorney General of Texas
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Honorable Chet Brooks - Page 4 (H-1041)
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH. Chairman
Opinion Committee
jst
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