### 213

March 20, 

### 1952

Hon.~Paul H. Brown Fire Insurance Commissioner Board of Insurance Commissioners 

### 815Brazes Austin 1, Texas Opinion NO. V-1422.

Dear Sir: Re: Limitation upon reimbursement for meal and lodging expendituresby State Fire InsuranceCommissioner, or by employee of the Fire InsuranceDivisionwhen lnvestigating a fire at the request of an interested party.
You have requested the opinion of this office on the following questions:

“1. Is the State Fire Marshal,when

-. he mak@ an investi tion under Article 5.45 LInsurance Cod 2 providing ‘then the expenses of the State Fire Marshal, clerlcal expenses,witnesses and officers fees in and B to such investiga- ‘.ti”oashallbe paid by such insurance oom- .paxiyl limited to the 

### $6.00per day expenses provided in the rider to the appro3 Nation bill set out In Section 2(12) - raveling Expenses-g? “2. 1s L27 employee of the Fire InsuranceDivislo when so. acting and so designated, to be paid his expensesas provided in Article 5.45 or Is he limitedunder the rider to the appropriationbill to 

### $6.00per day for meals ana ioaging?~~
An employee of the Fire InsuranceDivision who was appointedby you under the authority contained inArticle 

### 5.45,InsuranceCode, to make an lnve’stigatlon, incurredmeal ana lodging expense in excess ofHon. Paul H. Brown, page 2 (V-1422)



### $6.00per day. Your problem has arisen because of the refusal of the Comptroller to issue a warrant for a sum in excess of $6.00 per day.

Article 

### 5.45,InsuranceCode, provides:
"If for any reason the State Fire Marshal is unable to make any required investi-

_ gation in person, he may designate the fire marshal of such city or town or some other suitableperson to act for him; and such person so designated shall have the same authority as is herein given the State Fire Marshal.with reference to the particular matter to be investigatedby him, and shall receive such compensation for his services as theBoard may allow. 1f the lnvestig+ i" tion of a fire is made at the reauest of an ;$ insurance company, or at the request of a .+ policyholder sustainingloss, or at the re- ', .;:.i ?' auest of the mayor. town clerk or chief of the fire department of any city, village or town in which the fire occurred. then the expenses of the Fire Marshal. clerical expenses, witnesses and officers fees incident and necessary to such investigation shallbe paid by such insurance company. or such policy holder or such city or town as the case may be, otherwise the expenses of such investigation are to be paid as part of the expenses of the Board. The party or parties, company or companies, requesting such,investigation, shall before~such investigation is commenceddepositwith the Board anmt of money in the judgment of said Board,sufficient to defray the expenses of said Fire Marshal in conducting such investigation."' This statute in effect requires an insurance company.or other party requesting an investigationto pay to the Board, on behalf of the State, an assessment equal to the actual expenses incurred in the requested investigation. This assessmentbecomes stateproperty upon the completion of the investigation and the a proval of the expense account. Att'y Gen. Op.

### v-1336 

# 6. 95U

u Emphasis added throughout.Hon. Paul H. Brown, page 

### 3 (V-1422)

(the Section 12(g) of Article III, House Bill

### 426 general ap ropriation.bill),Acts 52nd Legislature, R.S. 

### 1951,ch. f:



### 99,p. 1228, at p. 

### 1437,provides:
"All employees traveling at the exThe above statutemakes this money available only for the specified purpose of paying the expensesincurred in carrying out the investigation.

However, the fact that an assessment isloade and collected and the fund IS earmarkedby general statute for a certain use does uot ,makeitavailable unless,it is also appropriatedby~the Legislature for that use. Furthermore, even though a general statute specifiespayment of a certain amount, the amount actually paid is determinedby the amount7a;;rp;;;ted by the Legfslature. StatTev. Steela,

den v. Fin Y 

### (1899),

Att'$%en. Op. V-12& 

### :?9%: (1882),and 2

### 51,4;s.w.%8

Therefore the b~asicquestion to be determined is whether the general appropriationbill for

_the biennium endingAugust 

### 31,1953,appropriates to

,. :FireInsurance Division personnel acting as fire investigators their actual expenseswhen making an in- : vestigation at the request of an insurance company or other party.

pense of the State are hereby limited to the amount of Four Dollars ($4)per day for meals and a total of six Dollars 

### ($6). per day for meals and lodging it being ., specifically provided that the employees shall obtain receipts for all Items-ofvexpense claimed except meals, and shall file such receiptswith their duly Itemized and sworn expense accounts;provided. however, that the meals and lodd.nP: limitations imposed bs this subsection (12g only) Shall pot applv to any elected State official por to any appointed State official nor to any appointed State officialwhose appointplentis subject to Senate confirmation, when traveling in or out of the State; nor to employees of the Executive Department, and employees of other State Departments designatedby the Governor to rep.resent him officially at governmentalmeetings or 

### 235i

Hon. PaulH. Brown, page 4 (V-1422)

conferenceswhen held out of the State; nor to any AssistantAttorney General, or representativeof the StateHealth Officer, or representativeof the Adjutant General, or representative of the StateBoard of VocationalEducation, or representativeof the Department of PublicWelfare, or representativeof the StateHighway Commission or representative of the Railroad Commissionwhen any of these classes of State employees are appearingbefore any Federal Agencies or agencies of other States in any other State or Washington, D.C." The underlinedportion of~the above quoted subsectionanswersyour first question. The p,rovlso that section 12(g) shallnot apply to appointedofficials subject to confirmationby the Senate is applicable to you as Fire Insurance Commissioner since your office is of the excepted type 2nd the investigation of fires is one of your duties. You are therefore advised that the traveling expense of the State ' 2 Fire InsuranceCommissioner is not limited by this section,a@ that you should receive your actual expenses,which are to be paid out of the fund heretiafter discussedwhen you are making an investigation pursuant to Art. 

### 5.45, m.' The above exception is not applicable to employees of the Fire Insurance Division, and If this were the only section regulating the expendituresfor meals and lodging the mamum reimbursementto employees would be $6.00 per day.

The appropriation to the Fire InsuranceDiVision provides in part:

81Provlaea

also that such sums as are receivedby the Fire Mvision as provided

a Art. 1.02 Insurancecode, provides in part: '1.

. . The dudes heretofore and now placed upon and the powers and privilegesheretofore and to be exercised by the State Fire, Marshall shall continue in and be had, enjoyed,and exercised by the Fire Insurance Commissioner.14. .



### 217

Eon. Paul H. Brown, page 5 (V-1422)

by Article 4898R.c.S. .&t. 

### 5.45,In- .suranceGoad shall'be deposited to the Departmental SuspenseAccount in the .StateTreasury. Expenses of State em& ployees incident to,.the investigations shall be paid from travel expenses-here- <inaboveappropriated.and such travel

~.expense.appropriitionshall~be reimbursed for,the actual amounts exuendedunaex~the .bprovisionsof Article 4828 R.CiS.~:fArti- .cle

### 5.45,Insurance.Codd by a transfer from the amount on depositpBthc2ypartmental SuspenseAccount."
. . , supra, at p. 1373.
We have previously heid this provision to be a continuing appropriationduring this biennium of-the expense money fees collected, frbm parties re uesting fire investigations. Attly Gen. Op; V-1336,,?1950. This provision appropriates a sum sufficient~ to pay the w expenses incurred~ by employee investigators under the provisions ofArticle 

### 5.45,sunra. These expenseswould obviously include the actual cost of meals and lodging.

Thus, In the generalapprop&ati.onbill, there is a~specific provision appropriating funds to defray the actual expenses of a fire investigator, and a general provision limitingmeals and lodging expenses of State employees to $6.00 per day. The provisions are in conflictwhenever~act1-d expenses are in excess of $6.00 per day. ~ti.caseof conflict, the specific provision controls over the general provision of the same act. Gulf Tnsurance Co. v. James 143 Tex. 424, 185 S.W.2d 966 

### (1945); Att'y Gen. Op. ' V-378 (1947). In compliancewith thiswell established rule you are a.&isea that employees of the~l?lre Tnsurance Division investigating fires at the instance of insurance companies or other parties pursuant to Article 

### 5.45,supra., may properly be issuedwarrants for their actual expenses.

Our holding is in accord with the results reached in Attorney General's Opinions O-4289 (1942) and o-7367 (1946). These opinions involved the question of whether insurance examiners traveling out of State to make examinationswnder the provisions of Artitle 1.16, InsuranceCode (tit. 469Oa, V.C.S.), wereHon. Paul H. Brown, page 

### 6 (V-1422)

i’ I. limited to $4.00per day for meals and lodging as

provided in the general appropriationbills. Both opinions held that the examinerswere entitled to their actual expenses. These opinionswere based on the wording of the.general statute, and the question of an appropriation of the funds for the expenses of the examinerswas not discussed. Ho?jever, a search of the appropriationbills during the years involved reveals that the funds collectedwere appropriated for the actual expenses of the examiners incurred in making the examinations.
SuMMAFtY The State Fire Commissioner,being an appointed State official subject to Senateconfirmation, is excepted from the provision of the general appropriation bill limiting-meal and lodging expenses to 

### 56.00per day (sec.12(g), Art. III,
&t; F6i2$:'aZ2i" 1"$$. R.S. 195l, ch.

- The s ecific appropriation contained In H.B. 

### 42

g, suura, at p. 1313, to cover the actualmeal and lodging expenses of employees investigating fires at the request of a party pursuant to Article 

### 5.45, Insurance Code, is controllinlr over the general limitation containedin tin*proprLation bill limiting State employees to g6.00 per day for meals and lodging.

APPROVED:
E. Jacobson Reviewing Assistant Charles D. Mathews First Assistant EWT:wb Yours very truly
PRICE DANIEL Attorney General

BycqTgb E. Wa Thoae Assistant