213 

March 20, 1952 

Hon.~ Paul H. Brown 

Fire Insurance Commissioner 

Board of Insurance Commissioners 

815 Brazes 

Austin 1, Texas Opinion NO. V-1422. 

Dear Sir: 

Re: Limitation upon reimbursement for meal and lodging 

expenditures by State Fire 

Insurance Commissioner, or 

by employee of the Fire Insurance Division when 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”oa shall be paid by such insurance oom- 

.paxiyl limited to the $6.00 per day expenses provided in the rider to the appro3 

Nation bill set out In Section 2(12) - 

raveling Expenses-g? 

“2. 1s L 

27 

employee of the Fire Insurance Divislo when so. acting and so 

designated, to be paid his expenses as provided in Article 5.45 or Is he limited under the rider to the appropriation bill to 

$6.00 per day for meals ana ioaging?~~ 

An employee of the Fire Insurance Division 

who was appointed by you under the authority contained 

in Article 5.45, Insurance Code, to make an lnve’stigatlon, incurred meal ana lodging expense in excess of 
Hon. Paul H. Brown, page 2 (V-1422) 

$6.00 per 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, Insurance Code, 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 

suitable person 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 investigated by him, and shall 

receive such compensation for his services 

as the Board may allow. 1 f the lnvestig+ 

i" 

tion of a fire is made at the reauest of an 

;$ 

insurance company, or at the request of a 

.+ 

policyholder sustaining loss, 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 shall be 

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 commenced deposit with the Board an mt 

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 investigation to 

pay to the Board, on behalf of the State, an assessment 

equal to the actual expenses incurred in the requested 

investigation. This assessment becomes state property 

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 statute makes 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 earmarked by general 

statute for a certain use does uot ,make itavailable 

unless,it is also appropriated by~the Legislature for 

that use. Furthermore, even though a general statute 

specifies payment of a certain amount, the amount actually paid is determined by 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~asic question to be determined is whether the general appropriation bill for 

_ the biennium ending August 31, 1953, appropriates to 

,. :Fire Insurance Division personnel acting as fire investigators their actual expenses when 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-of vexpense claimed except meals, and shall file 

such receipts with 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 official whose appointplent is 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 

designated by the Governor to rep.resent 

him officially at governmental meetings or 

235 
i 

Hon. Paul H. Brown, page 4 (V-1422) 

conferences when held out of the State; 

nor to any Assistant Attorney General, 

or representative of the State Health 

Officer, or representative of the Adjutant General, or representative of the 

State Board of Vocational Education, 

or representative of the Department of 

Public Welfare, or representative of the 

State Highway Commission or representative of the Railroad Commission when any 

of these classes of State employees are 

appearing before any Federal Agencies or 

agencies of other States in any other 

State or Washington, D.C." 

The underlined portion of~the above quoted 

subsection answers your first question. The p,rovlso 

that section 12(g) shall not apply to appointed officials subject to confirmation by 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 Insurance Commissioner is not limited by this 

section, a@ that you should receive your actual expenses, which are to be paid out of the fund heretiafter discussed when 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 expenditures for 

meals and lodging the mamum reimbursement to employees would be $6.00 per day. 

The appropriation to the Fire Insurance DiVision provides in part: 

81Provlaea also that such sums as are 

received by the Fire Mvision as provided 

a Art. 1.02 Insurance code, provides in part: 

'1. . . The dudes heretofore and now placed upon and 

the powers and privileges heretofore 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 4898 R.c.S. .&t. 5.45, In- 

.surance Goad shall'be deposited to the 

Departmental Suspense Account in the 

.State Treasury. Expenses of State em& 

ployees incident to,.the investigations 

shall be paid from travel expenses-here- 

<inabove appropriated.and such travel 

~. expense.appropriition shall~be reimbursed 

for,the actual amounts exuended unaex~the 

.bprovisions of Article 4828 R.CiS.~ :fArti- 

.cle 5.45, Insurance.Codd by a transfer 

from the amount on deposit pBthc2ypartmental Suspense Account." . . , 

supra, at p. 1373. 

We have previously heid this provision to be a continuing appropriation during 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 of Article 5.45, sunra. 

These expenses would obviously include the actual 

cost of meals and lodging. 

Thus, In the general approp&ati.on bill, 

there is a~specific provision appropriating funds to 

defray the actual expenses of a fire investigator, 

and a general provision limiting meals and lodging 

expenses of State employees to $6.00 per day. The 

provisions are in conflict whenever~act1-d expenses 

are in excess of $6.00 per day. ~ti.case of 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 compliance with this well 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 issued warrants 

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 examinations wnder the provisions of Artitle 1.16, Insurance Code (tit. 469Oa, V.C.S.), were 
Hon. Paul H. Brown, page 6 (V-1422) 

i’ 

I. 

limited to $4.00 per day for meals and lodging as 

provided in the general appropriation bills. Both 

opinions held that the examiners were entitled to 

their actual expenses. These opinions were based 

on the wording of the.general statute, and the question of an appropriation of the funds for the expenses of the examiners was not discussed. Ho?jever, 

a search of the appropriation bills during the years 

involved reveals that the funds collected were 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 

Senate confirmation, is excepted from the 

provision of the general appropriation 

bill limiting-meal and lodging expenses 

to 56.00 per 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 actual meal 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