Honorable Chet Brooks Opinion No. H-1041

Chairman, Senate Human Resources Committee Re: Employment of the Senate Chamber Austin, Texas 78711 handicapped by state 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 question originally involved thepropriety of a jobdescription for aparticular position; however, the jobdescription was modified after you submitted your request. In light of that modification the remaining portion,of your first inquiry involves 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, tobecome gainfully employed, and tootherwise fully enjoy and use all public facilities available within the state.
Inaddition, article 4419e(3), V.T.C.S., provides:

(f) An employer who conducts business in this statemay not discriminate inhis employment practices against a handicapped person solely on thebasis of his handicap if theperson's ability toperform the task required by a job isnot impaired by the handicap and theperson isotherwise qualified for the job.
See alsoV.T.C.S. arts. 664-5(1)(a), 664-6(l)(a),678g; 29 -- U.S.C. S 793(a).

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Thus as amatter of statutorily expressed public policy, state agencies may not refuse toemploy aqualified handicapped person "on thebasis of his handicap."
Your second question involves payment tohandicapped employees for travel expenses, You first askwhether ahandicapped employee may be reimbursed forboth the use of apersonally owned vehicle and the expense of retaining adriver for thevehicle so long as the amount does not exceed the cost of the use ofpublic conveyances foran equivalent amount of travel. Section 8of article 6823a,V.T.C.S., provides:

An employee whose duties customarily require travel within his designated headquarters may be,authorised a local transportation allowance forhis travel. Such allowance, however, may not exceed the transportation allowance for use of a privately owned automobile as setby the Legislature in the General Appropriations Acts, except that an employee with aphysical handicap which precludes hispersonal operation of aprivately owned automobile may, without regard to the standard otherwise set in the General Appropriations Acts, be authorized a reasonable transportation allowance not to exceed the amount towhich suchhandicapped employee would be entitled for similar travel occurring outside of his designated headquarters. Section 6(a) of this article provides for rules and regulations tobepromulgated by the Comptroller. These regulations are contained in the State Employee Travel Allowance Guide which provides atpage 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 permile foran automobile driven by a volunteer driver.

It is therefore clear that the reimbursement to ahandicapped employee who utilizes aprivate automobile is limited to sixp. 4286. .

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teen cents permile. We have discovered no authority for reimbursement on thebasis of the cost of public conveyance where no public conveyance is in fact utilized.

You also askwhether a state agency may establish a special system for reimbursing the transportation expenses of handicapped employees who are unable todrive apersonally 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 reimbursement which conflicts with rules and regulations of the Comptroller.
Your final question iswhether such a special system would constitute "affirmative action to employ and advance in employment qualified handicapped individuals" under 29U.S.C. 9 793(a). While aswe noted above individual agencies lack authority todevelop "special systems" in this context, the regulations of the Comptroller constitute a form of a special system. In our view those regulations aswell as section 8 of article 6823amay constitute such "affirmative action." See 29U.S.C. 791b, 20C.F.R. 741.4 (1976). - SUMMARY

State agencies may not refuse to employ a qualified handicapped person on the basis of his handicap. Ahandicapped employee who utilizes aprivate automobile and driver on state business is limited to sixteen cents permile reimbursement. State agencies donot presently have authority todevelop a special system of reimbursement for travel by handicapped employees; under current law the system isprovided by the Comptroller under article 6823a and theGeneral Appropriations Acts. truly yours,

Attorney General of Texas

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APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH. Chairman Opinion Committee jst

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