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 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 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, to become gainfully employed, and to otherwise fully enjoy and 

use all public facilities available within 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 employment practices against a handicapped 

person solely on the basis of his handicap 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 employees for travel expenses, You first ask whether a handicapped employee may be reimbursed for both the use of a personally 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 require travel within his designated headquarters may be,authorised a local transportation 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 physical handicap which precludes his personal 

operation of a privately 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 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 regulations to be promulgated by the Comptroller. These regulations 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 sixp. 4286 
. . 

Honorable Chet Brooks - Page 3 (H-1041) 

teen cents per mile. We have discovered no authority for reimbursement 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 special system for reimbursing the transportation expenses of handicapped 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 reimbursement which conflicts with rules and regulations of the Comptroller. 

Your final question is whether such a special system would 

constitute "affirmative action to employ and advance in employment qualified handicapped individuals" under 29 U.S.C. 9 

793(a). While as we noted above individual agencies lack authority to develop "special systems" in this context, the regulations 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 automobile and driver on state business is 

limited to sixteen cents per mile reimbursement. 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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