### ORNEY GENERAL OF%-EXAS

Honorable 0. L. Stiefer Chief Deputy Bureau of Labor Statistics Capitol Station Austin, Texas Opinion WW-495
Re: In conducting the affairs of the office of Labor Commissioner, following the death of the Labor Commissioner, is the ChiefDeputy entitled to receive the salaryprovided for the Labor Commissioner, and, under such circumstances, Is the Chief Deputy entitled to reimbursement forhis actual expenses in lieu Dear Mr. Stiefer: of per diem?

Inyour recent request for an opinion from this officeyou have asked two questions. They are substantiallyas follows: When the ChiefDeputy to the Commissioner

of the Bureau of Labor Statistics, following the death of the Labor Commissioner,assumes the duties and powers of the Labor Comtnissioner and continues to perform the duties as Chief Deputy, Is he entitled to receive the salaryprovided for the Labor Commissioner? Under.these same circumstances is the Chief Deputy entitled to reimbursement for his actual expenses in lieu of per diem?
House Bill 109, Acts of the 31st Legislature, Re ular Session, 1909, Chapter 24, page 59, codified as Article 51 4 & provides for the establishmentof the office of Labor Commissioner and for his appointment. In part, that Articles provides:Hon. 0. L. Stiefer,page 2 (W'W-495)

‘A Commissionerof Labor Statistics

. . . shallbe bienlally appointedby the Uovernor for a term of two years. . . .U SenateBill 143, Acts of the 48th Legislature,Regular Session, 1943, Chapter 13, page 14, codifiedas Artiale 6252-1, Vernon's Civil Statutes,provides for the conduct of business by assistants or deputieswhen a physicalvacancy oacurs in a public office. It ceads as follows:

"When there shall oacur a physical vacancy in a public offiae in this State, by reason of death or otherwise, the duties and powers of such office shall immediately devolveupon the firstassistant or chief deputy if there b::one, who shall conduct the affairs of thC officeuntil the vacancy in the term thereof shallbe filled by the appointment or electionand qualificationof a successor to the principal officer; should any such vacancy occur while the Legislature is in session (,where the appointeemust be confirmedby the Senate) such first assistant or chief deputy (as such) shallnot disaharge the duties of the office for a longer period than three (3)weeks' snd inno event after such session of the Legislaturehas adjourned. The provisionshereof shallnot apply to vacancies in themembership of boards or commissions." Provisionhas been made by Article 6252-1 for the Labor Commissionerlsduties to be performedand his powers to be exercised in the event of a physical vacancy occurring in the office. It does not provide a method of filling the vacancy since this is the sole responsibilityof the Governor.

House Bill 133, Acts of the 55th Legislature, Regular Session, 1957, chapter 385, page 870, at page 1013 appropriates themoney on which the Bureau of Labor Statisticsoperates. Item 1 of House Bill 133 provides that the salary of the Labor Commissioner is to be $8,400.00per annum. It also provides by line item for a salary of $5,160 per annum to be paid to the Chief Deputy. The setting of salaries then is not within the discretionof the Labor Commissioner.

It is the opinion of this office that the ChiefHon. 0. L. Stiefer,page 3 (b%495)

Deputy, the position whichyou now occupy, remains in that position while performing the duties of the Labor Commissioner when a vacancy exists in that office and is not entitled to receive the salaryprovided for the Labor Commissioner.

In answer to your second question relative to reimbursementof expenses, SenateBill 35, Acts of the 36th~Legislature,Regular Session, 1919, Chapter 106, page.164, codified as Article 5151,Vernon's Civil Statutes, sets forth the expense allowance for the Commissioner. It provides:

"The Commissionershall be allowed necessary postage, stationery,printing, and other expenses to transact the business of the Bureau, and he and any employee of the Bureau shall be allowedhis actual necessary traveling expenseswhile in the performance of duties required by this chapter,and within the limits of the appropriationsmade therefor." (Emphasis added)
We must refer to the appropriationsmade for the operation of the Bureau of Labor Statistics to determine what limitations, if any, have been placedupon the expensemonies provided for the Bureau.

Section 29 of ArticleVI of House Bill 133 sets forth the travel regulationswhichmust be followed in expendingmonies providea for travel for all state agencies. Paragraphsa and b of Section 29 are pertinent to your question. Those provisionsare:

"a. The amounts appropriated in this Act to each agency of the State for the payment of travel expensesare intended to be and shallbe themaximum amounts to be expendedby employeesand officials of the respective agencies. None of themoneys appropriatedby this Act for travel expensesmay be expendedunless the official travel snd the reimbursement claims therefor are in compliance with the following conditions, limitations,and procedures: "b. These provisions shall apply to all officers,heads of state agencies, and employeeswho are reimbursed for travelingHon. 0. L. Stiefer, Page 4 (WW-495)

expenses frommoney appropriated in this Aat. Heads of State agencies shallmean elected State officials,appointed State officials, appointed State officials whose appointment is subject to Senate confirmation,

. . .' Section 38 of Article VI of House Bill 133 sets out certain exceptions to the per diem allowance. They are ,asfollows:
"a. Members of the Legislature and

other elected state officialsand heads of State agencies shallbe reimbursed for their actualmeals, lodging and incidental expenses when traveling on officialbusiness either in or out of the State." The ChiefDeputy, even though performing the duties of the Labor Commissioner,does not comewithin the definition of "heads of State agencies" sincehe is neither electednor appointed. Therefore, the exceptions to the per diem allowance do not apply to him. It is the opinion of this office that the chief deputy is not entitled to reimbursement for his actual expenses in lieu of per diem.
SUMMARY When the Chief Deputy to the Commissionerof the Bureau of Labor Statistics, following the death of the Labor Comissioner, assumes the duties and powers of the Labor Commissioner as provided in Article 6252-1, Vernon's Civil Statutes,and continues to perform the duties of ChiefDeputy, he isnot entitled to receive the salary provided for the Labor Commissioner. Under these ssme circumstancesthe ChiefDeputy isnot entitled to reimbursement for his actual expenses in lieu of per diem.

Very trulyyours, WILL WILSON Attorney General of Texas

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AssistantHon. 0. L. Stiefer,page 5 (WW-495)

APPROVED:
OPINION COMMITTEE Geo. P. Blackburn, Chairman Ray Loftin Leonard Passmore Mary K. Wall Arthur Sandlin
REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. GEPPERT