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 

Chief Deputy entitled to 

receive the salary provided for the Labor Commissioner, and, under 

such circumstances, Is 

the Chief Deputy entitled 

to reimbursement for his 

actual expenses in lieu 

Dear Mr. Stiefer: of per diem? 

In your recent request for an opinion from this office you have asked two questions. They are substantially as 

follows: 

When the Chief Deputy 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 salary provided 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 establishment of the office of Labor Commissioner and for his appointment. In part, that Articles provides: 
Hon. 0. L. Stiefer, page 2 (W'W-495) 

‘A Commissioner of Labor 

Statistics . . . shall be bienlally 

appointed by the Uovernor for a term 

of two years. . . .U 

Senate Bill 143, Acts of the 48th Legislature, Regular 

Session, 1943, Chapter 13, page 14, codified as Artiale 6252-1, 

Vernon's Civil Statutes, provides for the conduct of business 

by assistants or deputies when a physical vacancy 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 

devolve upon the first assistant or chief 

deputy if there b:: one, who shall conduct 

the affairs of thC office until the vacancy 

in the term thereof shall be filled by the 

appointment or election and qualification of 

a successor to the principal officer; should 

any such vacancy occur while the Legislature 

is in session (,where the appointee must be 

confirmed by the Senate) such first assistant 

or chief deputy (as such) shall not disaharge 

the duties of the office for a longer period 

than three (3) weeks' snd in no event after 

such session of the Legislature has adjourned. 

The provisions hereof shall not apply to vacancies in the membership of boards or commissions." 

Provision has been made by Article 6252-1 for the 

Labor Commissionerls duties to be performed and 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 responsibility of the Governor. 

House Bill 133, Acts of the 55th Legislature, Regular 

Session, 1957, chapter 385, page 870, at page 1013 appropriates 

the money on which the Bureau of Labor Statistics operates. 

Item 1 of House Bill 133 provides that the salary of the Labor 

Commissioner is to be $8,400.00 per 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 discretion of the Labor Commissioner. 

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

Deputy, the position which you 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 salary provided for the Labor Commissioner. 

In answer to your second question relative to reimbursement of expenses, Senate Bill 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 Commissioner shall 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 allowed his 

actual necessary traveling expenses while 

in the performance of duties required by 

this chapter, and within the limits of the 

appropriations made therefor." (Emphasis 

added) 

We must refer to the appropriations made for the 

operation of the Bureau of Labor Statistics to determine what 

limitations, if any, have been placed upon the expense monies 

provided for the Bureau. 

Section 29 of Article VI of House Bill 133 sets 

forth the travel regulations which must be followed in expending monies providea for travel for all state agencies. 

Paragraphs a and b of Section 29 are pertinent to your question. Those provisions are: 

"a. The amounts appropriated in 

this Act to each agency of the State for 

the payment of travel expenses are intended 

to be and shall be the maximum amounts to 

be expended by employees and officials of the 

respective agencies. None of the moneys appropriated by this Act for travel expenses may 

be expended unless 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 

employees who are reimbursed for traveling 
Hon. 0. L. Stiefer, Page 4 (WW-495) 

expenses from money appropriated in this 

Aat. Heads of State agencies shall mean 

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 ,as follows: 

"a. Members of the Legislature and 

other elected state officials and heads 

of State agencies shall be reimbursed for 

their actual meals, lodging and incidental 

expenses when traveling on official business 

either in or out of the State." 

The Chief Deputy, even though performing the duties 

of the Labor Commissioner, does not come within the definition 

of "heads of State agencies" since he is neither elected nor 

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 

Commissioner of 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 

Chief Deputy, he is not entitled 

to receive the salary provided 

for the Labor Commissioner. Under these ssme circumstances the 

Chief Deputy is not entitled to 

reimbursement for his actual expenses in lieu of per diem. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

BF:bb 

TZ2G?ZZoW

Assistant 
Hon. 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