## THEATTORNEYGENERAL
OF-XAS

WVILL WILSON A-RNEY GENERAL August 29, 1960

Mr. D. C. Greer State Highway Engineer State Highway Building Austin, Texas Opinion No. WW-923
Re: Whether an employee of the Texas Highway Department traveling to Austin to receive a longevity award is entitled to the per diem or actual expenseswhich are provided for in Section 33 of Article V of the General Dear Mr. Greer: AppropriationAct.

Your recent request for an opinion from this office reads, substantially,as follows:

"In response to my request of November 10, 1959,your office Issued opinion number WW-790 which upheld the constitutionalityof the rider in our appropriationbill which authorizedus to give certain of our employees longevity awards and pay for their transportation to Austin to receive such awards.

. . .' "Would you please adviseme whether or not an employee traveling to appear before the Commissionunder the provisions of the subject rider la entitled fin addition to transportation expensgto the per diem or actual expenses which are provided for In Section 33 of Article V of the General AppropriationAct." The "rider"of which you speak In the,GeneralAppropriation Bill (HouseBill 4, Acts of the 56th Legislature, Third Called,

Session, 1959, chapter 23, page 442 at 590) provides as follows:Mr. D. C. Greer, Page 2 (WW-923)

"As compensation in addition to that authorized to be paid above, the Highway Department is authorized to purchase and give to its employeesat periodic intervals, under such rules and regulationsas has been or may be adoptedby the State Highway Commission, service award pIns and certificates for longevity of service and safety award pins and certificatesfor safe operation of state equipment; and the Department is also authorized as further additional compensationto provide, at state expense, for the transportation of employeeswith 25 years ormore of service from their designatedheadquarters to Austin and return at intervals of not less than 5 year5 for the purpose of appearingbefore the State Highway Commission to receive said longevity service awards." (Emphasis added) Article 6823a, Vernon's Civil Statutes, the "Travel RegulationsAct of 1959,"deals with the payment of travel expenses to state employees. This Articlementions in its various sections three types of expenses, i.e. per diem or actual expenses, transportationallowance or transportationreimbursements and travel expenses. Therefore,we believe your question revolves around the interpretationof these expenses as applied to the above quoted rider.

A "perdiem" allowancemeans a flat daily rate payment in lieu of actual expenses Incurred formeals and lodging and as such shallbe construed as additional compensation for official travel purposes only. Section 3a, Article 6823a, Vernon's Civil Statutes.

"Transportation"is the movement of things or person8 from one place to another or implies the taking of persons or property at some point and putting them down at another. Words and Phrases,Vol. 42, page 513. The "reimbursement"or "allowance" allowedby the statutewould be a paying back, ormaking restoration of an equivalent to the expense of thismovement only. "Travelexpenses,"as definedby the Supreme Court of 80 N.E..2d 118 (120),comprehends ther charges reasonably incident thereto while on a Journey, including lodging,meals and kindred expenses incurredduring the trip. We believe It was the Legislative intent for this term to have the above meaning as used. .

Mr. D. C. Greer, Page 3 (WW-923)

in Article 6823a, Vernon's Civil Statutes.

Therefore, applying all these definitions together, we find that "perdiem" and "transportation"expense, allowance or reimbursementare two separateand apart rateswhich are applied for different reaons,lwhile "travel expense" is broad enough to encompassboth terms.

The above quoted rider from the AppropriationBill states that thesepins and certificatesare compensation In addition to that authorized and as further additional compensation to provide, at state expense, for th transportation -10 ees with 25 years ormore service to Austin and FcsFs&r the

The term "transportation"expense Is the only one used in this rider and, in view of the above, we are of the opinion the scope of itsmeaning does not include "per diem" allowance.

The term "transportation"expense, even though we feel it would be unjustified,might be construed to mean 'travel"expense, thereby including the payment of "perdiem" allowance. If this be so, the "perdiem" allowance to be paid, according to the above rider,would be "additionalcompensation." Thus,being subject to two constructions,we believe the following rulewould apply.

In Allen v. Davis, 333 S.W. 2d 441 (k&4),, the court stated:
"Webelieve the law is settled in this

state thatwhere a statute is capable of two

lThe Legislaturebears this out by its treatment of the terms in Article 6823a. Section 3b states:

"The rate of per diem and transportation allowance and method of computing these rates shallbe those set forth In General Approprlation Acts providing for the expenses of the state government from year to year." (Emphasis added) Section 6d, states: "When two ormore employee5 travel In a single private conveyance,only one shall receive a transportationallowance,but this provision shall not preclude each traveler from receiving a per diem allowance." (Emphasis added), -

Mr. D. C. Greer, Page 4 (WW-923)

constructions,one of which would favor an officer contending for compensation from a political subdlvislonof the government above his salary and the other constructionwould not so favor such officer the construction should favor the government." Likewise, the Supreme Court stated in Madden v. Hardy, 92 Tex. 613, 50 S.W. 926 (928):

11

. . .We have under considerationa statute, the constructionofwhich is very difficult. One constructionwould give to the official some compensationfor his services in addition to his salary. The statute admits of another constructionwhich would not have this effect. In such a case the latter shouldbe adopted.

. . ." PorthLs additional reason,we are of the opinion that the authority grantedby the General AppropriationBill to pay the transportationof certainhighway employees to Austin and return does not include the granting of per diem allowance to these individuals. SUMMARY
An employee of the Texas Highway Department traveling to Austin to receive an award for which the transportation is pald out of state expense Is not entitled to the per diem or actual expensesprovided for in Section 33 of ArticleV of the General Appropriation Act. Yours very truiy,
WILL WILSON AttorneyGeneral of Texas

JMF:hb.

Mr. D. C. Greer, Page 5 (WW-923)

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman PaulW. Floyd, Jr. Lawrence Hargrove Raymond V. Loftin William H. Pool, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.