## GENERAL TEIEATTOWNEY

OFTEXAS

i.USnN Il. TEXAS

March

### 13,1948

Hon. Beauford H. Jester, Governor of Texas, Opinion No. V-520 Capitol Building, Re: Austin, Texas Liability of the State for traveling expenses Attention: Mr. Ransom incurred by anagent of the State commissioned, by the Governor for demanding.and receiving from authorities of another state a fugitive from justice and Dear Governor: returning himto Texas.

Reference IS madeto a request for an opinion, dated Februarv 19, signed by Mr. L, D. Ransom, one of your Secretaries, which reads:

"The Governor's Office seeks an oplnion on the following: "Deputy Sheriff from Austin, Travis County, Texas, e o ewent after and returned the party by the nameof #alter Lee Lyons from Los Angeles, California. They are nowrendering an expense account in the amount of 

### 965.30

to be paid from the Governor's funds covering the return of fugitives. Is approval necessary from the Governor's Office for this expense account &- m this trip is made? 'Will appreciate your giving the undersigned an opinion on the above."

Mr. Ransom has verbally advised us that a requisition was issued byyou to the Governor of the State of California demanding the apprehension of oneWalter Lee Lyons, a fugitive from Justice from this State, whowas then in California, andto deliver himto the Deputy Sheriff of Travis County, whomyou commissioned as agent ofHon. Beauford H. Jester - Page 2 

### (V-520)

this State to receive the fugitive, return, anddeliver himto the Sheriff of Travis County. Your requisition was honored by the Governor of the asylum state and the fugitive wasdelivered to the agent, whofulfilled his mission by delivering the fugitive into the custody of the Sheriff of Travis County. It is also our fnformation that the commission waswritten on an old blank formwhich was printed andused during the admfnistration of one of your predecessors in office, and onwhich there was printed at the bottom thereof these word‘s:

"No expenses whatsoever will be allowed or paid by the State of Texas unless specially stipulated and embraced in the above appointment **I Since the foregoing quotation was embraced in the agent’s commission, wemustdetermine whether you maynowlegally approve and certify to the Comptroller for paymentthe account of the agent for the actual and necessary expenses incurred by himIn performance of his duties, Webelieve our answer is controlled by Article 

### 1005and Section 1 of Article 1006, V. C. C. P,, andItem 16of the current appropriations madeto the Executive Department0 Article 1005 andSection 1 of Article 1006 read, respectively:

Article 1005$

‘Whenthe Governor deems it proper to demanda person whohas committed an offense in this State and has fled to another State or territory, he maycommission any suitable person to take such requisition. Theaccused, if brought back to the State, shall be delivered upto the sheriff of the county in which it is alleged he has committed the offense.” Article 10060

*‘Section 1. Theofficer or person so commissioned shall receive as comnensation the actual andnecessarv traveline exuensea upon ( recuisition of the Governor to be allowed by such Governor andto be paid out of the State Treasury upon a certificate of the Governor reciting the services rendered andthe allowance therefor .,‘I (Emphasis added)Hon..Beauford H. Jester - Page 

### 3 (V-520)

Item 16 of the Appropriations madeto the Executive Department is anappropriation of $25,000 for each year of the current biennium for "Returning V'ugitives from Justice,11

Article 1006, V. C. C. P,3before it was amended in 1935 (Acts 44th Leg,, ch. 

### 162,p0412) read:

"The officer or person so commissioned h 11 ecefv sa the Governor shall allow for such service to be paid out of the State treasury upon' a certificate of the Governor reciting the services rendered," (Emphasis added) The amount to be paid to anagent of the State, commissioned by the Governor under the provisions of Article 1005, V. C. C, P,, was byArticle 1006 left to the discretion of the Governor, Brightman, Sheriff, v. Sheppard, Comptroller (1933), 122Tex, 318, 59S. W. 2d 112. Article 1006, prior to its amendmentin 19351 did not specifically provide, as it does now, that the officer or nerson so cogmissioned shall receive as comoensation his actual andnecessary traveling exnenses to be alioved by the Governor and to be paid out of the Ssate Treasury npon a certificate of the Governor reciting the services rendered andthe allowance therefor.

Avery material change was madein Article 1006 by the Amendmentof 1935* Prior thereto, it madeno mention whatever of traveilng expenses of the agent, nor did it fix any rule for the guidance of the Governor in determining the amount of compensation he could allow for all of the agent$s services, Theamount of compensation was left entirely to his discretion, Whatever amounthe allowed, whether adequate or inadequate, or none at all, was final. The amendedstatute is plain, definite andunambiguous. It clearly provides that anagent of the State commissionedby the Governor, as was the officer in this instance, shall receive from the State of Texas as compensation for his services his "actual andnecessary traveling expenses." Theamountof such expenses maybe definitely determined, for the statute contemplates that the expense account of the agent will be itemized whenpresented to the Governor for approval and certification to the Comptroller for payment, TheGovernor mayrequire such verification of such anaccount as he deems proper andmayrefuse any item thereof which he thinks is not a necessary expense.Hon. Beauford H. Jester - Page 4 (V-5&!

It is our opinion that the Legislature has made the paymentof such expenses, upon approval of the Governor as to the correctness thereof, an obligation of the State of Texas andhas madean appropriation to discharge that obligation.

Since the payment of the actual andnecessary traveling expenses of anagent of the State is an obligation of the State, it is our opinion the Legislature intended that all such obligations should be paid without exception by the State, It is our further opinion the only discretion which the Governor has whenan account for such expenses is presented to himfor approval is to determine the correctness thereof, and, whenanaccount is approved, it then becomes his duty to certify the same to the Comptroller for payment. We, therefore, conclude that your question should be answered in the negative. SUMMAFiY Section 1 of Article 1006, V. C. C. PO, makesthe payment of all actual andnecessary traveling expenses incurred by anagent of the State, commissioned by the Governor in accordance with the provisions of Article 1005, v. c. c. P09an obi:gation of the State ofTexas, In order for an agent, commissioned bythe Governor in accordance with the provisions of Article 1005, V. C. CoP,1to be paid his actual andnecessary traveling expenses, it is not necessary that a stfpuiatfon providing for such paymentbe inserted in the commission. Whena commission issued by the Governor to anagent) under authority of Article 1005,V.c,C.P., contains no specific stfpulatioh that the actual andnecessary traveling expenses of the agentwill be allowed, but does contain a provision to the effect such expenses will not be allowed unless specifically stipulated therein, such a provision is contrary to the plain provisions of Article 1006, v. CoCoP,, and is whclly ineffective toHon. Beauford 8, Jester - Page~5 (V-s2izoj

defeat the right of the agent to collect

. such expenses or to prevent the Governor from approving his account for payment.

Yours very truly, ATTORNEY

GENERAL

OFTEXAS

BWB:wb Bytiti Bruce W. B Assistant

APPROVED:

IRSTASSISTANT

- ATTORNEY

GEXERAL