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ORNEU ENERAL

July 28, 1958

Honorable Bill Allcorn Commissioner Qeneral Land Office Austin 14, Texas

Dear Mr. Allcorn: Opinion No. WW-478
Re: Questions concerningper diem and travel allowances for employees of Qeneral Land,Offlce - Sectlone 29, 30 and 31 of House Bill No. 133, Acts of the 55th Leglslature, Regular Session, 1957.
We have receivedyour letter of April 29, inwhich you request our opinion on two questions concerning travel expense allowance for employees of the General Land Office, which reads as follows:

"1

. Case Number One. "JohnT. Halsey Is employedby this office as a geophysical Inspectorand his headquarters are in Palaclos,Texas. Mr. Halsey was assigned as a seismic Inspector In the Qulf of Mexloo aboard a boat operatedby the Shell Oil Company and Instructedto report to that company and board the boat In Aransas Pass, Texas. In order to do so,he drovehis car from his headquarters In Palaclos,Texas, to Aransas Pass, leaving the car parked at the docks at Aransas'Passwhile on duty in the Qulf' of Mexico. The boat, at the close of Its sevenday working period, did not return to Aranaas Pass,but Insteadput In at the nearest port which was Freeport, Texas, from which work was to be conductedduring the next work period.
"On February 12, 1958, Mr. Halsey traveled by bus from Freeport to Aransas Pass,- .

Honorable Bill Allcorn, Page 2 (W-478).

picked up his car and droveback to Freeport, again boarding the boat for work In the Gulf of Mexico.
"In submittinghis travel expenses,Mr. Halsey Includedhis bus fare In the amount of $4.50 and cab fare of 50$ from the bus station In Aransas Pass to the docks. The State Comptrollerhas refused to approve this expense account, the $8.00per diem account for February 12, as well as travel expenses for the 1.58

miles involved Inmoving the car from Aransas Pass to the new docking location In Freeport. "While the amount of money here Involved Is comparatively small,your opinion as to whether or not Mr. Halsey shouldbe allowedhis travel and per diem expenses is needed since the procedure followed by Mr. Halsey is quite often necessary for geophysical Inspectors. "2. CaseNumber Two.
"J.M. Morgan is also employedby this office as a geophysical Inspectorand his headquarters are In Bay City, Texas.
"OnMarch 1, 1958, Mr. Morgan was assigned to seismic inspectionwork with the National GeophysicalCompany In San AntonioPay and the port being used by the Companywas Seadrift, Texas. Therewere no accommodations In Seadrift, the nearest accommodationsbeing in Port Lavaca. Mr. Morgan couldhave stayed In Port Lavaca at a cost to the State of $10.52 per day ($8.00per diem allowanceplus mileage) or he oould return to his headquarters daily at a total cost to the State of $9.38 per day~formileage. "Theparticular sectionhere Involved is a rider In Section 31 prescribing In somewhat ambiguous language that when it Is cheaper, a- -

Honorable Bill Allcorn, Page 3 (W-478). ~'

traveling State employeemay'return to his headquartersdally. The rider goes further, however, and provides that expenses on a dally basis shallnot exceed the per diem allowance of $8.00. Under astrict lnterpretatlon of this rider, I.e., a limitation of $8.00, the employee, if'he did not want to losemoney, would have been forced to stay in Port Lavaca at a greater cost to the State. The question Is, then,whether the Leglslature Intended that Section 31 be given this strict Interpretationand thus result In a greater cost to the State.
"Hereagain, your official opinion as to whether or not Mr. Morgan shouldbe allowedhis expenses Is needed because there are numerous,instanceswhere geophysical inspectors cannot find suitable lodging in the port where the shipmay be." The General Land Office assigns seismic Inspectors to private explorationboats manned by private crews and operated under company instructions In areas and upon schedules of the company's option. The inspectorhas no control over the operations, schedules,ports of departure or ports of return,but merely accompanies the boat on its exploration, and inspects and reports on the work done. When a seismic inspector is assigned to a particularboat for a certain period of time,his dutiesmay requir e him tc be in severalports during the course of his Inspection.

Your supplementalrequest shows that Land Office procedure requires the Inspector tc take certain records to the port of departure in order to have them available for his work. However, Land Officeprocedureprohibits the Inspector from taking any records,maps, etc.with him on the boat, except the actual dally reporthe is then completing. (This is to avoid the possibility of losing the informationalready compiled In the event of some disaster). It further seems apparent that It would be impracticalto rent an office or hotel room In which to keep the records andmaps, because the Inspectorusually stays out In the Gulf of Mexico for a period of seven to ten days. You further stated, "These items

. . .- -

HonorableBill Allcorn, Page 4 (W-478).

are left locked In the cars". Your supplementalrequest says, In part: "Theworking program of geophysical Inspectors Is unpredictablebecause of weather and other conditions and the inspector often finds It necessary to make an overnight trip tomove his car,his personalbelongings,maps and other records to,,a different location along the coast.
. . . Sections 29, 29(f), 30(a) and 31(b) of House Bill 133, Acts of the 55th Legislature,Regular Session, 1957, are applicable in determining the propriety of making the travel expense and per diem payments In question.

The expense account of Mr. Halsey shows that on the 12th day of February, 1958, he traveled from Freeport to Aransas Pass to pick up his vehicle (leftthere when he was working out of Aransas Pass). Correspondingtravel allowances are claimed for bus travel to Aransas Pass, taxi fare in Aransas Pass andmileage back to Freeport. The requirements of a seismic inspectorare somewhatpeculiar in that neither the Inspector,nor the Statehas any control over where his work will take him, or, Indeed,where any one boat trip will take him. Since this assigned duty requiredhim to leavehis designatedheadquarters, travel to and be In Aransas Pass to work with the boat while there, and to have certainmaps and recordswith him which couldnot be taken out on the boat; and also to travel to and be In Freeport to work with the boat while there and have themaps and reaordswith him there, as well, we are of the opinion that the travel to Aransas Pass and then to Freeportwas necessarily incident to such assignment, In those Instanceswhere it was necessary to use his automobile In which to safelykeep such records. Whether it was necessary to leave the car at the dock In which to store the records Is a fact question,upon which this office cannotpass. We do not conceive It to be the Intent of the Legislature to penalize a State employee for performinghis assigned duties in the only manner possible or practical under the circumstances. We are of the opinion that the travel allowance shouldbe paid.

From the expense account, It is apparent that on.

Honorable Bill Allcorn, Page 5 (W-478).

certaindays the boat did not go out, eftherbecause of bad weather or because the crewhad a day off. During this time, the Inspector stoodby awaiting another trip. The fact that he was not able to inspectwas entirelybeyond his control or the control of the State. He Was required to be away from his designatedheadquarters on an official assignmentduring this time, and he, therefore, shouldreceive his per diem allowance. Itmay be true that such an employee couldbe required to return to his designatedheadquarters during these Idleperiods, but this 1s an administrativedecision, and not for our considerationhere.

!Theemployee In question arrived In Freeport on February 9, 1958, and was required to standby on the lOth, 11th and 12th of February. He left Freeport for another Inspection on February 13th. In our opinion, the employee would be entitled to per diem for the 12th,of' February, just as he was on the 10th and llth, sincehis assignmentwas incomplete,and he had not officially returned to his designated headquarters.

Insofar as Case Number Two Is concerned, Section 31(g) speclflcallyprovides that:

"Exceptthat when it Is cheaper,a traveling state employeemay return to his headquarters dally or on the weekend rather than stay out at State's expense; cheaper--as It applies to dally round trips shallbe determinedby computing the mileage and per diem on a dallybasis and the entiremileage and per diem on any one dayTall not exceed the per diem allowance of $8.00.

. . . (tiphaslsadded). Under certain circumstances It might be advantageous to the State to have the mployee return to his designated headquarters, rather than seek lodging at or near his post of duty. If the employeereturns to his designatedheadquarters each ni tion 31 $8.00. $"t, he may be compensated,but the provisions of Secg)make It clear that themaximum he may be paid Is The provisions of the AppropriationBill are explicit In this respect. We are of the opinion that, even though particular Instancesmay arisewherein suchprovision forces the employee to remain away from his designatedheadquarters,Honorable Bill Allcorn, Page 6 (W-478).

thereby incurring expensesgreater than if he came home each night, this Is for the determination of the Legislature In promulgating the rules and regulationsunder which State employeesare reimbursed their travel expenses,and we are unable to write exceptions into the AppropriationBill. The Section towhich you refermust be strictlyaonstrued,and the result Is as you point out in your request.
SUMMARY The travel allowancesand per diem claimed by a selsmlc Inspector shouldbe paid when the travelwas necessary to the performance of his assignment, even though it may have been occasionedby circumstancesbeyond his control or control of the State; when a State employee returns to his designatedheadquarters daily or on the week end, rather than stay out at State's expense, the entiremileage and per diem on any one day shallnot exceed the per diem allowance of $8.00.
Yours very truly,
WILL WILSON Attorney General of Texas

TIM:jl
APPROVED:
OPINION COMMITTEE By&&^""3~& Tom I. McFarllng Assistant

L. P. Lollar, Chairman Wayland C. Rivers, Jr.
Jot Hodges, Jr. Riley Eugene Fletcher
J. W. Wheeler REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert