## THEA~ITORNEYGENEEAL

OF'1C'EXAS

June 2, 1961

Dr. J.W. Edgar OpinionNo. WW-1072 Commissioner of Education Texas Education Agency Re: Computation of expense Austin, Texas accountswhere an employee returns to his designated headquarters at the end~of the working day before completinghis assignmentand then returns to his temporary Dear Mr. Edgar: post the followingmorning.

Your letter has been received requesting an opinion of this office concerningthe computationof expense accountswhere an employee travels to his temporarypost and returns to designatedheadquartersthe next day but also makes an unauthoriaedround trip to designatedheadquarters at night.

In determiningthe intent of the Legislaturewith regard to travel expense and per diem allowance for State employees,we must look to thewording of Acts 56th Leg. 3rd C.S. 1959, Ch. 23, p. 442, hereinafterreferred to as the AppropriationAct.

Section 32, Subsection "a" reads in part as follows:

"a. The rate of such reimbursement shall be eight (8)cents permile for the employee'spersonally owned conveyance. None of themoneys appropriated for travel expense formileage within the State of Texas for use of personally owned automobiles shall be expendedun- ;;ss$e shorteitroute between points

. . . . Section 33, Subsections 'larr, "c", and 'Id"

read in part as follows:‘C

.

Dr. J.W. Edgar, page 2 

## (WW-1072)

"a. A per diem allowance for inState travel shallmean a flat daily rate of Nine Dollars 

## ($9) in lieu of actual expenses incurred for meals and lodgings. The per diem allowance shall commence at the time the employee leaves his designatedheadquarters and
ceasewhen the employeereturns to his headquarters.

1'.@

.

“C. An employeewhose duties require travel for periodswhich do not require him to sleep away from his designated headquartera shall receive a partial per diem allowance formeals rather than a per diem allowance. Such partial per diem allowance shall be determinedby the head of the agency and shall be based upon a reasonable estimate of the actual cost of the meals involved. In computing the partial per diem allowance, the travel period shall commence at the time the employeedeparts from his designatedheadquarters. In no eventwill the partial

7er diem allowance exceed Four Dollars 

## $4) per day.

“4. 0.e

"When it is cheaper, a traveling State employeernx return to his headquarters daily or on theweekend rather than stay out at State's expense and by so doing, the expenses involved shall be.considered
as State business: cheaper--as it applies to daily round trips shall be determined by computing themileage and per diem on a daily basis and the entiremileage and per diem on any one day shallnot exceed the per diem allowance of Nine Dollars 

## ($9)

l It iswithin the province of such agency head to require the employeewho is away on official State's business to report back to his designatedheadquartersdaily.

Dr. J.W. Edgar, page 3 (WW-1072)

or on weekends if he deems it necessary to expedite the completion of the purpose forwhich the expenses are incurred. The employeewill clearly show on his expense account the hour and the date he returned to his headquarters and the hour and date he leaves his headquarters." (Emphasisadded)

If an employeeactually travels from his designated headquarters to his temporarypost, completesthe purpose for which the expenseswere incurred the next day, and returns the next day from his temporarypost to headquarters, certain legitimate travel expensesare necessarily incurred in connection with his job regardless of where he spendshis evenings while on aesignment. Under these circumstances,there is nothing in the appropriate statutes, quoted above,which would operate to keep an employee from receiving the expense allowances provided in Section 32, Subsection "a" and Section 33, Subsection rtal'

of the AppropriationAct, quoted above, for travel expense incurred in going to and from his temporary post, includingthe full amount allowed for expenses on a per diem basis. It is clear that an employee is fully entitled to the expenaes formileage in going to his assignmentand return and there is nothing in the Appropriation Act which would preclude such an em loyee from receivinghis full share of the nine dollar ($9.00 P per diem allowance as set out in Section 33, Subsection "a". There are no limitations on the payment of these legitimate expenses so long as the shortest route is taken and so long as the employee is traveling on state business. Whether he stays at the temporarypost at night, returns to headquarters for personal reasons, or goes elsewhere is irrelevant so long as he performs his required duties duringworking hours. His activities afterhours have
no bearing on the payment of the abovementioned legitimate travel expenses even though he is not entitledto mileage in making unauthorizedtrips to headquartersand back to his temporary post.

It is important,also, to point out that an employee may be paid, under Subsection "d", for travel expenses incurred in returning to headquartersdaily to spend the night and back to the temporarypost the nextmorning when one of the following exceptions exist. When it is t'cheaper" for the employeeDr. J.W. Edgar, page 4 (WW-1072)

to return to headquartersdaily from his temporary post, the employeemay elect to do so and be paid for travel expenses incurred, computed in themanner set out in Section

## 33,

Subsections "c" and "d", quoted above. An employeemay also be paid for daily round trips to headquarters, under Subsection "d",when he is required to do so by his superiors. Unless one of these situations exists, the expenditurefor travel to and from headquarters daily is not authorized and cannot be paid. However, the two exceptionsare distinguishedfrom and in no way affect the payment of legitimate expenses incurred in going from headquartersto the temporary post and return to headquarters on completion of work the following day, includingthe full per diem payments that the employeemay be entitledto when away from home at night on officialbusiness,whether he actually spends the night at the temporarypost or not.

Therefore, it is the opinion of this Department that under Section 32, Subsection "a" and Section

## 33,Subsection "a" of the Appropriation Act, an employee is entitled to expenses incurred in going to his temporarypost and return, including the full per diem allowance, even though he may, on his own volition and at his own expense return to headquarters at night for personal reasons. He may also be entitledto expenses involved in returning to headquartersat night if he ca.n do so "cheaper",and elect8 to do so, to be determined in themanner set out in Section 

## 33, Subsections "c" and "d" of the Appropriation Act, or if he is required to return by his superiors.

SUMMARY

An employee is entitled to expenses incurred in going to his temporary post and return to designatedheadquarters the next day, including the full per diem allowance, even though hemay, for personal reasons, return to designatedheadquarters at night at his own expense. If the employee is required to return daily to designated headquartersby his superior or if it is "cheaper",to be determined
as set out in Section

## 33, Subsections "c" and "d" of the Appropriation.Act,Dr. J.W. Edgar, page 5 (WW-1072)

an employeemay be paid for expenses incurred in returning to designated headquartersdaily,
Very truly\yours,

WILL WILSON Attorney General of Texas

Iola BarronWilcox Assistant IBW:afg/bmc

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

Robert Lewis Robert Rowland John Reeves W. Ray Scruggs

;;VIEWED FOR THE ATTORNEY GENERAL : Morgan Nesbitt