The Honorable Dr. H. CL Sibley Executive Director Texas Animal Health Commission 1020 Sam Houston Building Austin, Texas 70701 Opinion No. H- 58 Re: Entitlement of Commissioner of Texas Animal Health Commission to recover per diem and expenses Dear Dr. Sibley: Your letter requesting our opinion stated that a recently appointed Commissioner submitted an expense account for his initial months’ service which creates questions. The expense account which you have submitted, as well as correspondence which we have received from the Commissioner involved, indicate that he found itnecessary to travel toAustin on several occasions to get acquainted with office personnel andthe status ofvarious programs ofthe Commission, to determine what avenues were open to the Commission inthe event the United States Department ofAgriculture carried out athreat to refuse to recertify Texas as a “modified-certified free State” unless Texas took legislative action to upgrade its brucellosis program; to travel to Washington, D. C. for talks with personnel ofthe United States Department ofAgriculture as well as with members of Congress to determine if Texas would have Federal assistance cut off; and other similar trips. For these trips the Commissioner has submitted atravel voucher onthe form prescribed by the Comptroller of Public Accounts itemizing his mileage, his air transportation fees to and from Washington (which are supported by an airline receipt) and his meals and lodging. Inyour letter you point out that there were no Commission meetings during the two months involved and that the minutes ofthe Commission do not reveal any direction by the Commission to this Commissioner toperform any ofthe travel and services for which reimbureement is claimed. You also state that the Commissioner wants to know whether he is entitled to the statutor,y $20.00 per day payment for each day onwhich he performs some function attributable to Commission activities “irrespective ofwhether such services were undertaken atthe direction ofthe Commission. ”

p. 246The Honorable Dr. H. Q. Sibley, page 2(H-58)

Article 7009, Vernon’s Texas Civil Statutes, covers the creation and the composition ofthe Texas Animal Health Commission which, prior to 1959, was the Livestock Sanitary Commission ofTexas. As amended in 1965 (Acts 1965, 59th Leg., p.217, Ch. 89) the statute calls for the appointment of six citizens as Commissioners, one ofwhom is to be designated as Chairman by the Governor. “Insofar as is practicable, the Commissioners appointed hereunder shall be appointed so as to give proportionate representation from the west, from the south, from the north, and from the eastern portions of Texas

. . . ” Article 7009 concludes by stating: “Each Commissioner is entitled to receive $20 per diem plus the actual and necessary expenses incurred while inthe performance ofhis official duties. ” The duties ofthe Texas Animal Health Commission are broad and important. Generally they have to dowith regulating the movement of livestock and the requirement oftests, immunization or dipping necessary as aprotection against the dissemination of contagious, infectious or communicable livestock diseases (Article 1505a, 52, Vernon’s Texas Penal Code). They are spelled out in detail in Chapter 14ofthe Penal Code ofthe State of Texas, Articles 1505a through 1525g. Senate Bill No. 1ofthe 3rd Called Session ofthe 62nd Legislature, the Appropriation Bill for the year ending August 31, 1973, appropriates to the Animal Health Commission $3, 000 for the per diem ofBoard members. It also includes in Item 8, Consummable Supplies and Materials, etc., an appropriation for travel. Reimbursement oftravel expenses is governed generally by Article 6823a Vernon’s Texas Civil Statutes, the Travel Regulations Act of 1959. Itprovides in $6that the Comptroller ofPublic Accounts is to promulgate rules and regulations to facili.tate the execution ofthe travel regulations and, with the concurrence ofthe State Auditor toprescribe the form onwhich travel expensas are tobe submitted. “The Comptroller shall approve claims for travel expense and issue warrants onbasis of approved claims. ‘I The rules and regulations issued by the Comptroller of Public Accounts do not provide for the determination of a contested or questioned claim. The form ofthe voucher which he has prepared does call for approval ofthe Agency.

p. 247The Honorable Dr. H. Q. Sibley, page **3(H-58)**

InAtt0rne.y General Opinion V-145 (1947) this office had for consideration the authority ofthe then Livestock Sanitary Commission (now the Texas Animal Health Commission) to approve claims incurred inthe enforcement ofits statutory authority. The conclusion ofthe Opinion was:

“The chairman ofthe Livestock Sanitary Commission has full authority to approve any and all claims incurred by the Livestock Sanitary Commission inthe enforcement ofthe provisions ofHouse Bill 19, Chapter 3, Acts ofthe Regular Session ofthe 50th Legislature. I’ The statute referred to had to dowith the establishment ofquarantines to prevent the outbreak of Hoof and Mouth disease. Itappears that the only limitation imposed upon aCommissioner as to his expenses for which he is entitled to reimbursement is that they be “actual and necessary” and that they be’incurred while inthe performance ofhis official duties. ‘I Surely the official duties of a Commissioner must include ~more than merely attending meetings ofthe entire Commission and it is our opinion that each Commissioner of a department headed by a Commission has considerable discretion in determining what his activities are to be and what expenses he incurs. His discretion, however, is not unlimited. Whether or not the services are “in the performance ofhis official duties” is a determination to be made primarily by the Commissioner himself and certified to inhis travel voucher; secondly by the Commission Chairman inapproving or disapproving the voucher for payment; and thirdly, by the Comptroller ofPublic Accounts. SUMMARY Entitlement to reimbursement of travel expense and per diem of amember ofthe Texas Animal Health Commission is not dependent uponwhether itwas incurred in attending Commission meetings or whether it had been expressly directed by the Commission. A Commissioner has agreat deal of discretion in determining whether or not his actions are “in the performance ofhis official duties, ” However, because funds appropriated for such expenses are limited, the discretion is not unlimited.

p. 248The Honorable Dr. H. Q. Sibley, page 4 (H-58)

Very truly yours,

Attorney General of Texas AFPRqVED: 

# ?i&sd&

DAVID M. KENDALL, Chairman Opinion Committee



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