# The Attorney General ofTexas

November 10, 1977

The Honorable Bob Bullock Opinion **No.** H-1089 Comptrollerof Public Accounts L.B.J.Building Re: Use of aircraft Austin,Texas 78774 **owned** or leased by State agencies. Dear Mr. Bullock:
you have asked several questions about provisions of articleV **of** the General AppropriationsAct concerning the use of State-owned or leased aircraft. Your first four questions inquire about flight logs and the information to be contained in them. However, since the current Appropriations Act does not refer to the maintenanceof airplane flight logs, we will not address those questions. There are various federal record keeping requirementswhich apply to aircraft, but your request is not directed at them. e.g., 14 **C.F.R.** 99 43.9, 43.11, 61.51 (1977). See,

Section 53 of the current AppropriationsAct (Acts 1977, 65th Leg., art. V, sec. **53)** provides inpart:

Sec. **53.** ANNUAL REPORTSAND INVENTORIES. None of the moneys appropriated in this Act in Articles I, II, III, and to
. . . [variousagencies receiving funds in Article IV]may be expended after a period **of** one hundred (100)days following the close of the fiscalyear, unless there has been filed with theGovernor, the State Auditor, and the Legislative Budget Board an annual report as of August 31 **of** the preceding fiscalyear by the executive head of each department or agency specified in this Act, showing the use of appropriated funds. The annual report shall includethe following:

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**e. A**  summary **of** the use made of state owned aircraft or aircraft operated under long term lease or rental. The summary shall include aircraft description,date purchased or leased, cost, hours flown, number of flights and destination,number and names of passengers and the official business purpose of each flight.
Acts 1977, 65th Leg., art. V., 8 53.
You inquirewhether persons other than the agency's employees may be transported on its airplanewhile it is in use on official state business, and if so, what informationmust be recorded concerning such persons. You inform us that,when seating space is available,persons such as employees **of** other State agencies, federal officials, officials of other states, journalists, spouses of State officials, and other privatepersons have been transported on State aircraft.
The flightmust be for official business and theremust be a business reason **for** the presence on it of any of the people you name. See Attorney General OpinionsH-602 (1975);H-184 -(1973). Travel regulations in other statespermit non-employees to ride in state vehicles if they are traveling on official business. Minnesota Transportation DivisionRules and Regulations, rule I B; Nevada State AdministrativeManual, S 0635 at 22.
What constitutes official businesswill depend on the powers and duties of the agency under consideration,and whether an individual'spresence on a State flight furthers its businesspurpose will depend upon all the facts and circumstances **of** each case. Since you do not inquire about any particular trip,we cannot make the necessary individualdetermination. Nor can we give an exhaustive definition of officialbusiness for purposes of your question, since that would requirea survey of the powers and duties of all state officials and agencies. We can, however, give you some examples from prior opi.nions **of** the official business purpose of travel by various persons, including private citizens, and thus point out considerationsrelevant to the determination of particular cases. Attorney General Opinion O-4167 (19411noted that travel expenses **of** University employees couldbe paid if incurred for State business, and that

"State business" signifies the accomplishment of a governmental function;it requires

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that themeans and method adopted be reasonably necessary; it implies that the particular governmental function involved be one directly entrusted to the institutionor department assuming its accomplishment.
Id. at 7. Applying this standard, it approvedpayment of travel expenses for public relationspurposes, **for** the purpose ofmeeting with journalists, contacting foundation officials and conferring with potential donors. Other examples of State business justifyingthe payment of travel expenses includeattendance at a Commission meeting by a Commission member, Attorney General Opinion H-193 (1974);attendance at a training schoolby a State employee at the direction of his agency, Attorney General Opinions WW-83 (1957):S-209 (1956);attendance at a convention by a boardmember at the direction of his board,Attorney General OpinionC-761 (1966); and attendance by a Railroad Commission representativeat a dedication ceremony sponsoredby the Historical Survey Committee, Attorney General OpinionM-121 (1967). See also Madden v. Riley, 128 P.2d 602 (Cal.Ct. App. 1942); Louisville and Jefferson County Board of Health v. Steinfeld, 215 S.W.Zd 1011 (Ky.Ct. App. 1948). In Attorney General Opinion H-275 (1974)we concluded that employees of the Water Quality Board who spoke to private citizen groups at the Board's request could be reimbursed for travel expenses incurred during these speaking engagements. We noted that the statute required the Board to encourageprivate groups to become involved in water quality control, and that providing employees for speaking engagements helped carry out this duty. Thus, the employeeswere traveling on State business and could be reimbursed in accordancewith travel regulationsset out in the Appropriations Act. The Attorneys General of two other stateshave articulated standards for the use of state-owned aircraftby state officials. The Attorney General of Pennsylvania concluded that the Governor could use state aircraftwithout reimbursing the state where the predominent purposeof the flight was officialbusiness and personal business was secondary. Opinion No. 75-20-B. The Attorney General of Oklahoma determined that the Governor had wide latitude to use state aircraft **for** officialpurposes and he noted that transportinga Supreme Court Justice to a hearing on an urgent matter was undoubtedly officialbusiness. Opinion No. 76-201. The followingprovision of the AppropriationsAct is

. relevant to your inquiryabout transportation **on** an agency aircraft of persons employedby other agencies:

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It is the intent of the Legislature that state-ownedaircraftbe utilized by all agencies of the state. To determine the extent to which this intent is being met, agencies operatingstateowned aircraft shall file an annual report with the LegislativeBudgetOffice detailing utilizationby other agencies and the methods used to increase the utilization.
Acts 1977, 65th Leg., art. V, S 18a (4). The inclusionon a flight of an employee of another agency carriesout the legislative intent expressed in this provision. The employeemust of course be'traveling on official business. See also Attorney General Opinion O-2258 (1940) (LiquorControlBoardmay pay travel expenses of AssistantAttorneys General assigned to it). This office has held that the State couldpay the travel expenses of unpaid citizen members of a civildefense committee established under a federal-statecontractwhich permitted the payment of such expenses from federal funds. Attorney General Opinion C-440 (1965). See also Attorney GeneralOpinionM-999 (1971) (Departmentof Correctionsplane used to returnprisoners from other states to serve time in Texas).
We have discovered no prior opinions concerning the transportation of federal officials or the officialsof other states at State expense. However, authority for provisionof such transportationmight be found in a contractwith the federal government, a statuteproviding for intergovernmentalcooperation, or a state benefit which would be realizedby the transportation. Se+s&ig;lT.C.S..arts. 695c, S 4 (4)! (12);4413c-1; 4413,

Provision of transportationunder such authority would have an officialpurpose and not constitute the grant of a benefit to a private citizen. Cf. Attorney General Opinion M-263 (1968) (Stateagency may pavalary of employee assigned to federal agency under grantproviding reimbursement).
Nor do any prior opinions address the transportationof journalists at State expense. We have, however, said that the Legislature could provide rent free office space in the Capitol to news organizations. Attorney General OpinionsH-920 (1977); H-184 (1973). We determined that the provisionof free space to the media for proper media purposeswould not violate article 3, section 51 of the Constitutionbut would serve the public purpose of keeping the people informedabout the transactionof public business. In our opinion, an agency properly engaged

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in disseminating informationto the public, see Attorney General Opinions H-275 (1974)7O-4167 (19411,might under appropriate circumstances include journalistson a flight on official business.
We find no opinions regarding the provision of free transportation to spouses of State officials, but we believe that the federal tax treatmentof travel expenses incurredby the spouses of federal officials provideo some helpful analogies. Such expenses are not deductibleunless the spouse's presence serves a business purpose. Weatherford v. United States, 418 F.Zd 895 (9thCir. 1969). See Wilkins v. United States, 348 F. Supp. 1282 (D.Neb. 1972)aaffa without opinion, 486 F.Zd 1407 (8thCir. 1973) (travelexpenses incurredbv wife of Foreign Service inspectoron inspection trip wer; deductible business expenses), and S. Rep. No. 768, 93d Cong., Zd Sess. 157 (1974) (certaintrips on government aircraftby President's wife were for official purcose. such as standins in for the President). See also Unitid States v. Disn , i13 F.Zd 783 (9thCir. 1969); Warwick v. United States, **6** F. Supp. 761 (E.D.Va. 1964).
Under circumstances similar to those that establish a bona fide business purpose under federal tax law, we believe the spouse of a public official engages in official business so that the provision of free transportationwill not constitute the grant of a benefit to a private person in violation of article 3, section 51. See also Informal opinion from office of Attorney General of Utah to Director, Department of Finance, September 12, 1977. The nature and duties of the office, the traditional role, if any, of the officeholder's spouse, the purpose of a particular trip and the spouse's connectionwith that purpose are factorsrelevant to the determination that there is an official purpose **in** a particular case. When any person is transported on its airplane, section 53e requires that his name and the official businesspurpose **of** the trip be reported. The section **does** not require other identifying information, such as title, but the reporting agency may wish to include such informationto help explain the official business purpose of the flight.
YOU state that an **agency** may use an airplanebelonging to another agency without entering into an interagencycontract, and inquire which agency should include informationabout those flights in its annual report. **Since** the purpose of the annual reports required by section 53 is to show the use of appropriated funds, we believe the agencywhose appropriationpays for the

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use Of the plane should include that use on it6annual report.

_ InmOst ca6e6, the agency that owns the aircraftwould be the proper agency to report us: of the plane while it is being used by anotheragency.
YOU finally inquirewhether any State agencyha6 authority to promulgateguideline6 concerning the u6e andoperation of State-ownedand leared aircraft. Each agencyhead ir responsible for the proper custody and care of the Statepropertypossessed by his agency. V.T.C.S. art. 6252-6, S 5. The agency head has considerablediscretion as to the use of aircraftowned or leased by his agency, subject to limitations in statuteand the appropriationr act. See, e. Attorney General OpinionsS-142 (1954); O-4167 (1941). See a so V.T.C.S. arts. 6252-15;6252-19a, 9 1. T-
SUMMARY ArticleV, section 53e requires State agencieewhich rent or lease aircraftto include in their annual report to the LegislativeBudget Board certain information regarding u6e of the aircraft, includingnames of passenger6 and official businesepurpose of each flight. Persons such as employees of another agency,officials of another stateor the federalgovernment, journalists, spousesof State officials and other privatepersons may be transportedon aircraftoperated by a State agency when theirpresence on the flight furthersan official business purpose. Where one agency uses the airplaneof another, the agency whose appropriation pays for use of the airplane should include that use on its annual report. The agency head has considerabledi6- cretion with respect to use of aircraft owned or leasedby hi6 agency. Very trulyyoure,

// Attorney General of Texas

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APPROVED:

C. ROBERT HEATH, Chairman 2 Opinion Committee jst

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