The Attorney General of Texas 

November 10, 1977 

The Honorable Bob Bullock Opinion No. H-1089 

Comptroller of 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 

article V of the General Appropriations Act 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 maintenance of airplane 

flight logs, we will not address those questions. There 

are various federal record keeping requirements which 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 Appropriations Act (Acts 1977, 

65th Leg., art. V, sec. 53) provides in part: 

Sec. 53. ANNUAL REPORTS AND INVENTORIES. None of the moneys appropriated 

in this Act in Articles I, II, III, and 

to . . . [various agencies receiving funds 

in Article IV] may be expended after a 

period of one hundred (100) days following the close of the fiscal year, unless 

there has been filed with the Governor, 

the State Auditor, and the Legislative 

Budget Board an annual report as of 

August 31 of the preceding fiscal year 

by the executive head of each department or agency specified in this Act, 

showing the use of appropriated funds. 

The annual report shall include the 

following: 

. . . . 

p. 4469 
The Honorable Bob Bullock - Page 2 (H-1089) 

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 inquire whether persons other than the agency's employees 

may be transported on its airplane while it is in use on official 

state business, and if so, what information must 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 private persons have been transported 

on State aircraft. 

The flight must be for official business and there must 

be a business reason for the presence on it of any of the people 

you name. See Attorney General Opinions H-602 (1975); H-184 

-(1973). Travel regulations in other states permit non-employees 

to ride in state vehicles if they are traveling on official business. Minnesota Transportation Division Rules and Regulations, 

rule I B; Nevada State Administrative Manual, S 0635 at 22. 

What constitutes official business will depend on the powers 

and duties of the agency under consideration, and whether an individual's presence on a State flight furthers its business purpose 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 individual determination. Nor can we 

give an exhaustive definition of official business for purposes 

of your question, since that would require a 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 considerations relevant to the 

determination of particular cases. 

Attorney General Opinion O-4167 (19411 noted that travel 

expenses of University employees could be paid if incurred for 

State business, and that 

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

p. 4478 
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. . 

The Honorable Bob Bullock - Page 3 (H-1089) 

that the means and method adopted be reasonably necessary; it implies that the particular governmental function involved be one 

directly entrusted to the institution or 

department assuming its accomplishment. 

Id. at 7. Applying this standard, it approved payment of travel 

expenses for public relations purposes, for the purpose of meeting with journalists, contacting foundation officials and conferring with potential donors. 

Other examples of State business justifying the payment of 

travel expenses include attendance at a Commission meeting by 

a Commission member, Attorney General Opinion H-193 (1974); attendance at a training school by a State employee at the direction 

of his agency, Attorney General Opinions WW-83 (1957): S-209 

(1956); attendance at a convention by a board member at the 

direction of his board, Attorney General Opinion C-761 (1966); 

and attendance by a Railroad Commission representative at a 

dedication ceremony sponsored by the Historical Survey Committee, 

Attorney General Opinion M-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 encourage private groups 

to become involved in water quality control, and that providing 

employees for speaking engagements helped carry out this duty. 

Thus, the employees were traveling on State business and could 

be reimbursed in accordance with travel regulations set out in 

the Appropriations Act. 

The Attorneys General of two other states have articulated 

standards for the use of state-owned aircraft by state officials. 

The Attorney General of Pennsylvania concluded that the Governor 

could use state aircraft without reimbursing the state where 

the predominent purpose of the flight was official business 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 official purposes and 

he noted that transporting a Supreme Court Justice to a hearing 

on an urgent matter was undoubtedly official business. Opinion 

No. 76-201. 

The following provision of the Appropriations Act is 

. relevant to your inquiry about transportation on an agency 

aircraft of persons employed by other agencies: 

p. 4471 
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The Honorable Bob Bullock - Page 4 (H-1089) 

It is the intent of the Legislature 

that state-owned aircraft be utilized 

by all agencies of the state. To determine the extent to which this intent 

is being met, agencies operating stateowned aircraft shall file an annual 

report with the Legislative Budget Office 

detailing utilization by other agencies 

and the methods used to increase the 

utilization. 

Acts 1977, 65th Leg., art. V, S 18a (4). The inclusion on a 

flight of an employee of another agency carries out the legislative intent expressed in this provision. The employee must of 

course be' traveling on official business. See also Attorney 

General Opinion O-2258 (1940) (Liquor Control Board may pay 

travel expenses of Assistant Attorneys General assigned to it). 

This office has held that the State could pay the travel 

expenses of unpaid citizen members of a civil defense committee 

established under a federal-state contract which permitted the 

payment of such expenses from federal funds. Attorney General 

Opinion C-440 (1965). See also Attorney General Opinion M-999 

(1971) (Department of Corrections plane used to return prisoners 

from other states to serve time in Texas). 

We have discovered no prior opinions concerning the transportation of federal officials or the officials of other states 

at State expense. However, authority for provision of such 

transportation might be found in a contract with the federal 

government, a statute providing for intergovernmental cooperation, 

or a state benefit which would be realized by the transportation. 

Se+s&ig;lT.C.S..arts. 695c, S 4 (4)! (12); 4413c-1; 4413, 

Provision of transportation under such authority 

would have an official purpose and not constitute the grant of 

a benefit to a private citizen. Cf. Attorney General Opinion 

M-263 (1968) (State agency may pavalary of employee assigned 

to federal agency under grant providing reimbursement). 

Nor do any prior opinions address the transportation of 

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 Opinions H-920 (1977); 

H-184 (1973). We determined that the provision of free space 

to the media for proper media purposes would not violate article 3, section 51 of the Constitution but would serve the public 

purpose of keeping the people informed about the transaction of 

public business. In our opinion, an agency properly engaged 

p. 4472 
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The Honorable Bob Bullock - Page 5 (H-1089) 

in disseminating information to the public, see Attorney General 

Opinions H-275 (1974)7 O-4167 (19411, might under appropriate 

circumstances include journalists on 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 treatment of travel expenses incurred by the 

spouses of federal officials provideo some helpful analogies. 

Such expenses are not deductible unless the spouse's presence 

serves a business purpose. Weatherford v. United States, 418 

F.Zd 895 (9th Cir. 1969). See Wilkins v. United States, 348 

F. Supp. 1282 (D. Neb. 1972)aaffa without opinion, 486 F.Zd 

1407 (8th Cir. 1973) (travel expenses incurred bv wife of 

Foreign Service inspector on inspection trip wer; deductible 

business expenses), and S. Rep. No. 768, 93d Cong., Zd Sess. 

157 (1974) (certain trips on government aircraft by President's 

wife were for official purcose. such as standins in for the 

President). See also Unitid States v. Disn , i13 F.Zd 783 

(9th Cir. 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 transportation will 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 connection with 

that purpose are factors relevant 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 business purpose 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 information to help explain the official 

business purpose of the flight. 

YOU state that an agency may use an airplane belonging to 

another agency without entering into an interagency contract, 

and inquire which agency should include information about 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 agency whose appropriation pays for the 

p. 4473 
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The Honorable Bob Bullock - Page 6 (H-1089) 

use Of the plane should include that use on it6 annual report. _ 

In mOst ca6e6, the agency that owns the aircraft would be the 

proper agency to report us: of the plane while it is being 

used by another agency. 

YOU finally inquire whether any State agency ha6 authority 

to promulgate guideline6 concerning the u6e and operation of 

State-owned and leared aircraft. Each agency head ir responsible 

for the proper custody and care o f the State property possessed 

by his agency. V.T.C.S. art. 6252-6, S 5. The agency head has 

considerable discretion as to the use of aircraft owned or leased 

by his agency, subject to limitations in statute and the appropriationr act. See, e. Attorney General Opinions S-142 (1954); 

O-4167 (1941). See a T- so V.T.C.S. arts. 6252-15; 6252-19a, 9 1. 

SUMMARY 

Article V, section 53e requires State 

agenciee which rent or lease aircraft to 

include in their annual report to the 

Legislative Budget Board certain information regarding u6e of the aircraft, 

including names of passenger6 and official businese purpose of each flight. 

Persons such as employees of another 

agency, officials of another state or 

the federal government, journalists, 

spouses of State officials and other 

private persons may be transported on 

aircraft operated by a State agency 

when their presence on the flight furthers an official business purpose. 

Where one agency uses the airplane of 

another, the agency whose appropriation 

pays for use of the airplane should include that use on its annual report. 

The agency head has considerable di6- 

cretion with respect to use of aircraft 

owned or leased by hi6 agency. 

Very truly youre, 

// 

Attorney General of Texas 

p. 4474 
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.; 

t 

The Honorable Bob Bullock - -9 7 (H-1089) 

APPROVED: 

C. ROBERT HEATH, Chairman 2 

Opinion Committee 

jst 

p. 4475