August 19, 1971 

Honorable Robert S. Calvert Opinion No. M-939 

Comptroller of Public Accounts 

State Finance Building Re: Questions relating to certain 

Austin, Texas travel expenses of State employees, as provided for in Senate 

Bill 11, 62nd Legislature, R. S. , 

Dear Mr. Calvert: 1971. 

Your recent letter requesting the opinion of this office concerning 

the referenced matter provides, in part, as follows: 

“Article V, Section 12a, Second Paragraph of 

Senate Bill 11 of the Regular Session of the SixtySecond Legislature provides as follows: 

‘Reimbursement for out-of-state transportation for the use of personally owned automobiles together with per diem shall never 

exceed the cost of commercial tourist class 

transportation from the nearest airport and the 

per diem required had the employee traveled 

by such conveyance. The determination of the 

allowance due owners of personally owned automobiles in compliance with this paragraph shall 

be as follows: (1) Per diem shall be determined 

by the use of an airline schedule which would 

have sufficed for the performance of the official 

business. (2) Expenses of transportation to airfields from points where commercial air transportation is not available shall be allowed in addition to the cost of first class commercial air 

transportation. (3) When additional passengers 

are conveyed on out-of-state trips in personally 

owned auto.mobiles they shall receive as their 

-4577- 
. 

. 

Honorable Robert S. Calvert, page 2 (M-939) 

expenses per diem based on automobile travel 

time. (4) Persons traveling to points not served 

by airlines shall receive mileage and per diem 

based on actual miles traveled and other expenses 

as authorized ekewhere in the Act for out-of-state 

travel. ’ 

“An examinati,on of this provision will reveal two things: 

(1) that it provides, in the first part of the paragraph, that 

reimbursement for the use of personally owned automobiles 

shall never exceed the cost of commercial tourist-class 

transportation from the nearest airport and (2) that it provides that where a person resides at a place not served by 

an airfield, he shall be entitled to be reimbursed for mileage to the airport and the cost of first-class air transportation. 

- 

“You will note that in addition to the transportation allowances in Section 12a, the second paragraph, the Legislature has, in four instances in this paragraph, limited the 

employee to a per diem allowa.nce which would have sufficed 

had he actually flown by commercial transportation. An examination of the Appropriation Act will reveal that under the 

heading, “Per Diem Allowances - Section 13a, ” the second 

paragraph provides as follows: 

:Each employee traveling on state business outside of the boundaries of the State of Texas shall receive reimbursement for the actual cost of meals, 

lodging and incidental expenses, not to exceed thirtyfive ($35. 00) per day. When both in-state and out-ofstate travel occur in the same calendar day, the rate 

of travel allowance for all travel in, that day shall be 

in an amount not to exceed thirty-five dollars ($35. 00) 

per day. ’ 

1, 

. . 

“Article V., Section 12 b provides in part, as follows: 

-4578- 
Honorable Robert S. Calvert, page 3 (M-939) 

I 

. . . The rate of reimbursement for any 

employee for whom funds are appropriated in 

this Act, for air transportation shall be tourist 

class unless tourist class is not available . . . ’ 

“I seek your advice on the following questions: 

“( 1) What interpretation should be placed upon 

Article V, Section 12a, Second Paragraph as to what 

should be allowed to State employees and officials who 

use their personally owned automobiles in traveling 

out-of-state: the cost of tourist transportation in one 

instance, first-class in another, or first-class or tourist 

in both instances? 

“( 2) What interpretation should be placed as to the 

amount of per diem allowed while traveling outside of 

the State in their personally owned conveyances? 

“(3) If you hold that the $35. 00 a day provision under 

the per diem allowance should apply, please advise if the 

formula defining ‘day’ (Section 13b) should be applied. 

“(4) Section 13a, Second Paragraph provides the 

amount that can be expended for meals, lodging and incidental expenses each day. In applying this restriction, 

what should be considered an incidental expense? 

‘I( 5) I have been advised that some airlines do not 

have a tourist rate; but have what is called a ‘standard 

fare charge’ which is comparable to a tourist rate. If 

the tourist rates are not available, must a State Employee 

secure comparable transportation or is he entitled to reimbursement for first-class transportation . . .‘I 

With reference to your first question, it should be noted that the first 

sentence of the second paragraph of Section 12(a) of Article V, quoted in your 

letter, refers to tourist class air transportation, and that the portion of Section 

12(b) of Article V, also quoted in your letter, likewise refers to tourist class 

-4579 - 
Honorable Robert S. Calvert, page 4 (M-939) 

air transportation. Notwith standing the foregoing, item (3) of Section 

12(a) specifically refers only to first class air transportation. 

The law applicable to the situation posed by your first question 

has been stated as follows: 

“It is not the function of the judiciary to correct 

legislative errors, mistakes, or omissions. If the 

language of a statute is plain, a court will not eliminate or supply a word or clause on the supposition that 

it was included or omitted by inadvertence. I’ 53 Tex. 

Jur. 2d 203, Statutes, Sec. 140. 

See also, Shoppers World, Inc. v. State, 373 S. W. 2d 374 (Tex. Civ. App. 

1963), aff’d sub nom State v. Shoppers World, Inc. 380 S. W. 2d 107 (Tex. 

Sup. 1964); Winder v. King, 297 S. W. 689 (Tex. Civ. App. l927), aff’d 1 

S. W. 587 (Tex. Sup. 1928); Ratcliff v. State, 106 Tex Grim. 37, 289 S. W. 

1072 (1926); and Creager v. Hidalgo County Water Improvement Dist. No. 4, 

283 S. W. 151 (Tex. Sup. 1926. ) 

Your first question is, therefore, answered as follows: the expenses 

of transportation to airfields from points where commercial air transportation 

is not available shall be allowed to state employees on out-of-state business in 

addition to the cost of first class commercial air transportation, as expressly 

provided in item (3) of the second paragraph of Section 12(a) of Article V, 

quoted supra. 

Your second question is answered as follows: the amount of per diem 

expenses allowed state employees while traveling out-of-state in their personally owned conveyances shall not exceed $35.00 per day, for the actual 

cost of meals, lodging and incidental expenses, as provided in the second paragraph of Section 13(a) of Article V, set forth in your letter. This $35. 00 per 

diem expense shall be in addition to the reimbursement set forth in the second 

paragraph of Section 12(a), quoted supra, which provides, in part, that “Reimbursement for out-of-state transportation for the use of personally owned 

automobiles together with per diem shall never exceed . ” (Emphasis 

added. ) 

In view of our answer to your second question, we are of the opinion 

-4580- 
Honorable Robert S. Calvert, page 5 (M-939) 

that the formula defining “day” set forth in Section 13(b) of Article V, is 

applicable to both state employees traveling on in-state and those traveling 

on out-of-state business. Your third question is, therefore, answered in 

the affirmative. 

As regards your fourth question, “incidental expenses” has previously been defined by this office to include those expenses which arise 

as reasonable incidents in connection with the authorized business trip of a 

state employee. See Attorney General’s Opinion No. M-301 (1968), for example. We construe the term “incidental expense” to include all such expenses, as well as any other minor disbursements necessary to a state employee traveling on out-of-state business. See e. g. , the various illustrations 

of the term “incidental expenses” set forth in 20A Word’s and Phrases 111-13 

(1959. ) 

We are of the opinion that your fifth question must be answered in the 

affirmative. Section 12(b) of Article V, quoted in your letter, provides, in 

part, that: 

0 

. . . The rate of reimbursement for any employee 

. for air transportion shall be tourist class unless 

tourist class is not available . ” (Emphasis added. ) 

In view of the underscored portion of the foregoing provision, we hold 

that a state employee is entitled to reimbursement for first class, or any other 

class of, air transportation, if tourist class transportation, eo nomine, does 

not exist on a certain commercial airline carrier, or in the event that a tourist 

class seat is not available on a flight that a state employee must take in connection with necessary state business. In this connection, the statement by the employee of the non-availability of such transportation on the State of Texas Travel 

Voucher should suffice. 

SUMMARY 

Pursuant to Senate Bill 11, 62nd Legislature, R. S. , 

1971 (General Appropriations Act for the fiscal year commencing September 1, 1971): 

-4581- 
Honorable Robert S. Calvert, page 6 (M-939) 

(1) the expenses of transportation to airfields from points where commercial air transportation is not available shall be allowed to 

state employees on out-of-state business in addition to the cost of first class commercial air 

transportation, as expressly provided in item (3) 

of the second paragraph of Section 12(a) of Article V of the Bill; 

(2) the amount of per diem expenses allowed 

state employees while traveling in their personally owned conveyances on out-of-state business 

shall not exceed $35. 00 per day, for the actual 

cost of meals, lodging, and incidental expenses 

(as provided in the second paragraph of Section 

13(a) of Article V cf the Bil,l), in addition to the 

reimbursement set forth in the second paragraph 

of Section 12(a) of the Bill; 

(3) the formula defining “day” contained in 

Section 13(b) of Article V of the Bill is applicable 

to both state employees on in-state business, as 

well as those on out-of-state business, and such, 

formula is to be utilized in calculating the per diem 

allowance set forth in Section 13(a) of Article V of 

the Bill; 

(4) “incidental expense, ” as that term is used 

in the second paragraph of Section 13(a) of Article 

V of the Bill, includes all those minor and necessary 

expenses incidentally incurred by a state employee 

traveling on state business, including parking, medical, and laundry expenses, inter alia; and 

(5) pursuant to Section 12(b) of Article V of the 

Bill, a state employee is entitled to reimbursement 

for first class, or any other class of, air transportation, if tourist class transportation does not exist on 

-4582- 
Honorable Robert S. Calvert, page 7 (M-939) 

a certain commercial airline carrier, or 

in the event that a tourist class seat is not 

available on a flight that a state employee 

must take in connection with necessary state 

business. 

,7 

V&y truly yours, 

Prepared bv Austin Brav 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Grace 

Jay Floyd 

Mel Corley 

Houghton Brownlee 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

y General of Texas 

NOLA WHITE 

First Assistant 

-4583-