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 ofState employees, as provided for inSenate Bill 11, 62nd Legislature, R.S. , Dear Mr. Calvert: 1971.

Your recent letter requesting the opinion ofthis office concerning the referenced matter provides, inpart, as follows:

“Article V, Section 12a, Second Paragraph of Senate Bill 11 ofthe Regular Session of the SixtySecond Legislature provides as follows:

‘Reimbursement for out-of-state transportation for the use ofpersonally 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 ofthe allowance due owners ofpersonally 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 ofthe official business. (2) Expenses oftransportation to airfields from points where commercial air transportation is not available shall be allowed in addition to the cost offirst class commercial air transportation. (3) When additional passengers are conveyed on out-of-state trips inpersonally owned auto.mobiles they shall receive as their

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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 inthe Act for out-of-state travel. ’ “An examinati,on ofthis provision will reveal two things: (1) that itprovides, inthe first part ofthe paragraph, that reimbursement for the use ofpersonally owned automobiles shall never exceed the cost of commercial tourist-class transportation from the nearest airport and (2) that itprovides that where aperson resides at aplace not served by an airfield, he shall be entitled to bereimbursed for mileage tothe airport and the cost offirst-class air transportation. - “You will note that in addition to the transportation allowances inSection 12a, the second paragraph, the Legislature has, infour instances inthis paragraph, limited the employee to aper diem allowa.nce which would have sufficed had he actually flown by commercial transportation. An examination ofthe 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 ofthe boundaries ofthe 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 inthe same calendar day, the rate oftravel allowance for all travel in,that day shall be inan amount not to exceed thirty-five dollars ($35. 00) per day. ’ 1,

. . “Article V., Section 12bprovides inpart, as follows:

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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 towhat should be allowed to State employees and officials who use their personally owned automobiles intraveling out-of-state: the cost oftourist transportation inone instance, first-class in another, or first-class or tourist inboth instances?

“(2) What interpretation should be placed as to the amount of per diem allowed while traveling outside of the State intheir personally owned conveyances?

“(3) Ifyou hold that the $35. 00 a day provision under the per diem allowance should apply, please advise ifthe 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) Ihave been advised that some airlines do not have atourist rate; buthave what is called a ‘standard fare charge’ which is comparable to atourist rate. If the tourist rates are not available, must aState 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 ofthe second paragraph of Section 12(a) ofArticle V, quoted inyour letter, refers to tourist class air transportation, and that the portion ofSection 12(b) ofArticle V, also quoted inyour letter, likewise refers to tourist class

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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 ofthejudiciary to correct legislative errors, mistakes, or omissions. Ifthe language of a statute is plain, a court will not eliminate or supply aword or clause onthe supposition that itwas 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, 

### 106Tex 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 oftransportation 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) ofthe second paragraph ofSection 12(a) ofArticle V, quoted supra.

Your second question is answered as follows: the amount ofper diem expenses allowed state employees while traveling out-of-state intheir personally owned conveyances shall not exceed $35.00 per day, for the actual cost ofmeals, lodging and incidental expenses, as provided inthe second paragraph of Section 13(a) ofArticle V, set forth inyour letter. This $35. 00 per diem expense shall be inaddition to the reimbursement set forth inthe second paragraph ofSection 12(a), quoted supra, which provides, inpart, that “Reimbursement for out-of-state transportation for the use of personally owned automobiles together with per diem shall never exceed

. ” (Emphasis added. ) Inview of our answer to your second question, we are ofthe opinion

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that the formula defining “day” set forth inSection 13(b) ofArticle 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 ofthe term “incidental expenses” set forth in 20A Word’s and Phrases 111-13 (1959. ) We are ofthe opinion that your fifth question must be answered inthe affirmative. Section 12(b) ofArticle V, quoted inyour 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. ) Inview ofthe underscored portion ofthe foregoing provision, we hold that a state employee is entitled to reimbursement for first class, or any other class of, air transportation, iftourist class transportation, eo nomine, does not exist on a certain commercial airline carrier, or inthe event that atourist class seat is not available on aflight that a state employee must take in connection with necessary state business. Inthis connection, the statement by the employee ofthe 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):

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(1) the expenses oftransportation 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) ofthe second paragraph of Section 12(a) ofArticle V ofthe Bill; (2) the amount of per diem expenses allowed state employees while traveling intheir 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 inthe second paragraph of Section 13(a) of Article V cf the Bil,l), in addition to the reimbursement set forth inthe second paragraph of Section 12(a) ofthe Bill; (3) the formula defining “day” contained in Section 13(b) of Article V ofthe Bill is applicable toboth state employees on in-state business, as well as those on out-of-state business, and such, formula is tobe utilized in calculating the per diem allowance set forth inSection 13(a) ofArticle V of the Bill; (4) “incidental expense, ” as that term is used inthe second paragraph of Section 13(a) ofArticle V ofthe 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) ofArticle V ofthe Bill, a state employee is entitled to reimbursement for first class, or any other class of, air transportation, iftourist class transportation does not exist on

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a certain commercial airline carrier, or inthe event that atourist class seat is not available on aflight 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 yGeneral of Texas

NOLA WHITE First Assistant

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