TRCEATTOECNEY GENERAL 

July 11, 1966 

Mr. Jess M. Irwin, Jr. Opinion No. C-720 

Executive Director 

Texas Department of Mental Re: *Legality of per diem 

Health and Mental Retardation expense claimed by cerBox s - Capitol Station taln employees of Texas 

Austin, Texas Department of Mental 

Health and Mental 

Retardation under 

Dear Mr. Irwin: stated facts. 

In a recent letter you have requested an opinion In 

regard to the above stated matter. We quote, in part, from 

your letter as follows: 

"Two employees of this department departed this 

headquarters at 5:30 p.m. on May 1 (Sunday), 1966 to 

perform official .state business at the Terre11 State 

Hospital during the working hours of Monday May 2nd, 

Tuesday May 3rd and Wednesday May 4th. On the nights 

of May lst, 2nd and 3rd these employees spent the 

night in the Lamplighter Motor Inn. . .Dallas, Texas, 

. . .approximately 25 miles from the Terre11 State 

Hospital and obtained a receipt from that place of 

commercial lodging which was submitted to the Comptroller 

. . .with their. . .Travel Voucher. . . . No mileage for 

travel each day from the hospital to the motor inn was 

claimed. The Comptroller. . .has refused to pay this 

per diem expense on the grounds 'Claimants left post 

of duty each day to travel to Dallas. From time left 

Terre11 until returned next day considered personal 

business."' 

According to the Comptroller's Office the basis for 

the rejection is Section 9 of Article 6823a, Vernon's Civil 

Statutes, and Attorney General's Opinion O-4923 (1942). 

Section 9 of Article 6823a Is quoted as follows: 

"Neither a per diem allowance nor partial per diem 

allowance as set out in the General Appropriations Acts 

shall be allowed for the period of time on those days 

when an employee Is: 

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Mr. Jess M. Irwin, Jr., page 2 (C-722) 

"(1) At his official designated headquarters. 

"(2) Absent from post of duty for personal reasons. 

“(3) Absent from post of duty for any reason not 

connected with duties of the agency by which 

the employee Is employed. 

"(4) Away from designated headquarters for a period 

of less than six consecutive hours." 

The above quoted section of Article 6823a must be 

construed in conjunction with the last appropriation act, H.B. 

No. 12, acts of 59th Legislature, Regular Session, Chapter 720, 

page 1679. 

Section 15 of H.B. 12 (Travel Regulations) pertains 

to per diem allowance and is quoted, in part, as follows: 

"a . Rates of allowance. Each employee traveling on 

State business inside the boundaries of the State of Texas 

,shall be allowed, in lieu of actual expenses incurred for 

meals and lodgin 

$' 

a flat per diem rate of not to exceed 

twelve dollars ( 12) provided there is attached to his 

expense account when submitted a 'Paid' bill or receipt 

from a commercial hotel, motel, or other commercial 

lodging establishment for his lodging, but provided 

further that if such receipt Is not submitted, the flat 

per diem rate shall not exceed seven dollars ($7)." 

Attorney General's Opinion No. O-4923 (1942) holds 

that expenses incurred in the reasonable line of travel are 

incurred while traveling on State's business, while expenses 

incurred outside the reasonable line of travel are not incurred 

while traveling on State's business. Opinion No. O-4923 is 

not applicable to the present fact situation. 

It is our opinion that the per diem allowance claimed 

by the employees in question is a proper and legal claim. The 

facts disclose that the employees were absent from their designated 

headquarters to perform official duties of the agency by which the 

employees were employed. At no time were the employees absent for 

personal reasons and at all times the employees were absent from 

their designated headquarters for reasons connected with their 

official duties. 

of duty," 

These employees were not absent from their "post 

as you state that they worked at the Terre11 State 

Hospital on the 2nd, 3rd and 4th days of May from 8 a.m. to 5 p.m. 

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Mr. Jess M. Irwin, Jr., Page 3 (C-722) 

SUMMARY 

Under the facts submitted, the per diem allowance 

claimed by the employees of the Department of Mental 

Health and Mental Retardation was incurred as a result 

of State business and Isa proper and legal claim. 

Very truly yours, 

WAGGONER CARR 

Attorney General of Texas 

JCMcC:sck 

APPROVED: 

OPINION COMMI'ITEE 

W. V. Geppert, Chairman 

Pat Bailey 

Malcolm Quick 

Paul Phy 

Sam Kelley 

f+!ikcz:oya ‘cby 

Assistant Attorney General 

APPROVED FOR THE ATTO#!NEY GENERAL 

BY: T. B. Wright 

-3479-