### TRCEATTOECNEY GENERAL

July 11, 1966

Mr. Jess M. Irwin, Jr. Opinion No. C-720 Executive Director Texas Department of Mental Re: *Legalityof 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 Retardationunder Dear Mr. Irwin: stated facts.

In a recent letter you have requested an opinion In regard to the above statedmatter. We quote, in part, from your letter as follows:

"Two employees of this department departed this headquartersat 5:30 p.m. on May 1 (Sunday), 1966 to perform official .statebusiness 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 LamplighterMotor Inn.
. .Dallas,Texas,

. . .approximately25 miles from the Terre11 State Hospital and obtained a receipt from that place of commercial lodgingwhich was submitted to the Comptroller

. . .with their.
. .TravelVoucher.
. . . No mileage for travel each day from the hospital to the motor inn was claimed. The Comptroller.
. .hasrefused to pay this per diem expense on the grounds 'Claimantsleft 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: "Neithera per diem allowance nor partial per diem allowance as set out in the General AppropriationsActs shall be allowed for the period of time on those days when an employee Is:
-3477-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 connectedwith duties of the agency by which the employee Is employed. "(4) Away from designated headquarters for a period of less than six consecutivehours." The above quoted section of Article 6823a must be construed in conjunctionwith the last appropriation act, H.B. No. 12, acts of 59th Legislature, Regular Session, Chapter 720, page 

### 1679.

Section 15 of H.B. 12 (TravelRegulations)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 ,shallbe 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 accountwhen 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 incurredwhile 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 employeeswere absent from their designated headquarters to perform official duties of the agency by which the employeeswere employed. At no time were the employees absent for personal reasons and at all times the employeeswere absent from their designated headquarters for reasons connectedwith 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.

-3478-Mr. 

### JessM. Irwin,Jr.,Page 3 (C-722)

SUMMARY Underthe factssubmitted,theper diemallowance claimedby the employeesof theDepartmentof Mental HealthandMentalRetardation was incurredas a result of Statebusinessand Isa properand legalclaim. Very trulyyours, WAGGONERCARR AttorneyGeneralof Texas

JCMcC:sck APPROVED: OPINIONCOMMI'ITEE W.V. Geppert,Chairman Pat Bailey MalcolmQuick PaulPhy SamKelley 

# f+!ikcz:oya

‘cby

AssistantAttorneyGeneral

APPROVEDFOR THEATTO#!NEY GENERAL BY: T. B. Wright

-3479-