Untitled Texas Attorney General Opinion

THEA~ORNEY GENERAL OF-TEXAS A~STIN~I.‘~-EXA~

November 24, 1959

Mr. John H. Winters, Commissioner State De artment of Public Welfare Austin 1E , Texas Opinion No. WW-739 Re: Computation of travel allowance on the basis of the shortest route between points, under provisions of House Bill 4, 56th Legisla- ture, 3rd Called Ses- sion, and Senate Bill 272, Acts of the 56th Legislature, Regular Dear Mr. Winters: Session. We quote as follows from your recent letter: "In computing transportation allowances for employees in tte State Department of Rub- lie Welfare, the mileage for travel reimburse- ment purposes was computed in accordance with Subsection a, Section 32 of Article V of House Bill No. 4, Acts of the 56th Legislature, Third Called Session, and in accordance with Subsection c of Section 6 of Senate Bill No. 272, Acts of the 56th Legislature, Regular Session. "The travel expense accounts of some of the employees for the month of September were returned by the State Comptroller of Public Accounts on the basis that the mileage for reimbursement purposes had to be computed In accordance with Subsection a of Section 32, Article V of House Bill No. 4 and that re- imbursement could not be made for travel on the basis of computations in accordance with Subsection c, Senate Bill No. 272. It Is our understanding that the Comptroller of Public Accounts considered that there was no appro- priation for travel computation on the basis

Mr. John H. Winters, page 2 (WW-739)

of the aforementioned Section of Senate Bill No. 272; but, on the other hand, the computa- tion had to be on the basis of the shortest route between points based upon the mileage indicated on the Farm-to-Market roads as provided in House Bill No. 4. II . . . “In additior,tothe foregoing questions pertaining to computation of mileage, we wish to raise another question which, although slightly different, is related. In determin- ing which is the shortest practical route be- tween points, not only the question of the shortest distance but also the question of practicability is involved; for example, the State highway from Austin to Dallas using the super highway around Waxahachie embodies the distance of 199 miles. By 'cutting off' of the super hibhwav and going through the busi- ness district of Waxahachie, the shortest distance is 197 miles. The Comptroller has cut back some of the expense accounts for similar reasons and one in particular in- volving this illustration. "It is our interpretation that it was more practical to use the super highway than to go through the town of Waxahachie thereby saving two miles in order to use the shortest route-which, in this instance, did not comply with the 'shortest practical route.' (Emphasis . already added). "Subsection c of Section 6 of Senate Bill No. 272 and Subsection a, Section 32, Article V of House Bill No. 4, both provide that the latest official highway map as published and released by the State Highway Department shall be used in computing mileage for travel reimbursement; how- ever, the Comptroller has prescribed that the Trucker's Guide shall be used in computing rnile,~.- age. II . . . "We will appreciate your reviewing these Sections of the Laws and your giving us your

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Mr. John H. Winters, page 3 (WW-739)

interpretation as to how the mileage should be computed by the employees of the State Depart- ment of Public Welfare for transportation re- imbursement purposes.

Subsection c of Section 6 of Senate Bill 272, Acts of the 56th Legislature, Regular Session, 1959, provides as fol- lows: "In determing transportation reimburse- ments for travel by private conveyance, the Comptroller shall base reimbursement on mile- age along the shortest practical route between point of origin and the destination via inter- mediate points at which official state business is conducted and other necessary mileage at points where official state business is conducted. The most recent annual official highway map as published and released by the State Highway De- partment shall be used by the Comptroller in computing the amounts of reimbursement for trans- portation by personal car within the State. In computing distances in excess of fifty miles, officially designated state and federal highways shall be used in determining the shortest practi- cal route between the point of origin and the point of destination via intermediate points at which official state business is conducted and other necessary mileage at points where official state business is conducted. In computing dis- tances of fifty miles or less, state and federal highways and Farm-to-Market roads shall be used by the Comptroller in determining the shortest practical route between the point of origin and the point of destination via intermediate points at which official state business is conducted and other necessary mileage at points where official state business is donducted." Section 32 of Article V of House Bill 4, Acts of the 56th Legislature, Third Called Session, provides in part as follows: "TRANSPORTATION ALLOWANCE. None of the moneys appropriated by this Actfor travel expense may be expended to reimburse costs of transportation on official business except in compliance with the

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following conditions, limitations, and rules: "a. The rate of such reimbursement shall be eight (8) cents per mile for the employee's per- sonally owned conveyance. None of the moneys ap- propriated for travel expense for mileage within the State of Texas for use of personally owned automobiles shall be expended unless the shortest route between points is used. This shall also include the use of Farm-to-Market roads. "In accordance with the provisions of Senate Bill No. 272, Acts of the Fifty-sixth Legislature, the latest official highway map as published and released by the State Highway Department shall mean the official map in use at the close of each fiscal year." Both of the acts referred to above became effective September 1, 1959. Senate Bill 272 is clearly a general law. The act does not mention Farm-to-Market roads in specifying the types of roads which the Comptroller is to use in computing distances in excess offlfty (50) miles. It is a well known rule of statu- tory construction that the express mention of one thing in an act is tantamount to an express exclusion of all others. 39 Tex.Jur. 188, Statutes, Sec. 100. The validity of this con- struction is confirmed here by the express mention of Farm- to-Market roads among the types of roads that are to be used in computing distances of fifty (50) miles or less. Hence, it is seen that Senate Bill 272 requires the Comptroller in determining reimbursements for travel by private conveyance to use only State and Federal highways in computing distances in excess of fifty (50) miles and to use Farm-to Market roads as well as State and Federal highways in computing distances of fifty (50) miles or less. Therefore, if the quoted portion of House Bill 4, the General Appropriation Bill, means that the Comptroller is to use Farm-to-Market roads in addition to State and Federal high- ways In computing distances in excess of fifty (50) miles, it is in conflict with and attempts to amend a general statute. To the extent of such conflict and attempted amendment, the quoted portions f the appropriation bill would be ineffectual because a provision of an appropriation bill is powerless to amend or modify or repeal an existing general law. State v. Steele, 57 Tex. 200 (1899); Moore v. Sheppard, 144 Tex. 537

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192 S.W.2d 559 (1946 ; Attorney General's Opinions V-412 (1947); V 1304 (19461; and V-1254 (1951). Provisions of a general appropriation bill which detail, limit and restrict the use of funds therein appropriated are in- valid when in conflict with general legislation or where they amount to general legislation. Conley v. Daughters of the Repub- lic, 106 Tex. 80, 156 S.W. 197 (1913); Attorney General's Opinion V-1254 (1951). But, in our opinion, the provisions in question are not in conflict when read together. It is a settled rule of statu- tory interpretation that.statutes dealing with the same general subject are considered in pari materia and will therefore be read and construed,together as though they were parts of the same law, all parts thereof being harmonized, if possible. 39 Tex.Jur. 253, Statutes, Sec. 135. This rule applies with even greater force to acts passed at the same session of the Legis- lature. 39 Tex.Jur. 259, Statutes, Sec. 137. When so read it is apparent that Section 32 of House Bill 4, in providing "None of the moneys appropriated for travel expense for mileage within the State of Texas for use of person- ally owned automobiles shall be expended unless the shortest route between points is used," means that none of the moneys appropriated for such purpose shall be expended except for claims computed on the shortest practical route based on Farm-to-Market roads, State highways and Federal highways where the distance is fifty (50) miles or less and based only on State and Federal high- ways where the distance is in excess of fifty (50) miles. By "shortest route" the quoted portion of House Bill 4 must be referring to the shortest route which the Comptroller is allowed by law, namely Senate Bill 272, to compute. The absurdity of otherwise construing the phrase is seen when the phrase is sought to be applied literally and without reference to the other statute on the same subject. The phrase would in- clude not only county roads, but all other paths and traces which might conceivably be negotiated by an automobile. But a Court will never adopt a construction that will make a statute absurd or ridiculous if the language is susceptible of any other meaning. 39 Tex.Jur. 222, Statutes, Sec. 118. The sentence in House Bill 4, "This shall also include the use of Farm-to-Market roads," is in no way inconsistent with Senate Bill 272 in that the "shortest route," as we have construed that phrase, does include the use of Farm-to-Market roads. It includes Farm-to-Market roads where the distance is

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fifty (50) miles or less. Moreover, House Bill 4 does not elsewhere detail the manner in which distance is computed as was done in Senate Bill 272, and the subject sentence similar- ly avoids an express recapitulation of the situations wherein Farm-to-Market roads are to be used in computing distance. The sentence thus reveals a consistent generality rather than a specific limitation. Accordingly, we are of the opinion that under the quoted portion of House Bill 4, in determining the amounts of reimbursement for travel by personal auto in this State, the computation of distances in excess of fifty (50) miles is to be based on the shortest practical route using State and Federal highways and not Farm-to-Market roads. The question ofwhat is the "shortest practical route" in a particular situation involves a determination of fact which this department is not authorized to make, our function being to set forth the legal principles by which the Comptroller and the claimant are to be governed in determining the "shortest practical route." It is clear that directness is not the sole criterion in determining the "shortest practical route." Such factors as time and road conditions must be considered along with di- rectness in determining the practicability of a route. From both of the acts, it is manifest that the route for which reimbursement is sought must be shown on the latest official highway map as published and released by the Texas Highway Department. The most recent annual official highway map as published by the State Highway Department is, in our opinion, the only authority upon which the Comptroller is authorized to rely in computing mileage forpurposes of re- imbursement. Neither of the acts considered here mention any other book, map or reference which the Comptroller might use to establish mileage. On the contrary, both of the acts are quite explicit in providing that the Comptroller shall use the State Highway Department map. Ey so providing, these acts restricted the Comptroller to such map in light of the "Expressio Unius" rule of statutory construction. 39 Tex.Jur. 188, Statutes, Sec. 100.

SUMMARY Under Subsection c of Section 6 of Senate Bill 272, Acts of the 56th Legislature,

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Regular Session, and Section 32 of Article V of House Bill 4, Acts of the 56th Legislature, Third Called Session, the computation of distances in excess of fifty (50) miles, in determining the amounts of reimburse- ments for travel by personal auto in this State, shall be based on the shortest practical route using State and Federal highways and not Farm-to- Market roads. The question of what is the shortest practical route in a parti- cular situation involves a fact deter- mination which this department is not authorized to make. Under said acts the computati,onof mi.learre sha!.3. be ',A based only on the latest official highway map as puoiished and released 'bythe Texas Highway Department. Very truly yours, WILL WILSON Attorqey General of Texas A

HGB:mg:mfh Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Dean C. Davis Robert G. Scofield Marietta Payne REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore