The opinion
213
March 20, 1952
Hon.~Paul H. Brown
Fire Insurance Commissioner
Board of Insurance Commissioners
815 Brazes
Austin 1, Texas Opinion NO. V-1422.
Re: Limitation upon reimburse-
ment for meal and lodging
expenditures by State Fire
Insurance Commissioner, or
by employee of the Fire In-
surance Division when ln-
vestigating a fire at the
request of an interested
Dear Sir: party.
You have requested the opinion of this of-
fice on the following questions:
“1. Is the State Fire Marshal, when
-.he mak@ an investi tion under Article
5.45 LInsurance Cod2 providing ‘then the
expenses of the State Fire Marshal, clerl-
cal expenses, witnesses and officers fees
in and B to such investiga-
‘. ti”oashall be paid by such insurance oom-
.paxiyllimited to the $6.00 per day ex-
penses provided in the rider to the appro-
Nation bill set out In Section 2(12) -
3 raveling Expenses-g?
“2. 1s L employee of the Fire In-
27 when so.acting and so
surance Divislo
designated, to be paid his expenses as pro-
vided in Article 5.45 or Is he limited un-
der the rider to the appropriation bill to
$6.00 per day for meals ana ioaging?~~
An employee of the Fire Insurance Division
who was appointed by you under the authority contained
in Article 5.45, Insurance Code, to make an lnve’stiga-
tlon, incurred meal ana lodging expense in excess of
Hon. Paul H. Brown, page 2 (V-1422)
$6.00 per day. Your problem has arisen because of the
refusal of the Comptroller to issue a warrant for a
sum in excess of $6.00 per day.
Article 5.45, Insurance Code, provides:
"If for any reason the State Fire Mar-
shal is unable to make any required investi- _
gation in person, he may designate the fire
marshal of such city or town or some other
suitable person to act for him; and such
person so designated shall have the same au-
thority as is herein given the State Fire
Marshal.with reference to the particular
matter to be investigated by him, and shall
receive such compensation for his services i"
as the Board may allow. 1 f the lnvestig+ ;$
tion of a fire is made at the reauest of an .+
insurance company, or at the request of a ',
.;:.i
policyholder sustaining loss, or at the re- ?'
auest of the mayor. town clerk or chief of
the fire department of any city, village or
town in which the fire occurred. then the
expenses of the Fire Marshal. clerical ex-
penses, witnesses and officers fees incident
and necessary to such investigation shall be
paid by such insurance company. or such pol-
icy holder or such city or town as the case
may be, otherwise the expenses of such in-
vestigation are to be paid as part of the
expenses of the Board. The party or parties,
company or companies, requesting such,in-
vestigation, shall before~such investigation
is commenced deposit with the Board an mt
of money in the judgment of said Board,suffi-
cient to defray the expenses of said Fire
Marshal in conducting such investigation."'
This statute in effect requires an insurance
company.or other party requesting an investigation to
pay to the Board, on behalf of the State, an assessment
equal to the actual expenses incurred in the requested
investigation. This assessment becomes state property
upon the completion of the investigation and the a pro-
6.
val of the expense account. Att'y Gen. Op. v-1336 95U
u Emphasis added throughout.
Hon. Paul H. Brown, page 3 (V-1422) 235
The above statute makes this money available only for
the specified purpose of paying the expensesincurred
in carrying out the investigation.
However, the fact that an assessment isloade
and collected and the fund IS earmarked by general
statute for a certain use does uot ,make itavailable
unless,it is also appropriated by~the Legislature for
that use. Furthermore, even though a general statute
specifies payment of a certain amount, the amount ac-
tually paid is determined by the amount7a;;rp;;;ted
by the Legfslature. StatTev. Steela,
(1882), and den v. Fin Y 2 51, 4; s.w.%8
(1899),Att'$%en. Op. V-12& :?9%:
Therefore the b~asicquestion to be deter-
mined is whether the general appropriation bill for
_ the biennium ending August 31, 1953, appropriates to
,.:Fire Insurance Division personnel acting as fire in-
vestigators their actual expenses when making an in-
:vestigation at the request of an insurance company or
other party.
Section 12(g) of Article III, House Bill 426
(the general ap ropriation.bill), Acts 52nd Legislature,
99, p. 1228, at p. 1437, provides:
R.S. 1951, ch. f:
"All employees traveling at the ex-
pense of the State are hereby limited to
the amount of Four Dollars ($4) per day
for meals and a total of six Dollars ($6).
per day for meals and lodging it being .,
specifically provided that the employees
shall obtain receipts for all Items-of vex-
pense claimed except meals, and shall file
such receipts with their duly Itemized and
sworn expense accounts; provided. however,
that the meals and lodd.nP:limitations im-
posed bs this subsection (12g only) Shall
pot applv to any elected State official
por to any appointed State official nor to
any appointed State official whose appoint-
plentis subject to Senate confirmation,
when traveling in or out of the State; nor
to employees of the Executive Department,
and employees of other State Departments
designated by the Governor to rep.resent
him officially at governmental meetings or
i
Hon. Paul H. Brown, page 4 (V-1422)
conferences when held out of the State;
nor to any Assistant Attorney General,
or representative of the State Health
Officer, or representative of the Adju-
tant General, or representative of the
State Board of Vocational Education,
or representative of the Department of
Public Welfare, or representative of the
State Highway Commission or representa-
tive of the Railroad Commission when any
of these classes of State employees are
appearing before any Federal Agencies or
agencies of other States in any other
State or Washington, D.C."
The underlined portion of~the above quoted
subsection answers your first question. The p,rovlso
that section 12(g) shall not apply to appointed offi-
cials subject to confirmation by the Senate is appli-
cable to you as Fire Insurance Commissioner since
your office is of the excepted type 2nd the investiga-
tion of fires is one of your duties. You are there-
fore advised that the traveling expense of the State ' 2
Fire Insurance Commissioner is not limited by this
section, a@ that you should receive your actual ex-
penses, which are to be paid out of the fund hereti-
after discussed when you are making an investigation
pursuant to Art. 5.45,m.'
The above exception is not applicable to em-
ployees of the Fire Insurance Division, and If this
were the only section regulating the expenditures for
meals and lodging the mamum reimbursement to employ-
ees would be $6.00 per day.
The appropriation to the Fire Insurance Di-
Vision provides in part:
81Provlaeaalso that such sums as are
received by the Fire Mvision as provided
a Art. 1.02 Insurance code, provides in part:
'1. . . The dudes heretofore and now placed upon and
the powers and privileges heretofore and to be exer-
cised by the State Fire,Marshall shall continue in and
be had, enjoyed, and exercised by the Fire Insurance
Commissioner.14
. .
Eon. Paul H. Brown, page 5 (V-1422)
217
by Article 4898 R.c.S. .&t. 5.45, In-
.surance Goad shall'be deposited to the
Departmental Suspense Account in the
.State Treasury. Expenses of State em&
ployees incident to,.theinvestigations
shall be paid from travel expenses-here-
<inabove appropriated.and such travel
~.expense.appropriition shall~be reimbursed
for,the actual amounts exuended unaex~the
.bprovisions of Article 4828 R.CiS.~ :fArti-
.cle 5.45, Insurance.Codd by a transfer
from the amount on deposit pBthc2ypart-
mental Suspense Account." . . ,
supra, at p. 1373.
We have previously heid this provision to be a con-
tinuing appropriation during this biennium of-the
expense money fees collected,frbm parties re uesting
fire investigations. Attly Gen. Op; V-1336,,?1950.
This provision appropriates a sum sufficient~to pay
the w expenses incurred~by employee investiga-
tors under the provisions of Article 5.45, sunra.
These expenses would obviously include the actual
cost of meals and lodging.
Thus, In the general approp&ati.on bill,
there is a~specific provision appropriating funds to
defray the actual expenses of a fire investigator,
and a general provision limiting meals and lodging
expenses of State employees to $6.00 per day. The
provisions are in conflict whenever~act1-d expenses
are in excess of $6.00 per day. ~ti.case of conflict,
the specific provision controls over the general pro-
vision of the same act. Gulf Tnsurance Co. v. James
143 Tex. 424, 185 S.W.2d 966 (1945);Att'y Gen. Op. '
V-378 (1947). In compliance with this well estab-
lished rule you are a.&isea that employees of the~l?lre
Tnsurance Division investigating fires at the instance
of insurance companies or other parties pursuant to
Article 5.45, supra.,may properly be issued warrants
for their actual expenses.
Our holding is in accord with the results
reached in Attorney General's Opinions O-4289 (1942)
and o-7367 (1946). These opinions involved the ques-
tion of whether insurance examiners traveling out of
State to make examinations wnder the provisions of Ar-
title 1.16, Insurance Code (tit. 469Oa, V.C.S.), were
Hon. Paul H. Brown, page 6 (V-1422)
limited to $4.00 per day for meals and lodging as
provided in the general appropriation bills. Both
opinions held that the examiners were entitled to
their actual expenses. These opinions were based
on the wording of the.general statute, and the ques-
tion of an appropriation of the funds for the ex-
penses of the examiners was not discussed. Ho?jever,
a search of the appropriation bills during the years
involved reveals that the funds collected were ap-
propriated for the actual expenses of the examiners
incurred in making the examinations.
SuMMAFtY
The State Fire Commissioner, being
an appointed State official subject to
Senate confirmation, is excepted from the
provision of the general appropriation
bill limiting-meal and lodging expenses
i’
I. to 56.00 per day (sec. 12(g), Art. III,
R.S. 195l, ch.
&t; F6i2$:'aZ2i" 1"$$.
- The s ecific appropriation contained
In H.B. 42g , suura, at p. 1313, to cover
the actual meal and lodging expenses of
employees investigating fires at the re-
quest of a party pursuant to Article 5.45,
Insurance Code, is controllinlrover the
general limitation containedin tin*proprLa-
tion bill limiting State employees to g6.00
per day for meals and lodging.
Yours very truly
PRICE DANIEL
APPROVED: Attorney General
E. Jacobson
Reviewing Assistant
BycqTgb
Charles D. Mathews E. Wa Thoae
First Assistant Assistant
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