Did a subpoenaed Texas state employee receive paid leave, per diem, and travel reimbursement for a court appearance?

Texas AG Opinion JM-785: Leave and Travel Benefits for Subpoenaed Employees

Plain-English summary

The Texas Department of Corrections asked whether employees subpoenaed to testify in court were entitled to paid leave, per diem, and reimbursement for transportation expenses.

The Attorney General drew a line between official and private appearances. An employee called to testify in an official capacity was performing part of the job and did not need to take leave.

For a subpoena involving the employee's private capacity, the agency head had discretion to decide whether the circumstances amounted to good cause for emergency leave. The opinion did not create an automatic leave entitlement for every subpoena.

Per diem and travel reimbursement were narrower. The appropriations act tied per diem to official travel and transportation reimbursement to official business. An employee appearing only in a private capacity therefore did not qualify for either payment.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did an employee need leave to testify as part of the employee's state job?

No. The opinion treated official-capacity testimony as part of the employee's work.

Did every private subpoena require the agency to grant paid leave?

No. The agency had discretion to decide whether the subpoena showed good cause for emergency leave.

Could a privately subpoenaed employee claim per diem?

No. The appropriations act limited per diem reimbursement to expenses incurred in official travel.

Could that employee recover transportation costs?

Not for a private-capacity appearance. The act authorized transportation reimbursement for official business.

What did the request mean by administrative leave?

The opinion assumed the request referred to emergency leave under the appropriations act.

Background and statutory framework

The appropriations act for the 1986-87 biennium specified paid sick leave, vacation, and other forms of paid leave for state employees. Its emergency-leave provision required leave after a death in the employee's family and allowed an agency head to grant emergency leave for other reasons when the employee showed good cause.

The same act authorized per diem for expenses incurred in official travel and transportation reimbursement for costs incurred on official business. Those limits made the capacity in which the employee appeared decisive.

JM-785 concluded that official-capacity testimony was part of the employee's job. A private-capacity appearance did not qualify as official travel or official business, although the agency retained discretion over emergency leave.

Citations and references

Appropriations acts:

• General Appropriations Act, Acts 1985, 69th Legislature, chapter 980, article V, section 8, at V-36
• General Appropriations Act, Acts 1985, 69th Legislature, chapter 980, article V, sections 13 and 14, at V-41 and V-43
• General Appropriations Act, Acts 1987, 70th Legislature, Second Called Session, chapter 78, article V, section 8, at V-41

Prior opinions:

• Attorney General Opinion V-1210 (1951)
• Attorney General Opinion O-5803 (1944)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-785
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0785.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

September 14, 1987

Mr. James A. Lynaugh
Interim Director
Texas Department of Corrections
P.O. Box 99
Huntsville, Texas 77340

Opinion No. JM-785

Re: Whether employees of the Department of Corrections are entitled to administrative leave or per diem and reimbursement for travel in certain circumstances

Dear Mr. Lynaugh:

You ask whether certain employees are entitled to "administrative leave," per diem, and reimbursement for travel. Specifically, you ask whether employees who are subpoenaed to testify in court are entitled to those benefits.

We will first address your question about "administrative leave." Each biennium the appropriations act sets out the types of leave to which state employees are entitled. Under the appropriations act for the 1986-87 biennium, state employees are entitled to paid sick leave and vacation and to leave with pay under other specified circumstances. Acts 1985, 69th Leg., ch. 980, art. V, §8, at V-36. See also General Appropriations Act, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, §8, at V-41 (comparable provisions for the 1988-89 biennium). The appropriations act also provides for "emergency leave":

The administrative head of an agency shall grant an emergency leave to an employee because of a death in the employee's family. The death of the employee's spouse, or the employee's or spouse's parents, brothers, sisters, grandparents, grandchildren and children shall constitute adequate need for emergency leave. The administrative head of the agency may make a determination on other reasons for emergency leaves and shall grant an emergency leave, when in his determination, the employee shows good cause.

Id. at §8(d). We assume that you mean "emergency leave" by the use of the term "administrative leave." Cf. id. at §8(c), (providing for leave without pay, subject to certain provisions).

You state that it is the department's position that an employee may be granted paid leave to testify in a court action only if the appearance is in his official capacity. If an employee is called to testify in his official capacity, in other words, as a state employee qua state employee, his appearance is part of his job, and he need not take leave of any sort. See Attorney General Opinions V-1210 (1951); O-5803 (1944). Whether a subpoena requiring a state employee to appear in court in his private capacity would constitute good cause for the department to grant emergency leave is a question left to the discretion of each agency.

You also ask whether an employee subpoenaed to testify in court is entitled to a per diem allowance for the court appearances in question. The appropriations act provides that per diem reimbursement is for "expenses incurred in official travel." Acts 1985, 69th Leg., ch. 980, art. V, §14, at V-43. Unless the employee in question is appearing in his capacity as a state employee, he is not entitled to per diem reimbursement. See also Acts 1985, 69th Leg., ch. 980, art. V, §2(e) (prohibiting payment of per diem to a state employee who receives witness fees for a court appearance in his official capacity).

Finally, you ask whether an employee is entitled to reimbursement for the transportation expenses involved in making the court appearances. The appropriations act provides for reimbursement for "costs of transportation on official business." Acts 1985, 69th Leg., ch. 980, art. V, §13, at V-41. Again, if an employee is not called to be a witness in his capacity as a state employee, he is not entitled to reimbursement for travel expenses.

SUMMARY

A state employee is not entitled to per diem reimbursement or reimbursement for travel expenses for a subpoenaed court appearance unless the employee appears in his capacity as a state employee. Whether a subpoena requiring a state employee to appear in court in his private capacity constitutes good cause for emergency leave is a question left to the discretion of each agency.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General