Untitled Texas Attorney General Opinion ( 1953 )

August 24, 1953
Hon. Rotart SL oalvert
Comptrollar of PI&UC Acoounts
Austin, Texas .Opinlon NO. s-89
Rer 1, Authority of the Comp-
troller to Issue warrant4 in
payment of wltneea feet3 ao-
signed to a county.
2. Aut,hority to Issue war-
rants for witness Pees,to, ang,.~
of the offio,ers named in k&4-
cl& 380, Vernon's Penal Code,
when such officers have pur-
Dear 1wr, Calvert: chased such wit~nesa fee bIlla.
Your request for our opinion read0 in part a0
follows:
"This Department has received a witness
fee bill for fees 'aooruing to,a witness under
the provisions of Article 1036 C.C.P* The
wltneea apparently attempted to assign hi6
witness fee account to Jeff Davis County,,
which County paid the 'wltneas,the full amount
of hle witneerr fee aocount. The Dleerlot
Clerk of the County requests that a~Uarrhnt
;;e:asued to the County for these witness
.
Yioulcl it be legal r0r this nbrttint
to Issue a warrant to the County Par these
fees?
"Would It be legal for this Departmmt
to issue a warrant for ritnass feed to iucf
o? the oflioer;s named in Arelole 380 P,C. in
lnstanoes when said oPflosrB have purohaBQd
witness fee bills?"
. 1
Hon. Robert S. Calvert, page 2 (S-89)
Section 5 of Article 1036, Vernon’s Code of
Criminal Procedure, provides in part as follows:
"The Comptroller, upon reaeipt of such
claim and the certified list provided for
in the foregoing section, shall carefully
examine the same, and If he deems said
claim correct, and In compliance with and
authorized by law in every respect, draw his
warrant on the State Treasury for the amount
due in favor of the witness entitled to
same, or to any person such certificate has
been assigned by such witness, but no war-
rant shall issue to any assignee of such
witness' claim unless the assignment is made
under oath and~acknowledged before some per-
son duly authorized,to administer o.aths,
certified to by the Officer and under seal."
It is noted that the attempted assignment of
the witness fee bill involved assigns the account to the
witness himself, and is therefore ineffective as an
assignment. Therefore, under the section of Article
1036 quoted above, the Comptroller would not be author-
ized to Issue a warrant in payment of such claim to any
person other than the witness himself.
It is,probable that this assignment can be
corrected to show that Jeff Davis County Is the:,trueas-
signee,~as such appears to have been the Intent of the
parties, and the claim then again presented to your
office.
In such event it is assumed that your first
question was Intended to inquire as to the legality of
payment after an assignment of such a claim to a county.
In this regard it is noted that the part of Section 5
above quoted authorizes an assignment "to any person."
Article 1572, V.C.S., provides "Each co.unty.
which now exists or which may be hereafter established
shall be a body corporate and politic." Article 23,
V.C.S., provides in part, "The following meaning shall
be given to each of the following words, unless a dif-
ferent meaning is apparent from the context; 2. 'Person'
1 -
Hon. Robert S. Calvert, page 3 (S-89)
lncludea a corporatlonrn CorPun chI%lti v*
Live Oak Count tT Cl A 1957) ;
City of Taho 8g,‘:i6 ::w:‘c?162
, 166 s .w. 470, 472
There being no Indication that the Legislature
intended a more restrictive meaning It follows that a
county would be Included In the foregoing phrase author-
izing assignments “to any person”, It is our opln,lon
that if a valid claim for witness fees in a felony case,
prop,erly assigned to Jeff Davis County, is presented
within twelve monthe from the date same became due, It
would be legal to Issue a warrant to said county for
such fees.
Your seoond question Is, ‘Would It be legal
for the Department to Issue a warrant for wltness~ fees
to any of the officers named In Article 380, P.C., In
if;:“,;;$es when said officer8 have purchased witness fee
Article 380, Vernon’s Penal Code, reads as
follows:
“Any county judge, clerk or deputy clerk
of any district or county court, sheriff, or
his deputy, justice of the peace or constable,
who shall purchase or otherwise acquire from
the party Interested any fee or fees coming
to any witness In any proceeding whatever,
either before the district or county court,
or the court of any justice of the peace,
or before any coroner’8 Inquest, shall b$
fined not exceeding one hundred dollars.
The atatute involved Is very inclusive and
denounces those designated officers who “purchase or
otherwise aoquire from the party interested” any such
witness fees, and such purchase would bye Illegal and
void. Texas Anchor Fence Co. y. City of ~SanAntonio,,
71 S.W. 301 (T Clv.App, 1902). This would include ao-
quisltlon In aiG*manner other than by lnheritanoe or
-. /
Hon. Robert S. Calvert, page 4 (S-89)
operation of law. Of course, this would Aot apply to .a
sheriff or con&able advancfng funds to a witness in con-
formity with Article 477, Vernon's Code of Criminal
Procedure. Sparks v. State, 42 Tex. Crim. 374, 60 S.W.
246 (1900).
It follows therefore that the Comptroller would
not 'be authorized to issue warrant,s to the officera named
In Article 380, V.P.C., In Instances when such officers
have purchased wltneas fee bills.
SUMMARY
The Comptroller is authorized to ls-
sue a warrant to a county to pay a witness
certificate which has been properly assigned
to such county. Article 1036, V.C.C.P.
The Comptroller is not authorized to
issue a warrant for witness fees to any of
the officers named In Article 380, Vernon's
Penal Code, when such officers have Pur-
chased witness fee bills.
8' Yours very truly,
APPROVED: 'JOHNBEN SHEPPERD
Attorney General
J. C. Davis, Jr.
County Affairs,,Dlvislon
Willis E. Gresham BY
Reviewer.
Assistant
Robert S. Trottl
First Assistant