Untitled Texas Attorney General Opinion ( 1948 )

Au``N.TExAB
PRICE lDANxEL
r-a- OEnEW
, April 23, 1948
Hon. Geo. H. Sheppard Opinion No. V-550
Comptroller of Public Accounts
Austin, Texas Re: Legality of expendi-
tures from the con-
tingent approprla-.
tion of the Board of
Medical Examiners to
defray traveling ex-
pense of vitnesses on
prosecutions for vlo-
lations of the Medl-
cal Practices Act.
Dear Sir:
Your request for an opinion from this office
on the above subject matter is, in part, as follows:
"The question has arisen in this de-
partmentas to whether the Texas State Board
~: of Medical Examiners can use its Contingent
Expenses Appropriation for the payment of
bringing witnesses either before the county
or district court from within or without the
i State for the purpose of enforcing the law
under the Medical Practices Act.
"If you should answer the foregoing
question in the affirmative, then would
there be any limitation as to the amount
the Texas State Board of Medical Examin-
ers could expend in bringing such witness-
es before the court; that is, would the
amount paid be left to the discretion of
the Texas State Board of Medical Examiners
or would-the amount be covered by Article
1036, C.C.P.?"
Article III, Section 44 of the Texas Constitu-
tion provides that no appropriation of money to any in-
dividual shall be made when the same shall not have been
provided for by pre-existing law.
P c
Hon. Geo. II.Sheppard, Page 2 (v-550)
Article XVI, Seation 31 of the Texas Constltu-
tion provides:
"The Legislature may pass laws pre-
scribing the qualifications of practhon-
ers of medicine in this State, and tq
punish persons for mal-practice, . . .n
Article 742, V. P. C., provides:
'Any person practicing medicine In
this State in violation of the preceding
Articles of this Chapter shall be guilty
of a misdemeanor, and upon conviction
shall be punished b a fine of not less
than Fifty Dollars $O), nor more than
Five Hundred Dollars $5001, and by im-
prisonment in the county jail for not
'morethan thirty (30) days. Each daysof
such violation shall be a separate of-
fense."
Section 3 of .Artlcle449&i, V. C. S., provides,
in part, 88 fOllOWB:~.
,~
"A11 annual registration fees col-
.lected by the Texas State Board of Medl-
cal Examiners under thls Act shall be
placed in the State Treasury, to the
credit of a special fund to be known 8s
the *Medical Registration Fund,' and all
of the current revenues to be derived
I- and placed to the credit of said fund
during the two years ending August 31,
1933, are hereby appropriated and shall
be used by the Texas State Board of Medi-
cal Examiners, and under Its Urectlon,
in the enforcement of the laws of this
State prohibiting the unlawful practlae
of medicine. and in the &iSBetittOn
of informs``on to prevent the violation
of such laws and to aid in the vrosecu-
tlon of those who violate such laws."
IEmphasis added)
Item lo of the Appropriation for the State
Board of Medical Examiners of the General APPrO rl.atlon
Act of 1947, 5otr Legislature, S.B. 391, page 8 8 6, Pro-
vides:
. n
Ron. Geo. G. Sheppard, page. 3 (v-550)
"State Board of Medical Examiners
(Out of Medical Registration Fund)
For the Years Ending
kg. 31 Aug. 31
1948 1949
"lO.Contlngent Ex-
penses for En-
forcement
.Purposes ..." 500.00 500.00”
Since the State Board of Medical Eixamlnersis
authorized to "aid in the prosecution of those who vio-
late" laws prohibiting the unlawful practice of medicine,.
it is our opinion tbat the Board may bring witnesses to
the trial courts in prosecutions for violations of Redi-
cal Practices Act and pay the witnesses their traveling
expense out of Item 10, above quoted. Item 10 WaB appro-
priated for the purpose of furnishing the State Board of
Medical Examiners money to carry out their duties of
aiding in the prosecutions of violations of the Medical
Practices Act, and certainly the bringing in of witness-.
es is an aid to such prosecutions.
Article 1036, V. C. C. P., regulates the pay-
ment by the State of traveling expense of witnesses in
felony cases. Bowever, we know of no comparable stat-
ute with reference to witnesses in misdemeanor cases.
Therefore, you are advised'that It is wLthin the d&s-
cretlon of the Board of Medical Examiners as to the
amount to be oaid to witnesses in such cases, provided,
.of course, the sum cannot exceed the amount appropriat-
ed.
Item 10 of the General Appropriation
of the 50th Legislature for the Texas
State Board of Medical ExamLners, entitled
"Contfngent Expense for Enforcement Pur-
poses may be used to pay the traveling
expenses of wltnesse~sin CaBeB involving
Hon. Geo. G. Sheppard, page 4 (V-550)
violations of the Medical Practices Act.
S. B. 391, Acts 50th Leg. 1947, p. 886.
Yours very truly
ATTORNEY GENERAL OF TEXAS
JR:mw
ATTORNEX GENBRAIi'
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