Untitled Texas Attorney General Opinion ( 1946 )

, AUS-irlN 11. TEXAS
Hon. Homer Qarrlson, Jr., Opinion lo. o-7216
Dlreator Ret When a menber of the Depart-
T(lxas ~Dspartment ,of ‘Public ment of Public 8afrty has been
Safety eubpoeqaed to ap ‘ear aa a wit-
Camp,Mabry neaa and his ter ? lmony would be
,kastin, Texas of no material value In the snc-
casaful prosecution of the ease,
,would another member of the de-
partment, f’or whom a subpoena had
not been lamed be entltled to
per diem and miirage fee8 under
A rtiole 1036 C.CIPI, if he ap-
peared a8 a whqeee and testified
at the trial to faots that were
Dear Sir: material.
Your rebent request for an opialon on the questloa aa
restated above has been reoelved and carefully ~owialdered by
this department.
Article 1036, Code of Criminal Rooedure or Texas pro-
vides, and we quote the applicable portions of the Btatute as
f ollowa I
“(1) Any wltneee who may have been rubpoenaed,
or ehall have been reoognlzied or attaohed and given
bon& ror hia appearance bel’ore any Court, or before
any grand jury, out of the oounty or hir rrridenoe,
to teatlfy in a felony oase regardlese of dlrporl-
tion of said ease, and who appears in oomplianoe
with the obllgatione of such reoognlaanor or bond,
shall be allowed~ Three (3) Cent8 per mile going to
and returnlnng from the Court o&gran; dur{&ycth;
nearest praotloal oonveyanoe,
per day ror eaoh day he may neoeraarily be absent
f’rom home am a wltnera In euoh oarel
‘1 , l l .
tlWitneeeer ahall reoelve fron the Btate, for
attendanoe upon Dlrtriot Courtr and grand juri#r
in countlea other than that of their rerldenae in
obedimoe to rubpoenar irnued under the provlrioar
-
Hon. Homer Garrison, Jr., page 2 (0-72163
of law Three (3) Cents per mile, going to and re-
turning from the Court or grand jury, by the near-
est practical conveyance, and Two Dollars ($2) per
day for each day they may necessarily be absent from
home as a witness to be paid as now provided by law;
and the foreman of the grand jury, or the District
Clerk, shall issue such witness certificates there-
for after deducting therefrom the amounts advanced
by ihe officers serving said subpoenas, as shown by
the returns on said subpoenas; which certificates
shall be approved by the District Judge and re-
corded by the Clerk in a well-bound boo& kept for
that purpose; . . .U
“(2) Witness Sees shall be allowed only to such
witnesses as may have been summoned on the Sworn wrlt-
ten application of the State’s attorney or the defend-
ant or his attorney as provided in Article 463, Code
of Criminal Procedure, which sworn application must be
made at the time of the procuring of the subpoena at-
tachment for, or recognizance of, the witness. The
Judge to whom an application for attachment is made
may, in his discretion, grant or refuse such applica-
tion, when presented in termtime.
“(3) The witness shall make an affidavit stating
the number of miles he will have traveled going to
and returning from the Court by the nearest practical
conveyance, and the number oh days he will have been
necessarily absent in going to and returning from the
place of trial j which affidavit shall be a part of ~the
certificate issued by the clerk, copy of which is to
be kept in a well-bound book. . . .
‘1. . . .
“(4) The District or Criminal District Judge,
when any such claim is presented to him, shall examine
the same carefully, and inquire into the correctness
thereof, and approve same, in whole or in part, OF dis-
approve the entire claim, as the facts and law may re-
quire; and such approval shall be conditioned only
upon and subject to the approval of the State Comptrol-
ler, as provided for in Article 1035 of the Code of
Criminal Procedure; and said claim with the action of
the Judge thereon shall be entered on the Minutes of
said Court; and upon the approval of said claim by the
Judge, the Clerk shall make a certified list of said
claim, upon forms prescribed by the Comptroller, furn-
ishing such information as required by him, and send the
same to the Comptroller at such times as he may require,
Hon. Homer Garrison, Jr., page 3 (O-7216)
for which service the Clerk shall be entitled ,to
a fee of Fifty (50) Cents whiah shall be paid by
the witness. .Th.e service mentioned in the fore-
going sentence shall include the issuance of cer-
tificate, swearing the witness to claim for wit-
ness Sees, and reporting to Comptroller, and witness
shall not be required to pay any additional amount
for the- completion of the’ certificate.
“(5) The Comptroller, upon receipt 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 bv law in everv resoe& draw his warrant
on the State Treasury for the amodt due in favor of
the witness entitled to same, or to any person such
certificate has been assigned by such witness, but
no warrant shall issue to any assignee of such wit-
ness’s claim unless the assignment is made under oath
and acknowledged before’ some person duly authorized
to administer oaths, certified to by the officer and
under seal. . . .ll ~(Underscoring added)
Article 463, Code of Criminal Procedure of Texas
reads as Sollows:
“Before the clerk or his deputy shall be required
or permitted to issue a subpoena in any felony case
pending in any District or Criminal District Court of
this State of which he is clerk or deputy, the defend-
ant or his ‘attorney or the State’s attorney shall make
written, sworn application to such clerk for each wit-
ness desired. Such application shall state the name
of each witness desired, the location and vocation, if
known, and that the testimony of said witness is mater-
ial to the State or to the defense. As far as is prac-
tical such clerk shall include in one subpoena the
names of all witnesses for the State and for defendant,
and such process shall show that the witnesses are SW
moned for the State or for the defendant. When a wit-
ness has been served with a subpoena, attached or plac-
ed under recognizance at the instance of either party
in a particular case, such execution of process shall
inure to the benefit of the opposite party in such case
in the event such opposite party desires to use such
witness on the trial of the case, provided that when a
witness has once been served with a subpoena, no Sur-
ther .subpoena shall be issued for said witness.11
Hon. Homer Garrisons. Jr ., page 4 (O-7216)
In construing a statute or an act of the Legislature,
the principle guide should be to determine the intention of the
Le islature in ,passing the act. By the language used in Section
(2f of Article 1036, C. C . P ., which is definite and clear, the
Legislature intended that only such persons appearing in court as
witnesses, for vhom subpoenas were issued by the Clerk of the
court, upon a sworn application of the State’s Attorney, the de-
fendant, or the defendant16 attorney, be allowea the Sees men-
tioned in Section (1) .oS the Article. Section (4) of the Article
imposes a duty upon the District Judge, using the words of the
statute, II. . . to examine the claim carefully and to inquire
into the correctness thereof, . . .I’ and approve or disapprove
the claim as the facts and law may require. Under the facts as
outlined in your request, it would be the duty of the District
Judge to refuse to approve a claim for such a witness for whom
; Eugpoena had not been issued in compliance with Article 463,
. . .
Section (43, of Article 1036 C.C.P., provides that
the District Judge’s approval is conditioned upon and subject to
the approval of the State Comptroller. Under the provisions of
Section 5, the Comptroller is charged with the duty of examinlng
such claims approved by District Judges to ascertain whether or
not the claims are correct and in compliance with and authorized
by law in every respect, before he draws a warrant on the State
Treasury in favor of the person claiming the Sees provided in
Section (1) of the Article.
You stated in your letter, that for a number of years
it has been the policy of the Comptroller to issue warrants in
payment of similar claims if the Clerk of the Court issued wit-
ness certificates and they were approved by the District Judge.
We have been unable to find any statute or rule of law, either
directly or by implication authorizing the Comptroller or the
District Judges at their d$scretion to waive or disregard the
grr;sions of Sections (21, (31, (4j and (5) of Article 1036,
. . ., in approving and paying such claims.
You are respectfully advised that it is the opinion of
this department that such a witness for whom a subpoena had not
been issued in compliance with Article 463, C.C.P., is not en-
titled to per diem and mileage Sees under the provisions of Arti-
cle 1036, Code of Criminal Procedure of Texas.
We wish to point out that State employees cannot claim
traveling expenses from the State and also witness fees and mil-
eage from the Court in State cases. See Subdivision 11(a), Sec-
“,,‘o;e;isof the Departmental Appropriation Bill, 49th Legislature
1945 (General and Special Laws, page 943) which reads
as foll&s:
Hon. Homer Garrison, Jr., page 5 (0-7216)
"No traveling expenses shall be claimed allowed,
or paid unless incurred while traveling on Szate busi-
ness. Any State oSSicial or employee entitled to travel-
ing expenses out of State appropriations herein made, who
is legally or oSSicially required to be present at the
trial of any State case, shall not claim traveling ex-
penses from the State and also from the ~Court wherein said
case is pending. If by oversight, duplicate claims are
filed for said traveling expenses and collected, then said
officers or employees shall reimburse and refund to the
State Treasurer an amount equal to the respective amount
collected under such witness Sees and mileage claizkN
Trusting that the above satisfactorily answers your in-
quiry, we are
Yours very truly
ATTOFUVRY
GENEBALOF TEXAS
By /a/ Louis W. Woosley
Louis W. Woosley, Assistant
APPROVED APR 27, 1946
/s/ Carlos C. Ashley
FIRST ASSISTANTATTORNEYGENERAL
APPROVED:OPINION COMMITTEE
BY: BWB, CBAIRMAN
LWb?r
zd:wb