Untitled Texas Attorney General Opinion ( 1957 )

THEA~ORNEY GENERAL OFTEXAS Honorable Jo Ed Winfree Opinion No. WW-288 Chairman, Committee on Criminal Jurisprudence Re: Constitutionality of a Rouse of Representatives provision to be added to Capitol Station House Bill 5 recently Austin, Texas submitted to the first called session of the 55th Legislature. Whether witnesses who appeared before the Commission set up by the provisions of said Bill at the invita- tion of the Commission would be entitled to reim- bursement for actual Bear Colonel Winfree: travel expenses and costs. Your request for an opinion on the proposed amend- ment to House Bill 5 of the First Called Session of the 55th Legislature reads as follows: "As Chairman of the House of Representatives Committee on Criminal Jurisprudence, I wish to request an opinion on the following proposition: "House Bill No. 5, Section No. '7,as sub- mitted in the First Called Session of the 55th Texas Legislature I.eadsas follows: "'Section 7: Any hearings conducted by the Commission shall be public. The Commission shall have the power of subpoena, subpoena duces tecum, and all other process to the extent of the Jurisdiction of this State, and may provide by rule or order for the issuance of such process. Officers of the Department of Public Safety, or any Sheriff or Constable of any County in Texas may serve as such process and make return. Honorable Joe Ed Winfree, Page 2 (w-w-288) Such costs and the travel and per diem expenses of witnesses, at the same rate payable for appearance before a Committee of the Legislature, shall be paid by the State out of the appropria- tions made to the Commission.' "The author of this bill states that the purpose of this section is to provide reimburse- ment of witnesses appearing before the Commission. "The Sub-committee has suggested that language such as the following be substituted for the subpoena provision. 'IAny witness invited to aopear before the Commission by written request from the Chairman be reimbursed for his actual travel expenses and costs, Such costs and the travel and per diem expenses of witnesses, at the same rate payable for appearance before a Committee of the Legislature, shall be paid by the State out of the appropria- tions made to the Commission.' "Please advise whether or not the suggested changes are constitutional, and whether under such a provision any witness would be entitled to reimbursement for actual travel expenses and costs." Under the provisions of Sectio::7 of the House Bill No . 5, the Commission is authorized to subpoena individuals to appear before it and to pay their travel and per diem Ed- penses of such witnesses. Under the amendment suggested by the Sub-committee, no witness would be compelled to qnpedr before the Commission. Under such circumstances, any vitness appearing before the Commission would be appearing without legal obligation. Se&Ion 51 of Article III of the Constitution of Texas prohibits the granting of public moneys to any individual. In view of the provisions of Section 51 of Article III, payment of traveling expenses of any witness appearing before the Com- mission when such witness is not under any legal obligation to make such appearance, would constitute a gratuity In violation of Section 51 of Article III, Constitution of Texas. Honorable Jo Ed Winfree, Page'3 (``-288) Therefore, you are advised that the suggested changes in Section'7 of House Bill No. 5 would be unconstitutional and invalid. SUMMARY A suggested change in the provisions of Section 7 of House Bill 5 of the First Called Session of the 55th Legislature, whereby witnesses appearing before the Law Enforcement Study Commission, crea- ted by the Act, would receive their traveling expenses is invalid as consti- tuting a gratuity in violation of the provisions of Section 51 of Article III of the Constitution of Texas, since such witnesses would be under no legal obligation to appear before the Commis- sion. Very truly yours, WILL WILSON Attorney General of Texas JR:pf:jl APPROVED: OPINION COMMITTEE Geo. P. Blackburn, Chairman John H. Minton, Jr. B. H. Timmins, Jr. Wayland C. Rivers, Jr. J. C. Davis, Jr.