Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Roll.2. I-Lalal
Dl.strlotAttarmy
aiohltaFalls,Teraa
har SIT1 Attention 02 ?&. c. C.
CplRlon No. o-
Hon. 2. D. Allen, Page 2
reeldenoe, in obedience to aubpo4nas leaued
under the provisions of law their actual
traveling 8sepllBoB,not exaa0uillgfour oenta
per mile, going to and reQurnlng rmaitha
court of grsnd jury, by the nearest ?raotlcal
conveyance, and two dollars per day for each
day they may nsoessarlly be absent from home
;:~&awlt~ess, to be paid as now pmvlded by
;....
Seation 3 of the above mentioned artlole pro-
vides that;
T3erore the alose oT eaoh term of Dlrrtrlot
COW%, the witness shall uako an affidavit stat-
ing the number of miles he will have traveled
going to mdreturningfmm the oourt, by the
neareot praetioal oonveyanoe, and tbe number
of daya he will have bee9 neoesearlly absent
In going to and returning frm the plaoe of
trial; which at?ldavlt uhall bu filed with the
papwm OS the oaB8. X0 witigms &all reaelve
pay for his aervioes 86 a witness la more
than ono aaee at any one terraof the eourt.
Fees shall not be allowed to aore than two
titneasee to the same faot, unless the judge
before whaa the oausa is tried shall, after
suoh ause has been trie& eontimed, or other-
wlee disposed of, oertliy that such witnesses
were necessnry In the oauae...."
It ie well eattled$hat no publla offlclal Is
entitled to reaelve end ret&n any l'eeeor aonrpensatlon
unless there Is a pzwvlelon made by the Legislattq &v-
lng the aeme to hlra. See the 08688 of U. C. Calla vm.
City of Rockdale, 246 ~ 654; Duolos YB. %rris ~Cotity,
298 Syp417 and authoritlea &ted therein. Alon(l?;@esame
line, the courte have held that the Legislature tiy pro-
vide for the allm?anoo of expenses incurred by WI offQH3r
In a~dltlcn to the oar,peu6atlonftied by ktW* ?%l'l"@~Vf8.
Ping, 14 S.W. 2nd 786. ml&&e S8Q7, Vernon’s Civil Statutes
and euthorltlerroltsd thereunder, pertaining to the filing
of expense aaoounts of various offiolala.
In the 0888 of.Xay %!a*State, 202 S.W. 189, the
question was whether a salaried polieemn was entitled to
Hon. 2. D. Allen, Page 3
hia Per diea under the old Article Il37b, Code of Grimin-
al Procedure (now repealed). The court, In tbls case,
after holding this article applicable only to felony
Cases and not the oase under consideration, which was a
misdemeanor, used the following language:
"There being no difference with reference
to mledemeanor cases as to the charaoter of
witnesses, whether officers or not, the ofri-
Cer would come nbthin the general category, as
we understand the law, as witness. liisoffi-
cial character, so far as that proposition 1s
cncermd, would make no dltferenoe...."
We qU.?te from 5ien::t.e
Bill No. 427, Acts of the
46th Legislature, as follows:
"No traveling expenses shall be claimed,
allowed, or paid unless incurred while travel-
ing on official buslllessof the State. Any
state offioial or employee entitled to trav&
lng expenses out of state epproprlations herein
made, who Is legally or orrloially required
to be present at the trial of any state case,
shall not olaim t:aveliqg expenses from the
state and also.from the court, wherein said
case is pending. If, by oversight, duplloate
claims are filed for seid traveling expenses
and collected then said offloers or employees
shall reimburse and refund to the state treasurer
in an amount equal to ths respective amount
col'ected under suoh witness fee end mileage
cla~&ed.*
1
Under the aase of Lay vs. State, supra, it seems
that the official aharaater of the witness mekes no diffe:--
ence as to the per diem, where the statutes do not specifi-
o~LLY draw a line between officers as witnesses and ordinary
witnesses. AitioIe IO36, Code of Criminal Frogedure, supra,
the present statute providing fees and milegge for out of
county witnesses -does not make this distinction. St has
long been the departmental construction of the COmPtr'oller~s
office tbt State Hi&way Fatrolrm8nare entitled to mileage
aM the 32.00 per diem as out-of-county witnesses In a felony
case In the court and before the grand jury iwestigatiog
a felony. Doweve, such highway patrolmsn receiving mileage
Hon. Z. D. kllen, Fage 4
fees and Zk.00 pd'rdiem fraa the ocurt are not entitled
to oolleot the mileage feea e& the $&CO per diem and
also the treoeling expenses ollimeb by the generr;lappro-
priatton bill. It the per dlerz6nd niletjgeunder Rrtlala
1036 findthe traveling expenses es clkwed by tha q``eral
eppro``'iotitinbill ere eclleoted, then suoh highway patrol-
men would be required to reimburse and refund to the Stnte
Trteeurer en fmount squel to the resyeotive amuat ccl-
lncted es such witness tee and pilleageihder Artiole 1036,
suprsl;thet la, Highway Patrolmen when subpoenaed as owt-
of-ocunty wltnaoa before the court in e relony ease or be-
fore the cqrand jury lnvesti~t.lng 6 feleny cane oennot
alaim bcth the loileagetses and pV-rdle~ es allowed by
Article 1036, qupra, and olsoths tPcjvelfnge.xpeneseal-
lowed by the @enoral dpproptiaticn Bill. "n'e believe the
Comptroller has oorreotly oonatrued the law.
We want te thank you Tar the able briar eub-
nltted with your inquiry whiah has been very helpful in
answering your guestions.
Truatinffthc:tthe foregoing fully answers your
inquiry, we remain
Yours very truly
ATT- tlBXE-Lil
OF ?EX!!S
lirdellW%lliams
Aselstant