Untitled Texas Attorney General Opinion ( 1947 )

-
R-452
THEATTORNEY GENERAL
OF-TEXAS
June 10, 1947
Honorable George B, Sheppard
Comptroller of Public Accounts
Auatfn, Texas Opinion No, V-240
Re: Whether Comptroller should ls-
t3ue wwrant in payment of wlt-
ness cartlfloate under facts
stated
Dear Sir:
Your lktter requesting our oplnlon relative to the
above-captioned matter reads,, ln part, as follows:
“A subpoena was issued ouC OS the Crlmtnal
District Court of Bexar County, Texhs, in the
case of State of Texas vs. Rouard Baylor - 49202,
for Hr. Johnny Lott and ~8s dlreated and delivered
to the SWlSS of Tarrant County to be served on
HP. L&t. At the time the 3herlSS oS Taprent
County received the subpoena, &. Johnny Lott had
removed to Galveston, and the subpoena was not
served on hLm by the.SherlfS of Tarrant County.
However, upon being informed bg the Federa, Nar-
cotics Bureau that subpoena had been issued and
was outstanding, Mr. Johnny Lott, sating upon this
lnforrratlon,appeared before the CNmlnal Blstrlet
Court OS Bexar County at San Antonlo, and the sub-
poena was duly served on him there.
"The Clerk of thg Crlmlnal Dlstrlct Court of
San Antonio Issued a witness certlflcate to Hr.
Johnny Lott, Including mileage and per,diem Prom
Galvestcm County to San Antonio and return.
"Ii~thls department authorlaad %o Issue war-
rant in payment of the certlflcate?"
The relevant provls¶.onnof Artlsle 1036, C, C. P,,
as amended Acts 1941.,47th Mg.,, p. 688, Ch. 430, Sec. 1,
read a8 Sollows:
"(1) Any vltness who may &we born subpoenaed,
or shall have been recognized OF 8tfached and gLven
bond for .hlsappearance before any Court, OF before
Honorable George H. Sheppard - Page 2 V-240
any grand jury, out of the county of'hls resi-
dence, to testify in a felony case regardless
of disposition of said case, and who appears in
compliance with the obligations of such recog-
nizance or bond, shall'be allowed Three (3) Cents
per mile going to and returning from the Court
or grand jury, by the nearest practical convey-
ante, and Two Dollars ($2) 'perday for-each day
he may necessarilg.be a.bsentfrom home as a wit-
ness in such case; . . . . .
'Witnesses shall receLve from the State, for
attendance upon District Courts and grand juries
in counties other than that of their residence
in obedience to subpoenas issued under the pro-
visions of law Three (3) Cents per mile, going
to and returning from the Court or grand jury;
by the nearest practical conveyance, and Two Dol-
lars ($2) per day for each day they may necessarily
be absent from home as a witness to be paid as
now provided by law; . . . '. ,
"(2) Witness fees shall be allowed only to I
such witnesses as may have been summoned on the
sworn written application of the State's attor-
ney or the defendant or his attorney as provlded
In Article 463, Code of Criminal Procedure, which
sworn application must be made at the.time of the
procuring of the subpoena, attachment for, or
recognizance of, the witness. . . . ; ;
"(4) The DLstrlct or Criminal District Judge,
when any such claim is presented to him, shall
examine the same carefully, and Inquire lnto~-the
correctness thereof, and approve same, in whole
or in part, or disapprove the entire claim, as
the facts and law may require; and such approval
shall be conditioned only~upon and subject to
the approval of the State Comptr~oller,as provided
for in Article lp35 of the Code of Criminal Pro-
cedure;.. . . . _
"(5) The Comptroller, upon receipt of such
claim and the cei+Tfied'list provided for in the
foregoing section, shall.carefully examine the'
same, and if he deems said claim correct; and in
compliance with and authorlsed by law In every
respect, draw'hls warrant on the State Treasury
for the amount due in favor of the witness en-
titled'to same.i
); .'; '::."
Honorable George H. Sheppard - Page 3 V-240
Article 464, C. C. P. provid~esas follows:'
"A subpoena Is served by reading the same in
the hearing of the witness. The officer having
the subpoena shall make due return thereof, show-
ing the time and manner of service, if served,
and, if not served, he shall show in hi8 return
the cause of his failure to serve it; and, if the
wftness could not be found, he shall state the
diligence he has used to fina him, and what in-
formation he has as to the whereabouts of the'
witness."
In construing the above Article 464, the Court in
Ex Parte Terrell, 95 S.W. 537, held that a subpoena cannot
be served on a witness by reading It over the telephone. In
this case the witness did not appear and was fined for his
disobedience. The Court ordered the witness discharged and
held in effect that until the witness was duly served as
provided by Art. 464, C. C.P., he was under no duty to ap-
pear as a witness.
Article 1080, C. C. P., reads, as follows:
"No fees shall be allowed to a person a8
witness fees unless such person has been sub-
poena&, attache6 or recognized as a witness in
the case.'
See also Stewart v. State, 44 S. V. 505.
Based upon the above quoted statutes, asconstrued by
the courts, it Is our opinion that the Comptroller is not au-
thorized to issue a warrant in payment of the witness certi-
ficate, which includes mileage and per diem from Galveston
to San Antonio. However. if a new certificate is secured
which only includes the per diem from the time the subpoena
was actually served on the witness and his mileage from
San Antonio to his home in Galveston, then you would be
authorized to issue warrant in payment thereof.
SUMMARY
The Comptroller Is not authorized to issue
a warrant to pay a witness certificate which in-
cluded per diem and mileage traveled prior to the
tlme a subpoena was served upon the witness. Ar-
ticles 1036 and 1080, C. C. P.
Honorable George H. Sheppard - Page 4 v-240
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/W. V. Geppert
W. V. Geppert
Assistant
WVG/lh/wc
APPROVED:
s/Price Daniel
ATTORNEY GENERAL