                  THE~ATTORNEY               GENERAL
                               OP    TEXAS

PRICE  DANIEL
ATTORNEYGENERAL

                                    August 24, 1948

        Hon. Alfred      M. Clyde            Opinion No. V-667
        District Attorney
        Fort Worth, Texas                    Re: The legality of the
                                                 payment of travel ex-
                                                 penses of witnesses
                                                 subpoenaed in a ae-
                                                 penaencg case.
         Dear Sir:
                  Reference is made to your recent request,
        vhlch reads, in part, as follows:
                       "We have several dependency cases
                  pending in the Civil Courts of Tarrant
                  County in which the Chief Probation Of-
                  ficer has filed an action In the name of
                  the State to declare the children neg-
                  lected and dependent children ana to
                  Puakethem wards of the Court in order
                  that they may be protected In accordance
                  with the statute8 of this State.
                       "In a recent case e e . in the 17th
                  District Court, Tarrant County, Texas, it
                  was necessary to subpoena a number of wlt-
                  nesses from counties surroundingTarrant
                  County 6 e , The.above mentioned cause
                  was held on July.29, 1948, ana at the com-
                  pletion of the hearing, the subpoena with
                  a request for traveling expenses vas pre-
                  sented to He. Levis D. Walli Jr,, District
                  Clerk of Tarrant County, Texas. Payment
                  vas refusdd on the basis that under the
                  lava of Texas there are no provisions for
                  paying the fe,es,ofwitnesses except,in
                  criminal casks. In oraer,to adequately
                  prove the allegationsmade In our petition
                  It was necessary that the above xiamed wit-
                  nesses appear.
                       "The Proseoutionaf our penalng cases
                  will depend largely upon the statements of
Hon. AlfpkaM. Clyde, page 2   (V-667)


    witnesses who must be Subpoemea     from aur-
    pounalnr:counties,but we are reluctant to
    issue such subpoenas unless there is some
    assurance that the witnesses   will be reim-
    bursed for their traveling expenses. I
    would appreciate an Immediate ruling in
    this matter”ln order that I may know how
    to proceed. (Emphasisaaaeaj
          Article 2338&l, Section 13, V. C. S., pro’
vld38, in part, as follows:
         "The Juage may conauct the hearing
    In an informal manner ana may adjourn the
    hearing from time to time. In the hear-
    ing of any case the general public may
    be excluded. All cases Involving chil-
    dren shall be heard separatelyana apart
    from the trial of cases against adults.
         "If 10 jury is demanded, the Judge
    shall proceed with the hearing. When the
    proceeding Is with a jury, the verdict
    ahall state whether the,juvenlleis a
    9&elinquentchild' within the meaning  of
    this Act, ma if the Judge or jury finds
    that the child is delinquent,OP otherwise
    vithin the provialens of this Act, the
    court may by order duly entered proceed
    as follows8
         "(1) place the child on probation OP
    under supervisionin his own home or in
    the cuetody~ofa relative or other fit
    person, upon such terms as the court shall
    determine;
         “(2) commit the child to a suitable
    public institutienor agency, er to a
    suitable private instltmtionoreagency
    authorized to care for children;OP to
    place them in suitable family homes or
    parental homes for an Indeterminateper-
    iod of t&me, not extendingbeyond the
    time the child shell reach the age of
    twenty-one (21) years;
          "(3) make such further dispositionas
     the court may deem to be HOP the best in-
Eon. Alfred        M+ Clyde,       page 3         (V-667)


     terest of the child,                  except     a8 herein
     othenriae          povidod.

           “Bo adjudloation     upon the status
     of sny child in the,juz4sdictlon       of the
     court shall operate to impose any of the
     civil  dlsabilitles    ordl.narll~ i osed ‘by
     aonvictlon,,   nor shall 113~ child"ge deem*
     ed a cridnal      by reason of suqh.adjubi-
     cation, tir shall such adjudioatlon        be
        eaed a oonviotion


           Section 21 of the sane ktlole   provides that
an appeal isay be taken by any par%yaggdeved to the
Court of Civil Appeals, and the case ry be carried to
the Supreme Court by wHt of error or upon certiiicate
as ln other civil  cat3es.
            -                                            \
 _~    --.
           That a juvenllr proceeding is not ccinilul
 .n nature is clear17 evidenced in the holdi=    of the
 :ourt L the o&se of %ndj v. Wilson, 142 Tex. 460,.179
 i.H.(M P 269, wherein the court statedf
           "tile Aot doer not umlePkks to OOD-
      vict and $&wish 8 ahlld $0~’ thi oolrmis-
      don     of    a    Grimor    s   e    Thr     0nlJ    ISSW   to
      be. drterdned       at the twirl is whether the
         juvenile is a ‘delinquent      child’ wlthln
         the mean-     of the Act.
        r       *
                      “it hre boa pepeatedlg held
        by oth&%W,           in oonstlruing acts siri- 1
         lar.to   the one under oonsideratlon,     that
         such statutes are not criminal in nature,-
 ‘-----and where their propose is for the.educa-
         tion and refopmatlon of the mlnor, an&the
         institution    to whiah,he,or   she ia 00&t-
         ted Is hot penal lr nature. the denial of
        ~the zighi of ‘a jury~ trial ‘is not 8 viola-
         tion~of the.Constltution      . . .
             "Ii the objects of the kt are to be
      aooomplished,    the pl”ooeedlngs’thoPounde~
      must necessarily    be olvil ir +ure,      and
      while ln sow respocte the orders, or the
      judgment of the court r~ Uve the char-
      acteristics   of a judgment In a crl.d~l
                                                        .   .   ,_




Hon. Alfred M. Clyde, page 4   (V-667)


     case, the customary rules of evidence in
     civil cases, developed through long ex-
     perience as essential in arriving at the
     truth wlt4freasonable certainty, must be
     followed.
          It is apparent from the foregoing that such
cases are civil in their nature. In fact, one of the
main purposes for which the above Act was passed was
to remove the stigma of crime from the juvenile in
such cases.
          After a careful investigation and search of
the statutes, we are unable to find any statute provid-
ing for or authorizing the payment of traveling expenses
of wltnesaes in such proceedings. Art. 2338-1, supra,
makes no provisions whereby such witnesses may be reim-
bursed for traveling expenses when brought before the
court in such hearings.
          Since such cases are civil in their nature,
and in the absence of any authority to compensate such
witnesses, it is our opinion that such witnesses may
not be reimbursed for traveling expenses. Although the
officers may encounter extreme difficulty in obtaining
witnesses in such proceedings, nevertheless the duty of
supplying such compensation rests exclusively with the
Legislature.
                       SUMMARY
          Witnesses subpoenaed in juvenile de-
     linquency cases may not be reimbursed for
     traveling expenses under presently existing
     statutes.
                                    Yours very truly,
APPROVED:       ,              ATTORNEY GENERAL OF TEXAS



                               BY
    RNRY GENERAL
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