             ,                 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
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