                                 Au~~N.TExAB
PRICE   lDANxEL
r-a-     OEnEW

                          ,        April 23, 1948

         Hon. Geo. H. Sheppard          Opinion No. V-550
         Comptroller of Public Accounts
         Austin, Texas                  Re: Legality of expendi-
                                            tures from the con-
                                            tingent approprla-.
                                            tion of the Board of
                                            Medical Examiners to
                                            defray traveling ex-
                                            pense of vitnesses on
                                            prosecutions for vlo-
                                            lations of the Medl-
                                            cal Practices Act.
          Dear Sir:
                    Your request for an opinion from this office
          on the above subject matter is, in part, as follows:
                     "The question has arisen in this de-
                partmentas to whether the Texas State Board
             ~: of Medical Examiners can use its Contingent
                Expenses Appropriation for the payment of
                bringing witnesses either before the county
                or district court from within or without the
           i    State for the purpose of enforcing the law
                under the Medical Practices Act.
                       "If you should answer the foregoing
                  question in the affirmative, then would
                  there be any limitation as to the amount
                  the Texas State Board of Medical Examin-
                  ers could expend in bringing such witness-
                  es before the court; that is, would the
                  amount paid be left to the discretion of
                  the Texas State Board of Medical Examiners
                  or would-the amount be covered by Article
                  1036, C.C.P.?"
                    Article III, Section 44 of the Texas Constitu-
          tion provides that no appropriation of money to any in-
          dividual shall be made when the same shall not have been
          provided for by pre-existing law.
P   c




        Hon. Geo. II.Sheppard, Page 2 (v-550)


                  Article XVI, Seation 31 of the Texas Constltu-
        tion provides:
                  "The Legislature may pass laws pre-
             scribing the qualifications of practhon-
             ers of medicine in this State, and tq
             punish persons for mal-practice, . . .n
                  Article 742, V. P. C., provides:
                 'Any person practicing medicine In
            this State in violation of the preceding
            Articles of this Chapter shall be guilty
            of a misdemeanor, and upon conviction
            shall be punished b a fine of not less
            than Fifty Dollars $O), nor more than
            Five Hundred Dollars $5001, and by im-
            prisonment in the county jail for not
            'morethan thirty (30) days. Each daysof
            such violation shall be a separate of-
            fense."
                  Section 3 of .Artlcle449&i, V. C. S., provides,
        in part, 88 fOllOWB:~.
                                   ,~
                  "A11 annual registration fees col-
            .lected by the Texas State Board of Medl-
             cal Examiners under thls Act shall be
             placed in the State Treasury, to the
             credit of a special fund to be known 8s
             the *Medical Registration Fund,' and all
             of the current revenues to be derived
         I- and placed to the credit of said fund
             during the two years ending August 31,
             1933, are hereby appropriated and shall
             be used by the Texas State Board of Medi-
             cal Examiners, and under Its Urectlon,
             in the enforcement of the laws of this
             State prohibiting the unlawful practlae
             of medicine. and in the &iSBetittOn
             of informs~~on to prevent the violation
             of such laws and to aid in the vrosecu-
             tlon of those who violate such laws."
             IEmphasis added)
                  Item lo of the Appropriation for the State
        Board of Medical Examiners of the General APPrO rl.atlon
        Act of 1947, 5otr Legislature, S.B. 391, page 8 8 6, Pro-
        vides:
.   n




        Ron. Geo. G. Sheppard,   page.   3   (v-550)


             "State Board of Medical Examiners
             (Out of Medical Registration Fund)
                                   For the Years Ending
                                  kg.   31      Aug. 31
                                      1948         1949
             "lO.Contlngent Ex-
                 penses for En-
                 forcement
                .Purposes ..."           500.00        500.00”
                  Since the State Board of Medical Eixamlnersis
        authorized to "aid in the prosecution of those who vio-
        late" laws prohibiting the unlawful practice of medicine,.
        it is our opinion tbat the Board may bring witnesses to
        the trial courts in prosecutions for violations of Redi-
        cal Practices Act and pay the witnesses their traveling
        expense out of Item 10, above quoted. Item 10 WaB appro-
        priated for the purpose of furnishing the State Board of
        Medical Examiners money to carry out their duties of
        aiding in the prosecutions of violations of the Medical
        Practices Act, and certainly the bringing in of witness-.
        es is an aid to such prosecutions.
                   Article 1036, V. C. C. P., regulates the pay-
        ment by the State of traveling expense of witnesses in
         felony cases. Bowever, we know of no comparable stat-
        ute with reference to witnesses in misdemeanor cases.
         Therefore, you are advised'that It is wLthin the d&s-
         cretlon of the Board of Medical Examiners as to the
         amount to be oaid to witnesses in such cases, provided,
        .of course, the sum cannot exceed the amount appropriat-
         ed.


                  Item 10 of the General Appropriation
             of the 50th Legislature for the Texas
             State Board of Medical ExamLners, entitled
             "Contfngent Expense for Enforcement Pur-
             poses may be used to pay the traveling
             expenses of wltnesse~sin CaBeB involving
Hon. Geo. G. Sheppard, page 4   (V-550)


     violations of the Medical Practices Act.
     S. B. 391, Acts 50th Leg. 1947, p. 886.
                            Yours very truly
                         ATTORNEY GENERAL OF TEXAS



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                         ATTORNEX GENBRAIi'




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