                   THE    ATTORNEW           GENERAL
                              OF-XAS

CEZAWPORD   c. MARTlN
                           AUSTIN.'~EXAB    787~
 AT-rORNEYOENBRAI.
                                  May 19, 1971




     Hon. Herbert Middleton                Opinion No. M-863
     County Auditor
     Taylor County                         Re:   Advance of   county funds to a
     Taylor County Courthouse                    subpoenaed   out-of-State wit-
     Abilene, Texas                              ness while   he Is waiting to
                                                 be paid by   the State.
     Dear Mr. Mlddletonz
               Your request for an opinion on the above subject matter
     asks the following question:
                 "Can the County lenallv advance countv
            funds directly or lndlr&tly to a subpoenaed
            witness while he is waiting to be paid by the
            State?"
               The witness Involved In your request is an out-of-State
     material witness in a felony case.

         __^_ Article 24.28, Vernon's Code of Crfmfnal Procedure, is
     tne UnlSorm Act to Secure Attendance of Witnesses from without the
     State. Section 4 thereof provides in part:
                 "If the witness fs summoned to attend and
            testify fn this State he shall be tendered the
            sum of ten cents a mfle for each mile by the
            ordinary traveled route to and from the court
            where the prosecution is pending and ffve dollars
            for each day that he is required to travel and
            attend as a witness. A witness who has appeared
            fn accordance with the provisions of the summons
            shall not be required to remain withfn this State
            a longer perfod of time than the period mentioned
            in the certificate, unless otherwise ordered by
            the court, If such witness, after coming fnto
            this State, fails without good cause to attend and
            testify as dfrected in the summons, he shall be
            punished in the manner provided for the punish-
            ment of any witness who disobeys a summons issued
            from a court of record in this State."

                                  -4188-
Hon. Herbert Middleton, page 2                 (M-863)


It should be noted that no provision is made in this Article as
to who should pay out-of-state witnesses.
          Article 35.27, Texas Code of Criminal Rrocedure, deals
with out-of-county witnesses, and Section 1 thereof explicitly
provides that such out-of-county witnesses shall be paid by the
State. No mention Is made therein of any payment or advance by a
county to such witnesses.
          In Attorney General's Opinion No. C-720 (1966), this
office held that the method of payment for out-of-State witnesses,
pursuant to Article 24.28, supra, was to be the same as thatfor
payment of other out-of-county witnesses, pursuant to Article
35.27, supra; In essence, that Opinion held that out-of-State
witnesses were to be paid by the State.
          There Is no statutory authorization in either of the
two foregoing Articles for a county's paying or advancing.funds
to out-of-State or other out-of-county witnesses.
          It is a well-established rule of law that a county
commissioners court   is one of limited jurisdiction, and that such
court has only such powers as are conferred upon It by the Constl-
tution or statutes of this state, Section 18, Article V, Constitu-
tion of Texas; Article 2351, Vernon's Civil Statutes; Bland v. Orr,
90
_. Tex.
   -----492. 19 -_-.
         __, __  S.W.- _
                       558
                         - (18971:
                            --_, . Mills v. Lamoasas Countv. 90 Tex.
                                   ..~~~~~
603, 40 S.W. 403 (18971; Anderson v. Wood -137&x.     201 "152 S.W.2d
1084 (1941);                  hlln, 147 Tex: 169, 214 S.Wr2d 451 (1948)
Starr County                  S.W.2d 179 (Tex.Civ.ADD. 1956, no wrtt);
Fill V. Sterrett, 252 S.w.2~ I j66 (~&,~iv.App. 19529 error ref. n.r.e
and Von Rosenberg V. Lovett, 173 S.W. 508 (Tex.Cl> w.App. 1915, error r
Consequently, a county comnilssloners courtcan have no powers by
necessary imDllcation-where there Is no power expressly-conferred upon
It to do some act from which a power can be implied.
          We reaffirm the holding of Attorney General's Opinion No.
C-720, supra, and hold that there is no statutory authorization for
a county's paying, or advancing, witness fees to an out-of-State
witness who is waiting to be paid by the State.
          Since receiving your request , we have conferred with the
office of the State Comptroller of Public Accounts; that office has
informed us that, at the present time, there are no funds available
with which to pay fees for out-of-State witnesses.
          While it is true that the payment of fees to out-of-State
witnesses Is a legal obligation of the State of Texas, we are also

                           -4189-
Hon. Herbert Middleton, page 3             (M-863)



of the'opinion that the amount of funds appropriated for such
purposes is within the discretion of the Legislature, and that
such amount is a matter for legislative determination. Attorney
General's Opinions No.WW-113 (1957) and No, V-1391 (1952).
          We are further of the opinion that the question of ad-
vancing fees to out-of-State witnesses, prior to the performance
of their duties as witnesses, is one to be determined by the Leg-
islature.
          Your question Is, therefore, answered In the negative.
                     SUMMARY
          Article 24.28, Texas Code of Criminal Pro-        .:
     cedure, contains no authorization permitting or
     directing the advancing of county funds to a sub-
     poenaed out-of-State witness while such witness
     is waiting to be paid by the State. Accordingly,
     counties are not permitted to make such advances
     to such witnesses. Such witnesses are to receive
     compensation solely from




                                    General of Texas

Prepared by Austin C, Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Pat Bailey
Houghton Brownlee
Joseph Sharpley
Arthur Sandlin




                           -4190-
                                                .   -




Hon. Herbert   Middleton, page 4      (M-863)



MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WHITE
First Assistant




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