             EA        OKNEY          ,GENERAL
                     OF     TEXAS



                      January 22, 19.52

Hon. Robert S.~ Calvert
Comptroller of Public Accounts
Austin, Texas
                    Opinion No* V-1391
                      Re:    Existence of any appropri-
                             ation to pay the mileage
                             and per diem of witnesses
                             from another state com-
                             pelled to attend a crimi-
Dear Sir:                    nal trial  in Texas.
      .
            Your request    for   the opinion   of this   of-
fice   is as follows:
               “This department has received a
       certificate     from Judge Gb C. Olsen,
       District     Judge of the 109th Judicial
       District     of Texas, issued under the
       provisions     of H.B. Noa 659, passed by
       the 52nd Legislature.        This certifi-
       cate orders this department to issue
       warrants to three witnesses residing
       in California      to tender each of them
       witness fees in advance of travel for
       mileage and per diem in amounts stat-
       ed in the certificate.        The certifi-
       cate states the witnesses are material
       and are wanted in Reeves County in the
       Case “State of Texas vs. John E. Welch’!,
       in which the charge is murder with
       malice aforethought.        . . .
              “This department requests an an-
       swer as to whether there is money ap-
       propriated   for this payment? In the
       event you find there is money appropri-
       ated, would the certificate     of the
       judge be sufficient    authority and con-
       stitute   a voucher for the issuance of
       a warrant in advance of travel?      In
       the event your answer is in the affirm-
       ative,   to whom would the warrants be
        Hon. Robert 5. Calvert,      page 2   (V-1391)


               issued and to whom would the warrants
               be delivered?  It has been the policy
               of this department not to pay until
               the service has been, performed.”
                   The applicable   provisions  of the Wniform
        Act to SeaWe the,Attendanar      of Witnesses from with-~
        out the State in Criminal Proceedings”       H.B. lfo. 659,
        Acts 52nd Leg*, 195l     ah. 441, p.~ 798; 1 rt. 486a, V.
        C, C. P.), ar8 a5 fo il ows:
                     %*c. 4.      If ,aperson in any state,
               which by It5 laws has made provision         for
               coming        persons wlthln its borders to
               attend and testify     .in criminal prosecu-
               tions    or grand jury lnvestlgations       corn- ’
               mm05b or about to commenae, ~,in this
               State, is a’material      witness in a pro&-
               cutlon pending in a court of record in
               this State, or in a grand jury ,lnvestiga-
               tion which has cmencrd         or is about to
,              commence a judge of such aourt may issue
               a certificate    under the seal of the court
    ’          stating these fact5 and specifying         the
               number of days the witness will be requir-
               ed.   Said certificate     may include a recom-
               mendation that the,witness       be taken into
               lmmediate~custody and delivered         to an of-
               ficer of this State to assure his attend-
               anaa in this State.       This certificate
               shall be presented to a udge bf a court :
               of record in the comty ,,I n which the wit-
               ness is found.
                     ‘IIf the witae58 18 summoned to attend
           .   and testify   in this State he shall be ten-
               dered the sum of Ten Cents (log) a mile for
               each mile by the ordinary traveled route to
               and from the court where the prosecution    is
               pending and Five Dollars ($5). fore each day
    t          that he is required to travel and attend as
               a witness.     . . ln
                   After the certificate     of the Texas court has
        been issued, It is then forwarded to any Judge ~bf a
        court of maorb in the county in which the witness is
        found and the proceedings     thereafter  are under the pro- i
        vision5 of Se&ion 3 of the Act, which provides:
Hon. Robert 8. Calvert,    page 3    (v-1391)


             “Sec. 3. If a judge of a court of
     record in any state which by its laws
     has made provision     for commanding per-
     sons within that state to attend and
     testify    in this State certifies     under
     the seal of such .court that there Is a
     criminal prosecution      pending in such
     court 9 or that a grand jury investiga-
     tion has commenced or is about to com-
     mence, that a person being within this
     State is a material witness in such pros-
     ecution      or grand jury investigation,
     and that his presence will be required
     for a specified     number of days upon pre-
     sentation of such certificate       $0 any
     judge of a court of record in the county
     in which such person is, such judge shall
     fix a time and place for a hearing, and
     shall make an order directing       the witness
     to appear at a time and place certain for
     the hearing.
           “If at a hearing the judge deter-
     mines that the witness is material and
     necessary    that it will not cause undue
     hardship !o the witness to be compelled
     to attend and testify    in the prosecution
     or a grand jury investigation     in the oth-
     er state, and that the laws of the state
     in which the prosecution    is pending, or
     grand jury investigation    has commenced or
     is about to commence (and of any other
     state through which ,!he witness may be re-
     quired to pass by ordinary course of trav-
     el)   will give to him protection     from ar-
     res c and the service of civil    and criminal
     process,   he shall issue a summons, with a
     copy of the certificate    attached,    direct-
     ing the witness to attend and testify        in
     the court where the prosecution      is pending,
     or where a grand jury investigation        has
     commenced or is about to commence at a
     time and place specified    in the summons.
     In any such hearing the certificate        shall
     be prima-facie   evidence of all the facts
     stated therein.
          “If said certificate      recommends that
     the witness be taken into      immediate custody
                                                  .

                              -.



Hon. Robert   S. Calvert,   page 4   (V-139ij.


     and delivered    to an offi’cer    of the re-
     questing state to assure his attendance
     in the requesting state,        such judge may,
     in lieu of notification      of the hearing,
     direct that such witness be forthwith
     brought before him for said hearing; and           s
     the judge at the hearing being satis-
     fied of the desirability       of such, custody
     and delivery;for     which’determination
     the certificate    shall be prima-$acie
     proof of such desirability        may, in lieu
     of issuing subpoena or summons, order
     that said2witness    be forthwith taken in-
     to custody and delivered       to an officer
     of the requesting state.
                                   :,.




                                testify as di-
     rected in the summons,;‘he shall be punish-
     ed in the,..manner provided for the punfsh-
     ment of any witness who ~disobeys a sum-
     mons issued from a court of record in this
     State.”   (Emphasis added)
           Section 4, m,      provides that after th.e
witness issummosed to attend and testify    in Texas he
shall be tendered the sum of log a mile for each mile
by the ordinary travel route to and from the Court
where the prosecution   is pending and $5.00 for each
dav that he is reauired to travel and attend as a wit-
ness, which witness fees and mileage,rmust be tendered
to the witness at the time the summons is served upon
him by some properly authorized person in the State
where the witness is: found.
          You ask whether the Legislature        has approprf-
ated money for the payment of the witness        fees provided
for in Rouse Bill 659.
 .          .




Hon. Robert          S. Calve&,   page 5 (V-1391)


            The only appropriation     for witness fees
and mileage in criminal cases contained in the gen-
eral appropriations    Act is to be found in subsection
12 (Judiciary   Section--ComptrollerIs     Department) of
Section 1,~ Article   1, House Bill 426 Acts 52nd Leg.,
19$l.,ch. 499, p. 1228, which is as h0110~s:
                                        “For the Years Ending
                                      August 31,   August 31;
                                        1952        1953
     “12.       Expenses of attached
                witnesses,  witness
                fees and mileage al-
                lowed witnesses in
                felony cases where the
                uitness lives outside
                the county where the
                case is being tried    $kO,OOO.OO   $40,000.OO”
            Prior to 1951 appropriations     in language iden-
tical with the above appropriation      are to be found in
each of the general appropriation      Acts passed by prior
Legislatures,    except that the amounts appropriated vary
from year to year.      In this connection it should be not-
ed that the amount appropriated     for the fiscal    year end-
ing August 31, 1952 was reduced by one-third       from the
amount appropriated    by tiie 51st Legislature   in 1949
(H.B. 320, Acts. 5lst Leg., 1949, ch. 585, p. 1160).
           The sums so appropriated  have been subject to
disbursement in accordance with the provisions   of Arti-
cles 475 to 481 inclusive,   and Article  1036 of Vernon’s
Code of Crimina i Procedure, and have been confined to
witness fees and mileage claimed by witnesses subpoenaed
within the State of Texas under the provisions   of Arti-
cle 1036, V.C.C.P.   Att*y Gen. Op. No. O-429 (1942).
            The general appropriations    act was passed on
May 10, 1951, was approved June 28, 195l. and became ef-
fective   on September 1, 195l.. House Bili 659 was passed
by the House on May 8 1951, and by the Senate on May 30,
1951. It was approve4 by the Governor and became effect-
ive June 15, 1951.     Since House Bill 659 was passed sub-
sequent to the general appropriation      bill, it is evident
that it was not the legislative     intent to appropriate   any
of the funds contained in subsection 12, Section 1 of Ar-
ticle   1 of the appropriation  bill for the purpose of pay-
ing the mileage and per diem of the out-of-State      witnesses
                                                .    .




                                                         ~,




Hon. Robert S. Calvert,    page 6 (V-1391)


to be summoned under the provlsions   of House Bill
659.   Therefore, the Legislature  did not appropri-
ate nor is there available   any money for the pay-
ment of such witness fees and mileage.
            Your second question   is as follows8
             ‘1. . . In the event   ou find there
       is money appropriated,  woupd the certiff-
       cate of t&e judge be sufficient    author-
       ity and constituteV,a voucher for the is-
  -.   suanc; of a warrant in advance of travel?
       . . .
              Although we have held that the Legislature
 did not appropriate     any money for the payment of such
 witness fees and mileage, conceding, m,              ,that
 the funds appropriated     for the expenses of attached
 witnesses,    witness fees and mileage allowed witnesses
  in felony cases where the witness lives outside the
 county where the case is being tried, would be avafl-
‘able for the payment of such witness fees and mileage
 under the theory that witnesses residing      outside of
 the State where the case is being tried are included
 within the category of witnesses outside the county
 where the case is being tried,~ nevertheless     the cer-
 tificate    of the Judge of the Di’strlct  Court of the
 109th Judicial ,Dlstrict    of Texas Is in our opinion in-
  sufficient   authority for the issuance of a warrant fn
 advance of travel.
            In the enactment of House Bill 659 as a uui-
form act    the Legislature  made no provision  for the
method o h securing the money which is required to be
tendered the out-of-State    witness at the time of the
summons. However, the appLlcation     of the statutory
provisions   which govern the disbursement of witness
fees and mileage for out-of-county    witnesses in felony
cases to the disbursement of the same funds for out-
of-State   witnesses in felony cases9 would necessftate
the following    procedure.
           The officer   of the out-of-State    court of reo-
lord who serves the summons upon the witness who is found
within the jurisdiction    of th.e out-of-State   Court au-
thorizing  the summons, would have to secure from the wit-
ness aq affidavit    of his inability   from lack of funds to
appear in obedience to said summons whereupon the offi-
cer executing then summons must prov i de the witness,, if
  .




Hon. Robert   S. Calvert,   page 7   (V-1391)


the summons be issued in a felony case, with the
necessary funds or means to appear in obedience
thereto,  taking his receipt therefor,     and showing
in his return upon said summons, under oath, the
amount furnished to said witness.      Article  447,
V.C.C.P.
            The Judge of the out-of-State     court of
record from which the summons was Issued         if is-
sued in a felony case, Immediately upon ihe return
thereof must issue to such officer     a certificate
for the amount furnished the witness,       together with
the amount of his fees for’ exeouting the same, &I+
ing the amount of each item, which certificate
should then be forwarded to the Judge of the District
Court In Texas who issued the original       certificate
for the attendance of such witness.       Upon the appro-
val by the District   Judge the certificate      must be
recorded by the District    Clerk In a book kept for
that purpose and then transmitted to the officer         who
originally   exeouted the summons, who must then for-
ward it to the Comptroller of Public Accounts to be
paid as other costs are paid in criminal matters.
Articles   478 and 1035, V.C.C.P.    The balance of the
mileage and witness fees due the witness for and af-
ter his attendance before the Dietrict       Court in
Texas would be paid In accordance with the provisions
of Article   1036, V.C.C.P.
           Section 44 of Article    III of the Constitu-
tion of Texas provides that the Le,gislature shall not
“grant, by appropriation    or otherWise, any amount of
money out of the Treasury of the State, to any indi-
vidual,  on a claim, . . . when the same shall not be
provided for by preexisting    law:    . . .‘I
          ,Assuming, without deciding    that Rouse Bill
No. 659 is a valid and constitutiona, 1 prr-existi.lg
law, the claim of the individual.    that is, the witness,
for the payment of mileage and wjtness fees provided
for therein would not accrue until the service of sum-
mons upon him and could only be paid in accordance
with the provisions  of Article   1036, V.C.C.P.,, inas-
v&h as the Legislature    Palled to make provision    In
House Bill 659 for any other method of payment.
Hon. Rob?rt,S.   Cdvkrt,   page 8 (V-13911




            The 52nd Legislature  failed to appro-   "
     ,priate any money for the payment of nit-
      ness and mileage fees for out-of-State
      witnesses to be summoned under the provi-
      sions of House Bill 659 Acts 52nd Leg.
      1951, ch. 44i, p. 798; Art. 486a, Vernonas
      Code of Criminal Procedure.
                                 Yours very truly,
APPROVED:                          PRICE DANIEL
E. Jacobson
Reviewing Assist&t
Charles D. Mathews
First Assistant
                                        Assistant
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