.-   ,
                                                                                                    R-265



                                                                    NE
                                                                  TEXAS




                              Hon. Gecrge H. Sheppard                    Opinion   No. V-125
                              Comptroller   of Public Accounts
                              Austin. Texas                              Re:   Whether claim for witness
                                                                               fees earned in 1941 under
                                                                               facts stated are barred
                                                                               from payment.

                              Dear Mr.      Shcppardz

                                        Your letter of recent date requesting our opinion           relative
                              to the above captioned matter reads as follows:

                                          “In connection   with a claim for witness fees filed
                                     in this department,   tie construction    of the following
                                     language in Article   1036, C.C.P.,   is involved:

                                         ““All.such    claims not filed in the office of the
                                     Comptroller    within twelve (12) months from the date
                                     same besome due and payable shall be fortver barred.’

                                           “The fact, situation before us is as follows:   A
                                     witness frem a foreign country was duly served by
                                     subpoena issued in 1941 to appear in court in Corpus
         11                          Uhristi in 1941. The witness in obedience to said sub-
                                     poena appeared at court in 1941 buffailed     to make af-
              ,_.         .          fidavit and abtam his certificate   from the Clerk ef the
                                     Court .at the term in which he appeared.      NOW, five
                                     years later, he appe’ars and makers the affidavit of his
                    ,,”        I     services,  and the Clerk issues his certificate     showing
                                     the amount of mileage and per diem the wilmess is en-
                                     titled to.

                                         “Is this ‘department authorized te issue warrant
                                    in payment of this certificate,  same showing the action
                                    of the Judge thereon as entered in the minutes of said
                          ,,..,     Court as of this date but relating back to the term of
                                  .
                                l .
                                    count, at which the witness sarvad?

                                             “I ‘shall thank you to advise this department at
                                     your     earliest   convenience   as to whether or not limi-
                                   ‘,: tatienhas     run  against this claim.”

                                         Ar,tfBle 1036, C.C.P.,  as amended Acts 1941, 47th Leg.,
                              Page    688 (effective June 2, 1941) provides for payment by the State



                                                                                        .
                                                                                            :.
Hon. George     H. Sheppard,   Page 2                   Opinion   No. V-125



of witnesses   summoned      out of the county of his residence     in felony
cases.   Sec. (3) thereof    reads, in part, as follows:

          “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 of days he will have been
    necessarily    absent in going to and returning from the
    place of trial; 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.”

          Sec. (4) reads,    in part,   as follows:

         ‘“The District or Criminal District Judge, when
    any such claim is presented to him, shall examine the
    same carefully,    and inquire into the correctness  there-
    of, and approve same, in whole or in part, or disap-
    prove 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 Comptroller,
    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, upa
    forms prescribed     by the Comptroller,  furnishing such
    information  as required by him, and send the same to
    the Comptroller    at such times as he may require, for
    which service the Clerk shall be entitled to a fee of
    Fifty (50) Cents which shall be paid by the witness.”

         Sec.   (5) reads,   in part,   as follows:

          “The Comptroller,    upmn 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 by law in every respect,     draw his warrant
    on the State Treasury    for the amount due in favor of
    the witness entitled to same, * * *- All such claims
    not filed in the office of the Comptroller  within twelve
    (12) months from the date same become due and pay-
    able shall be forever barred.

         In order to answer      your inquiry     we only have to determine
when this claim for witness      fees became      “due and payable.’

         It is evident that this claim was due and payable either at
the time the witiss    was excused by the Court from further attend-
ance, or at the time the witness made the affidavit, secured his
Hon. George    H. Sheppard,      Page   3               Opinion No. V-125




certificate   from   the Clerk   and the approval   of the Trial   Judge.

          “The word ‘due, ’ in its ordinary sense, means
     that which is justly owed;, that which law or justice
     requires to be paid or done.”     Words and Phrases,
     Vol. 13, P. 442.   Griffith Y. Speaks, 63 S.W. 465.

           The word “due,” considered     by itself, has many definitions.
Bouvier defines it, in its first and broadest     sense, as that which is
just and proper, and, in another and less general sense, as “what
ought to be paid; what may be demanded.”         Webster gives its defi-
nition, se far as applicable  to, the matter under consideration,    in
the following order:    “owed, as a debt; that ought to be paid or’ done
to or for another; payable;   owing and demandable;      suitable.”

           “The word ‘payable’ is a descriptive  w&d, mean-
     ing “capable of being paid; suitable to be paid; admit-
     ting or demanding payment; justly due: legally enforce-
     able.‘*

           Words and Phrakes,   Vol. 31, P. 458. First Na-
     tional Bank v. Greenville  National Bank, 19 S. W. 334,
     84 Tex. 40, citing Web&r’s     Dictionary.

           The services,as     a witness were’ fully rendered at the time
of discharge.     The certificate   provided for was merely evidence of
the service,, which the State required before it would issue its war-
rant in payment,.    The witness could not make the affidavit provided
for until his discharge    as a witness,    in that the facts necessary   to
be sworn to were not ascertainable        until that time.   At the time of
discharge,    such witness fees were provable by complyin           with the
requirements     of said Article   1036, C.C.P.

          That portion of Article 1036, C.C.P.,    quoted in your let-
ter of inquiry has not been, as far as we are able to determine,       con-
strued by the courts.    Hewever,   in an analaogous situation the Court
in Staunton V. Frovident Life and Accident Insurance Company; 42
N.E. (2d) 687, in construing    the word payable as used in a life in-
sur8nce policy, ‘held th8t although the insurance    company, under
the terms of the policy, was not required to pay the insurance
money until proof of death had been made, the insurance was pay-
able at the time ef the death of the insured.    The facts in that case
disclose  that the insurance was on,the life of the huabmd.      He shot
his aella and immediately   killed himself.   His wife survived him by
about one hour.    The insurance policy contained the following pro-
vision:

          “If ther,e be no designated beneficiary  surviving                   .
     at the time any benefit shall become payable to the
     beneficiary,   then such benefit shall be payable to the
Hon. George      H. Sheppard,   Page 4                      Opinion No. V-125




     executors     or administrators     of such employee.”
                              .
          The Court in rendermg          its decision   relative   thereto   used
the following language:

          “The defendant claims that the insurance was not
    ‘payable’ until proof of death had been made to the com-
    pany, and, assuming Mr. Stump died first, it wouldhave
    been impossible   for rubh proof te have been made by
    Mrs. Stump during the short time she lived after his
    death, hence when proof was made and the money was
    ‘payable, ’ there was no ‘designated    beneficiary  surviv-
    ing’ and it was payable to her as administratrix      of Mr.
    Stump’s estate;    The quoted provision does net have
    that effect.  The life insurance money Was ‘payable’ on
    the death of the insured, and the right of the benefici-
    ary to it accrued t%en, although the actual pameat        of
    the money would not be made until abe insurer was in-
    formed and satisfied that the insured was dead. The
    latter requirement    is for the benefit of the insurer.”

          Upon like reasoning we hold.‘that then claim for’wltnees
fees was due and payable in 1941, at the time the witness was ex-
cused from further attendance,   and that the right of the witness
to such fees accrued then, although the warrant would not issue
for payment thereof until the witness had furnished to the Comp-
troller the proper approved certificate    satisfying the State that
the service had been rendered.     This requirement,     like the *proof
of death,” was for the benefit of the payor.     Such delayed claim
was barred from payment by the State in that it was not filed in
the office of the Comptroller  ~within twelve months from the date
same became due and payable.

                                  SUMMARY

          A claim for witness fees becomes      due and payable
     at the time the witness is axcused by the court from
     further attendance,  and such claim is forever barred
     fre    payment -less   it is filed in the aftice mf the
     Comptroller   within twelve months from that time. Sec.
     5, Art. 1036, C.C.P.

                                                Very    truly yeurs,
APPROVED
APR 5 1947                               ATTGRNEYGENERALOF                   TEXAS




ATTQRNEYGENERAL                                  W. V. Gsppert
OF TEXAS                                           Assid8nt
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