                      THE       ATIVMCNEY                GEXERAL
                                       OFTEXAS

Gerald     C. Mann


         Hon. Geo. EL. Shrp ard            Opinion      ‘NO. O-3806
         Cg&llgl~y3r of Pug llc            E&II Witness       Fe08  - state       rmployeea-
                                                attached       witnreera
         Austin 3 Texas
         Dear S:lr:
                        Your request    f<or ,opinion    up.011the following         stated
         questions:
                      “1. Will a State e!nployee who is subpoenaed
               tin a felony case as an out of county witness,     and
               who travels    in a State owned automobile,  be rn-
               titled   to receive  3$ per mila as provided  In ,the~
               bill:
                      “2. What fees, if any, will a witness     be en-
               titled   to receive when attached   and conveyed by
               t:he sheriff   of his home county to a foreign   court
               to serve as a witness    in a felony case?e
         has been received       and carefully       considered       by .this   department.
                     House Bill No. -214, Acts of the Regular                    Session of the
         47th Legislature,     emends Article 1036, V.A.C.C.P.,                   so that Sec-
         tion 1 thereof    reads as follows:
                       ‘#Any witness   who may have been .subpornard,
                or shall have been recognized          or’ attached’and
                given bond for his appearance          before any court,
                or before any grand jury, out of then county of
                h,is residence;     to testify    in a felony case, re-
                gardless    of disposition      of said case, and who
                appears in compliance with the obligations              of
                s,uch recognizance      or bond, shall be allowed
                three (3) cents per mile going to and returning
                from the court or grand jury, by the nearsst
                practical,   conveyance,      and ,two CS2.00) dollars
                pier day for each days he may necessarily           be ab-
                slant from home as a witness         in such case.”
                        Prior to its amendment, Section           ‘1 of Article       1036,
         V. A.C.C.P.,      provided that such witnr.ss:
                                        :.     ,. :
                                                                               ”   .




Hon. Gee. Ii. Sheppard,      page   2   (o-3806)



     and returning    from the court or grand jury, by
     the nearest   practical  conveyance,  and two dol-
     lars per day for each day he may neoossarlly       br
     absent from home as a witness     in such case.*
              We quote   from opinion    lo.   O-3224 of this     department
as followst
            “You are respectfully       advised that it is the
      opinion of this department        that such witnesses
      would be entitled     to threr    cents per mile going to
      and returning     from the court or grand jury by the
      near6 st practical    conveyance.      Whether they trav-
      alled on a railway      pass, with peace officers,     in
      state owned automobiles,       or in their own automo-
      biles would be immaterial.
            %owever, we wtsh to point out that Stat.
      employees cannot claim traveling      expenses from the
      State and also from the court in State cases.        See
      Subdivision   12(a) of Section 2 of the Departmental
      Appropriation   Bill  47th Legislature     of Texas,
      which reads as foliowst
              Ii*a, No traveling      expenses shall be claimed,
      allowed, or paid unless          incurred while traveling
      cn State business.         Any State orricial or employee
      sntltled     to traveling    expenses out of State appro-
      priations     herein made who Is legally          or offlclally
      required     to be presen 4 at the trial        of any Stata
      (case, shall not claim traveling           expenses from the
      State and also from the Court wherein said case is
      :pendlng,      If by over sight,     duplicate   claims are
      ;fllsd ror said traveling          expenses and collected,
      .then said offlc8rs       or employees shall reimburse          and
      :r.efund to the State Treasurer          an amount equal to
      ,thr respective      amount collected       under such witness
      rems and mileage claim.lD
              We quote   from opinion     Ho. O-1526 of this      department
 as r0ii0w
              “Under the case of Lay VS. State,        supra, it
       seems that the official       character   of the witness
       ma&es no dirrerence     as to the per diem, where the
       statutes   do not speolrlcally       draw a line between
       orricers   as witnesses    and ordinary witnesses.        Arti-
       cle 1036, Code or Crlmlnal Procedure           supra   the
       present   statute  provldlng    fees and m1leage tor out
       or county witnesses     does not make this distlnctlon.
Hon. 080.      B. Shrppard,   page 3    (O-3806)


     It has long barn the departmental             constraotion       or
     the Comptrollerts      office that State Highway Patrol-
     men ar8 rntltled     to mlleag8 and the $2.00 per diem
     aa 0ut-0r-c0wy witnrssrs             l.g a r8i0ay cas8      in the
     court and brrorr.thr       grand jury investigating            a
     r,810ay. Hcwrver, such highway patrolmrn rrorlving
     mileage fe8s and $2.00 per diem rrom the court are
     not entitled    to oollect      the mlleag8 frrs and the
     &?.OO per diem and also the. travrllng              lxp8nses
     allowed by the general appropriation              bill,     If the
     per ,diem and mileage. under Article           1036 and the
     travaling    expenses as allowed by thr general               apprc-
     pxiation   bill   are oollected,        then such highway
     patrolmen would be required           to, reimburse     and refund
     to, the State’ Treasurer      an amount equal to the re-
     sprctlve    amount collected       as such witness       fee and
     mileage under Article        1036,     supra; that is, Highway
     Patrolmen when subpoenard as out-of-county                 witness
     bafore the court in a felony case or before the
     gra,nd jury investigating         a’ felony case cannot claim
     both the, mileage flea and per diem as allowed by
      Article  1036, supra; and also the traveling               expenses
     a:Llowed by the General Appropriation             Bill.     We be-
     lieve the Comptroller        has correctly       construed     the
     law.”
               Prticle   481, V.A.,C.C.P.,    reads’ as follows:
              “If a witnrss    summoned from without the county
      refuse     to obey a subpoena, he shall be rined by the
      court    or magistrate     not exceeding five hundred dol-
      lars,    which rine and judgment shall be final,            unless
      set asidr after due notice to show cause why it
      should not bd rinal         whloh notice may immediately         is-
      8118, requiring      the defaulting     witness to appear at
      OIICI or at ths      next term of said court,        in the dis-
      cretion      of the judge, to answer for such derault,
      The court may cause to be issued at the same .time an
      attachment      ror said witness,     dir8cted    to the proper
      county, commanding the ofricar to whom said writ is
      directed      to take said witness      into custody and have
      h.im before said court at the time named in said writ;
      in which case such witness          shall receivr     no fees
      unless hit appears to the court that such disobedience
      la excusable,       when ,the witness    may receive    the sam8
      pay as if he pad not bean attached.              Said find when
      made finals and ‘all costs thereon          shall be collected
      as in other criminal        cases.    Bald finds and judgment
      may be set aside id” vacation         6r at the same or any
      subsequent      term of the court for good cause shown,
Hon. (fro. H. Sheppard,     page 4    (O-3806)

     arter   the’wltness     t@StiriQS ,or has b@Qn discharged.
     !Ehe following     words. shall b8 Wrltt@nor prl@ed       on
     the face or such subpoena for out-county        wltness8sr
      18 disobedienc8     of this subpoena is punlshablr     by
     fine not @xC@Qding riV8 hundred dollars,,       to be col-
     lected    as rlnes and costs In other criminal      cases.”

              A State employee may uSa a state        owned automobile    for
“State buslnessw      and not for “personal      business@@. Whether a
State employer -attends      court as a witness      on “State buslnessw
or @‘personal busin8ssn      uill   depend upon the facts in each case.
For example , an auditor       from the Comptroller~s      OffiC8 who testl-
fies as to a shortage       In the accounts of a tax collector         in a
suit brought by thestate         to recover on the official      bond of the
tax collector      would clearly    be on wState businessw;      however, if
the same auditor      saw a murder committed and was summoned as a
witness    his attendance     in court as a witness      in the murder case
would be wpersonal buslnessU and not “State businrssw.               such
auditor    would be authorized      to use a Stati    automobile   on the
collection     suit against    the tax collector     and his surety,    but
would not be authorized        to use the estate automobile      on the mur-
der case.
            We assume from your first    question that the State em-
ployee using a State owned automobile was on “State business”
If this be true he would be entitled      to the traveling expenses
set out In the General Appropriation      Bill and would not be en-
titled   to any witness   rem8 or mileage rrom the State.   If both
were collected    he would have to rerund to the St,ate the witness
and q.ileage fees.
             We assume from your second question          that the witness
had disobeyed a subpoena and was attached            and placed In the legal
custody of the sheriff.        If it appeared to the court that such
disobedience    was excusable    the witness would be entitled          to his
per diem and mileage fees.         If the court found that the dlsobed-
lencn to the subpoena was not excusable           the witness would not be
entitled    to any fees.    It is our further       opinion that a witness
who has been recognlz8.d      or attached   and given bond for his ap-
pearance before any court ,or before any grand jury, out of the
county of his residenc8,       to testify   in a felony case, and who
appeared in compliance with the obllgatlons             of such recognizance
or bond, would be entitled        to the mileage and per diem set out
in the statute.
APPROVEDAUG~    21, 1941                    Very truly yours
/s/ Gerald C.. Mann                         ATTORNEY     GEEERBLOF TEXAS
ATTOIINEYGENERALOF TEXAS                    By/s/    Wm.  J. Fanning
APPROVED:OPINION COMMITTEE                  Wm.   J.  Fanning,   Assistant
BY: GWB, CHAIRMAN
WJF:O:wb
