Honorable Robert S. Calvert           Opinion No. C- 786
Comptroller of Public Accounts
Capitol Station                       Re:   Authority of the Comp-
Austin, Texas                               troller to Issue warrants
                                            for deposit with the Uni-
                                            ted States Marshal for use
                                            in serving subpoenas in a
                                            Habeas Corpus suit in
                                            Federal Court against the
                                            Director of the Depart-
                                            ment of Corrections and
Dear Mr. Calvert:                           related questions,
          Your request for an opinion on the above subject matter
reads as follows:
         'In a recent conference with me, the Chief
    of the Enforcement Division of the Attorney Gen-
    eral's office informed me about a problem the
    Attorney General has encountered in obtaining
    witnesses to testify in United States District
    Courts in Habeas Corpus proceedings against Dr.
    George Beto, Director of the Department of
    Corrections, State of Texas. Under the Federal
    Rules of practice (Federal Rules of Civil Pro-
    cedure, Rule 45, and 28 U.S.C. 1921) before a
    potential witness can be compelled to testify
    he must be served with a subpoena by a United
    States Marshall. He must also be tendered a
    witness fee at the time of service. Your assistant
    further informed me that the United States Marshal
    would not serve subpoenas unless a deposit is
    made with the Marshal before he attempts service.
    Your Assistant further informed me that it is the
    desire of the Attorney General in order to meet
    these requirements of federal procedure to re-
    quest that I prepare and issue State of Texas
    warrants made payable to the name of any wit-
    ness desired by the State for testifying in a
    suit in United States Court. He further desired

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Hon. Robert S. Calvert, page 2 (c-786)


     that I prepare and issue state of Texas warrants
     made payable to the United States Marshal who will
     serve the subpoenas in such proceedings as a deposit
     for their delivery.
          "In the event of the voluntary appearance by
     a witness on behalf of Dr. Beto, you also desire
     that I prepare and issue a State of Texas warrant
     payable to the witness as a witness fee for his
     voluntary appearance.
          'In view of this meeting with your assistant
     and the matters discussed, several questions arise
     in my mind upon which I seek your official opinion,
          "1. Since the procedure which you propose to
     follow in the case of a witness appearing in federal
     court on behalf of Dr. George J. Beto in a Habeas
     Corpus proceeding would be for the comptroller to
     issue and draw a State warrant for a witness fee
     before the testimony is actually given by the wit-
     ness, and since in the case of service of subpoena
     by the U. S. Marshal the procedure would be for the
     comptroller to draw and issue State warrants before
     the witness testifies and before service of the sub-
     poena by the U. S. Marshal, would this course of
     action violate Article 3, Section 50, of the Con-
     stitution of the State of Texas In that it amounts
     to a lending of the credit of the State of Texas?
          "2. In the event the desired w!tness will
     appear voluntarily on behalf of Dr. George J. Beto,
     Director of the Department of Corrections and he
     should then be paid by state warrant drawn and issued
     by the comptroller, would this action by the comp-
     troller constitute the bestowing of a gift or gratuity
     to an individual in violation of Article 3, Section 51
     of the Constitution of the State of Texas?
          “3.  Is Dr. George Beto an individual when he
     is sued as a Defendant in Habeas Corpus proceedings
     in the Courts of the United States or is he in essence,
     the State of Texas?
          "4. What procedure should we follow in the event
     you generally conclude that warrants should be issued
     in the above mentioned situation as desired by your
     Assistant?"

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.




    Hon. Robert S. Calvert, page 3 (CT 786)


              Rule 45 of the Federal Rules of Civil Procedure, ap-
    plicable to Habeas Corpus suits brought in Federal Court provides
    in part as follows:
              "(a) Every subpoena shall be issued by the
         clerk under the seal of the court, shall state the
         name of the court and the title of the action, and
         shall command each person to whom it is directed
         to attend and give testimony at a time and place
         therein specified. The clerk shall Issue a wlh-
         poena, or a subpoena for the production of docu-
         mentary evidence, signed and sealed but otherwise
         in blank, to a party requesting it, who shall fill
         it in before service.
              ". . .

                          oena may be served by the marshal,
         by hi::(:dpu;ysubp
                        or by any other person who is not
         a party and i; not less than 18 years of age. Ser-
         vice of a subpoena upon a person named therein shall
         be made by delivering a copy,thereof to such person
         and by tendering to him the fees for one day's attend-
         ance and th   ileage allowed by law. When the sub-
         poena is isEu:d on behalf of th United States or an
         officer or agency thereof, feeseand mileage need not
         be tendered. (Emphasis added)
              1,
               . . .II
              The per diem and mileage of witnesses in any court of
    the United States is governed by Title 28, U.S.C.A., Sections
    1821 through 1825. Section 1821 provides in part as follows:
             "Section 1821. A witness attending in any
        court of the United States, or before a United
        States commissioner, or before any person authorized
        to take his deposition pursuant to any rule or order
        of a court of the United States, shall receive $4
        for each day's attendance and for the time necessarily
        occupied In going to and returning from the same, and
        8 cents per mile for going from and returning to his
        place of residence. . . .
             tt
              . . .II
              Habeas Corpus proceedings In Federal Court are civil
    proceedings governed by the Federal Rules of Civil Procedure.
    Estep vs. United States, 251 F.2d 579 (5th Clr. 1958). In that

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Hon. Robert S. Calvert, page 4 (C-786)


case it was held that ~the district court did not abuse its dis-
cretion in refusing to subpoena witnesses requested by the ap-
pellant when the appellant did not tender the per diem and mileage
required for the service of the subpoenas.
          A Habeas Corpus proceeding brought in Federal Court
against Dr. George Beto, Director of the Department of Correc-
tions, State of Texas, constitutes a civil proceeding against
the Director of the Department of Corrections in his official
capacity rather than as an individual and is governed by Federal
Rules of Civil Procedure. In the event it becomes necessary for
the proper defense of such suit to subpoena witnesses on behalf
of the State of Texas, a tender of the witness fee must be made
at the time of service. Such tender constitutes a legitimate
expense of litigation, for costs imposed by the Federal Rules
of Civil Procedure, and does not amount to a lending of credit
of the State of Texas in violation of Section 50 of Article III
of the Constitution of Texas. Neither does it constitute a gift
or gratuity to an individual in violation of Section 51 of Article
III of the Constitution of Texas, nor does it constitute the grant
of extra compensation to any officer, agent, servant or public
contractor after such public service has been performed or con-
tract entered into in violation of Section 44 of Article III of
the Constitution of Texas, nor does it violate any other provision
of the Constitution of Texas.
          You are, therefore,advised that the Comptroller of
Public Accounts has the authority to issue such warrants as
may be necessary to tender fees required by the Federal Rules
of Civil Procedure for the subpoena of witnesses necessary to
the proper defense of habeas corpus proceedings brought against
the Director of the Department of Corrections in federal court.
          In our opinion, the warrants should be issued upon
vouchers executed by authorized personnel of either the Attorney
General's Office or the Department of Corrections payable to the
United States Marshal for the purpose of tendering witness fees
and mileage to individuals subpoenaed or payable to the witness
to be subpoenaed.
                     SUMMARY
           The Comptroller of Public Accounts is authorized
     to issue warrants for the deposit of witness fees
     necessary to be tendered in habeas corpus proceedings
     brought against the Director of the Department of
     Corrections, State of Texas, in Federal Court.


                         -3772-
Hon. Robert S. Calvert, page 5 (C- 786)


                             Yours very truly,
                             WAGGONER CARR
                             Attorney General



                                  John Reeves
JR:mh:mkh
APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Pat Bailey
Robert Flowers
Gordon Cass
Malcolm Quick
APPROVED FOR THE ATTORNEY GENERAL
BY2 T. B. Wright




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