         THEA~ORNEY                     GENERAL
                        OFTEXAS




Honorable Jo Ed Winfree           Opinion No. WW-288
Chairman, Committee on
 Criminal Jurisprudence           Re:    Constitutionality of a
Rouse of Representatives                 provision to be added to
Capitol Station                          House Bill 5 recently
Austin, Texas                            submitted to the first
                                         called session of the 55th
                                         Legislature. Whether
                                         witnesses who appeared
                                         before the Commission set
                                         up by the provisions of
                                         said Bill at the invita-
                                         tion of the Commission
                                         would be entitled to reim-
                                         bursement for actual
Bear Colonel Winfree:                    travel expenses and costs.
          Your request for an opinion on the proposed amend-
ment to House Bill 5 of the First Called Session of the 55th
Legislature reads as follows:
          "As Chairman of the House of Representatives
     Committee on Criminal Jurisprudence, I wish to
     request an opinion on the following proposition:
         "House Bill No. 5, Section No. '7,as sub-
    mitted in the First Called Session of the 55th
    Texas Legislature I.eadsas follows:
          "'Section 7: Any hearings conducted by
     the Commission shall be public. The Commission
     shall have the power of subpoena, subpoena duces
     tecum, and all other process to the extent of the
     Jurisdiction of this State, and may provide by
     rule or order for the issuance of such process.
     Officers of the Department of Public Safety, or
     any Sheriff or Constable of any County in Texas
     may serve as such process and make return.
Honorable Joe Ed Winfree, Page 2 (w-w-288)


     Such costs and the travel and per diem expenses
     of witnesses, at the same rate payable for
     appearance before a Committee of the Legislature,
     shall be paid by the State out of the appropria-
     tions made to the Commission.'
          "The author of this bill states that the
     purpose of this section is to provide reimburse-
     ment of witnesses appearing before the Commission.
          "The Sub-committee has suggested that
     language such as the following be substituted for
     the subpoena provision.
          'IAny witness invited to aopear before the
     Commission by written request from the Chairman
     be reimbursed for his actual travel expenses and
     costs, Such costs and the travel and per diem
     expenses of witnesses, at the same rate payable for
     appearance before a Committee of the Legislature,
     shall be paid by the State out of the appropria-
     tions made to the Commission.'
          "Please advise whether or not the suggested
     changes are constitutional, and whether under
     such a provision any witness would be entitled to
     reimbursement for actual travel expenses and costs."
           Under the provisions of Sectio::7 of the House Bill
No . 5, the Commission is authorized to subpoena individuals
to appear before it and to pay their travel and per diem Ed-
penses of such witnesses. Under the amendment suggested by
the Sub-committee, no witness would be compelled to qnpedr
before the Commission. Under such circumstances, any vitness
appearing before the Commission would be appearing without
legal obligation.
          Se&Ion 51 of Article III of the Constitution of
Texas prohibits the granting of public moneys to any individual.
In view of the provisions of Section 51 of Article III, payment
of traveling expenses of any witness appearing before the Com-
mission when such witness is not under any legal obligation to
make such appearance, would constitute a gratuity In violation
of Section 51 of Article III, Constitution of Texas.
Honorable Jo Ed Winfree, Page'3 (~~-288)


          Therefore, you are advised that the suggested changes
in Section'7 of House Bill No. 5 would be unconstitutional and
invalid.

                              SUMMARY
            A suggested change in the provisions of
            Section 7 of House Bill 5 of the First
            Called Session of the 55th Legislature,
            whereby witnesses appearing before the
            Law Enforcement Study Commission, crea-
            ted by the Act, would receive their
            traveling expenses is invalid as consti-
            tuting a gratuity in violation of the
            provisions of Section 51 of Article III
            of the Constitution of Texas, since such
            witnesses would be under no legal
            obligation to appear before the Commis-
            sion.
                                 Very truly yours,
                                 WILL WILSON
                                 Attorney General of Texas




JR:pf:jl
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
John H. Minton, Jr.
B. H. Timmins, Jr.
Wayland C. Rivers, Jr.
J. C. Davis, Jr.
