 OFFICE OF THE ATTORNEY         GENERAL   OF TEXAS
                       AUSTIN




Roll.2. I-Lalal
Dl.strlotAttarmy
aiohltaFalls,Teraa
har   SIT1     Attention   02 ?&. c. C.
               CplRlon No. o-
Hon. 2. D. Allen, Page 2


     reeldenoe, in obedience to aubpo4nas leaued
     under the provisions of law their actual
     traveling 8sepllBoB,not exaa0uillgfour oenta
     per mile, going to and reQurnlng rmaitha
     court of grsnd jury, by the nearest ?raotlcal
     conveyance, and two dollars per day for each
     day they may nsoessarlly be absent from home
     ;:~&awlt~ess, to be paid as now pmvlded by
        ;....
          Seation 3 of the above mentioned artlole pro-
vides that;
         T3erore the alose oT eaoh term of Dlrrtrlot
    COW%, the witness shall uako an affidavit stat-
    ing the number of miles he will have traveled
    going to mdreturningfmm     the oourt, by the
    neareot praetioal oonveyanoe, and tbe number
    of daya he will have bee9 neoesearlly absent
    In going to and returning frm the plaoe of
    trial; which at?ldavlt uhall bu filed with the
    papwm OS the oaB8. X0 witigms &all reaelve
    pay for his aervioes 86 a witness la more
    than ono aaee at any one terraof the eourt.
    Fees shall not be allowed to aore than two
    titneasee to the same faot, unless the judge
    before whaa the oausa is tried shall, after
    suoh ause has been trie& eontimed, or other-
    wlee disposed of, oertliy that such witnesses
    were necessnry In the oauae...."
          It ie well eattled$hat no publla offlclal Is
entitled to reaelve end ret&n any l'eeeor aonrpensatlon
unless there Is a pzwvlelon made by the Legislattq &v-
lng the aeme to hlra. See the 08688 of U. C. Calla vm.
City of Rockdale, 246 ~ 654; Duolos YB. %rris ~Cotity,
298 Syp417 and authoritlea &ted therein. Alon(l?;@esame
line, the courte have held that the Legislature tiy pro-
vide for the allm?anoo of expenses incurred by WI offQH3r
In a~dltlcn to the oar,peu6atlonftied by ktW* ?%l'l"@~Vf8.
Ping, 14 SW 2nd 786.  ml&&e   S8Q7, Vernon’s Civil Statutes
and euthorltlerroltsd thereunder, pertaining to the filing
of expense aaoounts of various offiolala.
          In the 0888 of.Xay %!a*State, 202 SW 189, the
question was whether a salaried polieemn was entitled to
Hon. 2. D. Allen, Page 3



hia Per diea under the old Article Il37b, Code of Grimin-
al Procedure (now repealed). The court, In tbls case,
after holding this article applicable only to felony
Cases and not the oase under consideration, which was a
misdemeanor, used the following language:

          "There being no difference with reference
    to mledemeanor cases as to the charaoter of
    witnesses, whether officers or not, the ofri-
    Cer would come nbthin the general category, as
    we understand the law, as witness. liisoffi-
    cial character, so far as that proposition 1s
    cncermd,   would make no dltferenoe...."
          We qU.?te from 5ien::t.e
                                Bill No. 427, Acts of the
46th Legislature, as follows:
         "No traveling expenses shall be claimed,
    allowed, or paid unless incurred while travel-
    ing on official buslllessof the State. Any
    state offioial or employee entitled to trav&
    lng expenses out of state epproprlations herein
    made, who Is legally or orrloially required
    to be present at the trial of any state case,
    shall not olaim t:aveliqg expenses from the
    state and also.from the court, wherein said
    case is pending. If, by oversight, duplloate
    claims are filed for seid traveling expenses
    and collected then said offloers or employees
    shall reimburse and refund to the state treasurer
    in an amount equal to ths respective amount
    col'ected under suoh witness fee end mileage
    cla~&ed.*
       1
          Under the aase of Lay vs. State, supra, it seems
that the official aharaater of the witness mekes no diffe:--
ence as to the per diem, where the statutes do not specifi-
o~LLY draw a line between officers as witnesses and ordinary
witnesses. AitioIe IO36, Code of Criminal Frogedure, supra,
the present statute providing fees and milegge for out of
county witnesses -does not make this distinction. St has
long been the departmental construction of the COmPtr'oller~s
office tbt State Hi&way Fatrolrm8nare entitled to mileage
aM the 32.00  per diem as out-of-county witnesses In a felony
case In the court and before the grand jury iwestigatiog
a felony. Doweve, such highway patrolmsn receiving mileage
Hon.   Z.   D.   kllen,   Fage   4



fees and Zk.00 pd'rdiem fraa the ocurt are not entitled
to oolleot the mileage feea e& the $&CO per diem and
also the treoeling expenses ollimeb by the generr;lappro-
priatton bill. It the per dlerz6nd niletjgeunder Rrtlala
1036 findthe traveling expenses es clkwed by tha q~~eral
eppro~~'iotitinbill ere eclleoted, then suoh highway patrol-
men would be required to reimburse and refund to the Stnte
Trteeurer en fmount squel to the resyeotive amuat ccl-
lncted es such witness tee and pilleageihder Artiole 1036,
suprsl;thet la, Highway Patrolmen when subpoenaed as owt-
of-ocunty wltnaoa before the court in e relony ease or be-
fore the cqrand jury lnvesti~t.lng 6 feleny cane oennot
alaim bcth the loileagetses and pV-rdle~ es allowed by
Article 1036, qupra, and olsoths tPcjvelfnge.xpeneseal-
lowed by the @enoral dpproptiaticn Bill. "n'e believe the
Comptroller has oorreotly oonatrued the law.
          We want te thank you Tar the able briar eub-
nltted with your inquiry whiah has been very helpful in
answering your guestions.
          Truatinffthc:tthe foregoing fully answers your
inquiry, we remain
                                            Yours very truly
                                     ATT-        tlBXE-Lil
                                                         OF ?EX!!S


                                                  lirdellW%lliams
                                                        Aselstant
