             E

                     OF    TEXAS

                     A~JSTIN   ~1. TEXAS




Honorable Geo. H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sirr              Opinion No. O-7327
                       Re: Authority of the Comptroller of
                           Public Accounts to issue warrants
                           in payment of the certlflcates
                           described herein.
        Your request for an opinl.onupon the above question
has been received and considered by this department. The
facts from the attached witness certificates, letters end
affid~avitsare as follows: The Assistant Criminal District
Attorney of Tarrant County, Texas, wrote a letter to claim-
ants, J. C. Riley and Harvey Riley of Clarendon, Texris,
asking them to appear before the grand jury o:fTnrrnnt Coufity
to testify concerning an alleged felony. The claimants ap-
peared and testified and the Assistant Criminal Dlstrlct
Attorney made an affidavit to such facts and further stated
that such testimony was material snd that no subpoena was
issued to either claimant. The claimants seek to recover
their statutory fees.
        The authority of the Comptroller of Public Accounts
to approve the above mentioned clslms for payment must be
found in Article 1036, Code of CrlmInal Procedure, as amend-
ed In 1941. The pertinent provis,ionsof said Article 2re
as follows:
       "Witnesses shall receive from the State, for
   attendance upon District Courts and grand juries in
   counties other than that of their residence in obe-
   dience to subpoenas issued under the provisions of
   law Three (3) Cents per mile, going to and return-
   Lng from the Court or grand jury, by the nearest
   practical conveyance, and Two Dollars ($2) per day
   for each day they may necessarily be absent from
   home as a witness to be paid as now provided by
   law; and the foreman of the grand jury, or the
   District Clerk, shall issue such witness certifi-
   cates therefor, after d~eductlngtherefrom the amounts
   advanced by the officers serving said subpoenas, as
   shown by the returns on said subpoenas; which cer-
Honorable Geo. H. Sheppard, page 2        0 -7327


   tificatea shall be     approved by the District.
   Judge, and recorded by the Clerk in a well-bound
   book kept for that purpose; provided, that when
   an Indictment can be found from the evidence taken
   before an inquest or examining trial, no subpoena
   or attachment shall issue for a witness who re-
   aides out of the county in which the prosecution
   la pending to appear before a grand jury. When
   the grand jury shall certify to the District Judge
   that sufficient evidence can not be secured upon
   which to find an Indictment, except upon testl-
   mony of nonresident witnesses, the District Judge
   may have subpoenas Issued as provided for by law
   to other counties for witnesses to testify before
   the grand jury, not to exceed one witness to any
   one fact, nor more than three (3) witnesses to
   any one case pe~ndlngbefore the grand jury."
        When the foregoing provisions of the statute'are
considered together, as they must, it is apparent that the
State of Texas, under the facts above stated, does not pay
the mlleage and per diem therein prescribed to a witness who
attends a grand jury without the county of his residence un-
leas he does so In obedience to a subpoena 'Issued under the
provisions of law." The statute prescribes the procedure to
be followed in obtaining a subpoena for such a witness:
        "When the grand jury shall certify to the Dia-
    trict Judge that sufficient evidence cannot be se-
    cured upon which to find an indictment, except upon
    the testimony of non resident wltneaaea, the District
    Judge may have subpoenas issued as prescribed by law
    to other counties for witnesses to testify before the
    grand jury . . .'
       Article 461, Code of CrlmInal Procedure defines a
"subpoena." The pertinent part of said Article Is as follows:
        "A 'subpoena' is a writ issued to the sheriff
    or other proper officer commanding him to summon
    one or more persons therein named to appear . . .
    on a certain day . . . before . . . the grand jury
    . . . The writ shall be dated and signed officially
    by the court or clerk Issuing same, but need not be
    under seal."
        By the terms of Art. 463, C. C. Pi.the district
clerk or his deputy is the officer designated to issue sub-
poenas to other countlea.
.   -




        Honorable Geo. H. Sheppard, page 3         O-7327



                We have foundsno statute empowerlng a county attor-
        ney, district attorney or criminal district attorney or an
        assistant of either of said officers to issue a subpoena for
        a witness to appear before a grand jury.
                The undisputed facts are that no subpoena of any
        character was ever issued by the district clerk of Tarrant
        County for either of said witnesses or that the grand jury
        of said county ever apnlied to the Judge of *he Criminal
        District Court of said county for a subpoena for either of
        them, but that both witnesses appeared before the grand jury
        upon the written request of an Assistant Criminal District
        Attorney of said county.
                In view of the foregoing, we are forced to the in-
        evitable conclusion that these claFms for witness fees and
        mileage may not be legally paid by the State of Texas. Any
        other conclusion would do violence to the plain provisions
        of the statute and permit payment of such fees and mileage
        to a witness for attending a grand jury without the county
        of his residence upon the request of some officer, other
        than in obedience to a subpoena issued by a district clerk
        upon the order of the dLstr1ct judge of h1s county, as pro-
        vided by Article 1036, as amended.
                We are herewith returning both witness certificates
        and the affidavits attached thereto.
                                       Yours very truly
                                    ATTORNEY GENERAL OF TEXAS

                                       By a/James Anderson, Jr.
                                            James Anderson, Jr.,
                                            Assistant
        JA:zd:wc
        Encl.

        APPROVED SEP 5, 1946
        s/Carlos C. Ashley
        FIRST ASSISTANT
        ATTORNEY GENERAL
        Approved Opinion Committee By s/BWB Chairman
