              .     .




              E                             ENE



                        AUSTIN   II.TEXAS         Overrules
                                                          v-34

                           March 14, 1962

Honorable William E. Carroll      Opinion No. ~~-1276
District Attorney
1st Judicial District             Re:   Whether a district
Jasper, Texas                           attorney should be re-
                                        imbursed for his actual
                                        and necessary expenses
                                        in appearing before the
                                        Court of Criminal Appeals
                                        to argue a criminal case,
Dear Mr. Carroll:                       and related questions.
       We are in receipt of your request in which you ask
the following questions:
         "(1) Whether or not a district attorney
      should be reimbursed for his actual and
      necessary expenses in connection with appear-
      ing before the Court of Criminal Appeals on
      behalf of the State of Texas to argue a case
      in which the district attorney has represented
      the State of Texas in a district court in his
      district and which has been appealed to the
      Court of Criminal Appeals.
          "(2) Whether or not a district attorney
       should be reimbursed for his actual and
       necessary expenses in connection with arguing
       a motion for rehearing before the Court of
       Criminal Appeals in a case in which the
       district attorney represented the State of
       Texas in a district court of his district and
       which has been reversed by the Court of
       Criminal Appeals."
       These questions arise as a result of Opinion No.
V-354, by a former Attorney General who held such office in
1947, in which opinion he held that a district attorney was
not entitled to reimbursement for his travel expenses where
he traveled beyond his district to appear before the Court
of Criminal Appeals in connection with a motionfor rehear-
ing nor when he made similar trips for the purpose of dis-
cussing the reindictment of the defendant with the State's
Hon. William E. Carroll       Page 2     Opinion No. w&1276


Attorney and the judges of the Court of Criminal Appeals.
The basis of this opinion was centered around the con-
struction of Article 1811, Vernon's Civil Statutes, which
provides:
            "The Court of Criminal Appeals shall
         appoint an attorney to represent the State
         in all proceedings before said court, to be
         styled 'State's prosecuting attorney."
In construing this statute it was the opinion of the then
Attorney General that since it was the duty of the State's
prosecuting attorney to represent the State in all proceed-
ings before such court, that the district attorney had no
authority to represent the State before the Court of
Criminal Appeals and was not entitled to be reimbursed for
his traveling expenses.
       The questions which you present are, in effect, a re-
quest for a reconsideration of Attorney General's Opinion No.
v-354.

       Article 6820,   Vernon's Civil Statutes, provides in
part as follows:
            "All district judges and district attor-
         neys when engaged in the discharge of their
         official duties in any county in this State
         other than the county of their residence
         shall be allowed their actual and necessary
         expenses while actually engaged in the dis-
         charge of such duties, . . . ." (Emphasis
         added)
Section 21 of Article V, Texas Constitution, provides that
it shall be the duty of the district attorney to represent
the State in all criminal cases in the district courts of
his particular district.

       Article 25 of the Texas Code of Criminal Procedure
also provides:
            "Each district attorney shall represent
         the State in all criminal cases in the dis-
         trict courts of his district."
       Our investigation shows that on the average there are
1500 cases appealed annually to the Texas Court of Criminal
Appeals which require study; from 450 to 500 of these cases
              ,   1




Hon. William E. Carroll    Page 3    Opinion No. ~~-1276


require extensive study and the preparation of briefs. There
is only one State's prosecuting attorney and the cases appealed
each year are increasing in VOhTE.
       Section 51 of Article III of the Texas Constitution
provides in part as follows:
          "The Legislature shall have no power to
       make any grant or authorize the making of
       any grant of public monies to any individual,
       association of individuals,.municipal or
       other corporations whatsoever; . . . .'
While this article prohibits the Legislature from granting or
appropriating public money to any of the potential recipients
named, the Texas courts have interpreted this section of the
Constitution as not preventing it from appropriating State
funds to an individual, association of individuals, municipal
or other corporation if the use or purpose of the appropriation
is for the furtherance of the governmental duties of the State.
If an appropriation is made for a use not related to any State
governmental duty or function,such an appropriation would be a
gratuity and therefore invalid. Bexar County v. Linden, 110
Tex. 339, 220 S.W. 760 (1920); Road District;NcC.4, Shelby Co.
v. Allred, 123 Tex. 77, 68 S.W.2d lb4 (1934)   ity of Aransas
Pass v. Keeling 112 Tex. 339, 247 S.W. 818, (1923); Jones v.
Alexander, 122 $ex. 328, 59 S.W.2d 1080 (1933); Texas Pharma-
ceutical Association v. Dooley, 90 S.W.2d 328 (Civ. App.,1936);
Jefferson Co. v. Board of Co. & Dist. Road Indebtedness, 143
Tex. 99, 182 S.W.2d 908 (l944).
       This office has been called on many occasions for an
opinion to determine whether expenditure of appropriated funds
could be used by personnel of the .variousgovernmental depart-
ments to attend schools, clinics, conferences, etc., for train-
ing purposes which would directly and substantially relate to
the performance of the State's governmental functions.
       In Attorney General's Opinion No. WW-223, (1957) this
office held that the Texas Department of Public Safety could
pay the tuition of an employee for the attendance of a Pilot-
Investigator Flight Proficiency Training Program. We held in
that opinion that:
          "It is apparent from the facts stated in
       your request that the training received by the
       said Pilot-Investigators will be directly and
       substantially used by the employee Pilot-
       Investigator to facilitate the operation of
Hon. William E. Carroll    Page 4    Opinion No. ~~~-1276


      the aircraft in a more efficient manner,
      and therefore, the facts established that
      the relationship between the purpose of
      the training and tinefunctions of the Texas
      Department of Public Safety intrusted to
      the employee is reasonable, substantial and
      direct."
       In Attorney General's Opinion No. W-505, (1958) this
office held that the General Land Office may pay the regis-
tration fees for their Chief Appraiser to attend the South;
West Appraisal Conference because such training that he would
receive reasonably, substantially and directly related to his
duties and that the fees for registration of the Executive
Secretary of the Veteran's Land Board and an Attorney for the
General Land Office may also be paid.
       Attorney General's Opinion No. Wd-467, (1958) held that
the payment of traveling and per diem expenses for certain
named State employees attending an ~Instituteon Alcohol Studies
held by the Texas Commission on Alcoholism and the National
Counsel of Alcoholism was authorized.
       In Attorney General's Opinion No, w-83 (1957) the
question was presented to this offiCe whether persons assigned
to the Board of Insurance Commissioners, who were responsible
for the preparation of 250,000 monthly assistance warrants and
all the related departmental statistical reporting as well as
other duties, could attend an IBM school in order to learn how
to use a new type of IBM machine which was to be delivered to
that department in the then near future.
       In holding that they could be sent to such a school this
office held in that opinion in part as follows:
          II. . .Therefore, we will review the hold-
       ing therein as well as various previous opin-
       ions of Attorney Generals on similar questions.
       In reaching the conclusion in Attorney
       General's Opinion S-209,.it was stated that
       the training given would be directly and sub-
       stantially used by the employee to facilitate
       the oneration of the IBM machine in a more
       efficient manner and, therefore, the facts
       established that the relationship between the
       purpose of the trip and the accomplishment of
       the functions of the government entrusted to
       the employee is reasonable, substantial and
       direct.!'
Hon. William E. Carroll    Page 5   Opinion No. ~~-1276


       We further held in that opinion thatin determining
whether travel is included pursuant to the General Appropri-
ations Bill "for State purposes" the questions to be decided
are whether the result of such travel is the accomplishment
of a governmental function and the means and methods adopted
are reasonably necessary.
       In Attorney General's Opinion No. WW-245 (1957) this
office held that the traveling expenses incurred by district
attorneys attending conferences of district and county
attorneys for the purpose of study and discussion of mutual
problems in the field of criminal prosecution was authorized.
In that opinion we quoted Subdivision F of Section 29, of
Article 6 of House Bill 133, Acts of the 55th Legislature,
effective September 1, 1957, which provided as follows:
          "Travel expenses may be reimbursed from
       the appropriations made in this Act only
       where the purposes of the travel performed
       are clearly for the conduct of the State's
       official business and in consonance with the
       legal responsibilities of the agency of the
       State represented."
We concluded that opinion by saying that the travel expenses
of a district attorney coming to Austin to attend the confer-
ence may be paid by the Comptroller out of the money appro-
priated in House Bill No. 133, Acts 55th Legislature.
       It was the former Attorney General's Opinion in V-354
that since the Court of Criminal Appeals appoints a State's
prosecuting attorney to represent the State in all proceedings
before that court, a district attorney would not be entitled
to his mileage or expenses when he appeared before the Court
of Criminal Appeals to assist the State's prosecuting attorney
in the preparation of the necessary briefs that precede such
an argument. It is our opinion that Attorney General's Opinion
V-354 is erroneous, and the same is expressly overruled.
       The question is not whether the Court of Criminal
Appeals has a State's Attorney to present cases before them on
appeal, but whether the travel by a District Attorney to
Austin to argue an appeal before the Court of Criminal Appeals
or a Motion for Rehearing is State's business. It has been
the opinion of this office that to entitle a State employee
to be reimbursed for travel expenses the facts must establish
"that the relationship between the purpose of the trip and
the accomplishment of the functions of the government en-
trusted to the employee is reasonable, substantial and direct."
Hon. William E. Carroll       Page 6    Opinion No. ~~-1276


       The District Attorney is entrusted by the Constitution
and the citizenry of his district to prosecute those charged
with a violation of a crime made punishable in his jurisdic-
tion by ~,theLegislature. A district attorney who prosecuted
the case and secured the convictions, being fully Informed as
to the facts presented in the trlal.court, can better inform
the Court of Criminal Appeals on the points upon which the
defendant is predicating his appeal and the Court of Criminal
Appeals is entitled to the benefit of the district attorney's
superior knowledge of the case. To continue to pursue his
function as a prosecutor by assisting the State's Attorney on
an appeal from conviction is a function which is reasonable,
substantial, and of direct benefit to the State of Texas, and
he is, in our opinion, entitled to reimbursement for his act-
ual and necessary expenses in connection with appearances
before the Court of Criminal Appeals on behalf of the State
of Texas, whether it be to argue the case on appeal or to
argue a motion for rehearing.
                       SUMMARY
            A district attorney is entitled to reim-
         bursement for his actual and necessary ex-
         penses in appearing before the Court of
         Criminal Appeals to argue ,a criminal case
         or a motion for rehearing. Prior Attorney
         General's Opinion No. V-354 (1947) is ex-
         pressly overruled.
                              Yours very truly,
                               WILL WILSON
                            s!?g2/


                                   on F. Pesek
LFP:sh                                     Attorney General

APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
J. C. Davis
Marvin Thomas
Bob Flowers
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee,Jr.
