Honorable T. J. Crowe, M. D.           Opinion No. 0-42z?
Secretary                              Re: Fees to witnesses for at-
Texas State Board of Medical Examiners      tending misdemeanor cases
Dallas,Texas                                under the facts set Portb

Dear Sir:

          Your letter of Bovember 19, 1941, requesting the opinion of
this department on the questions stated therein reads in part as fol-
lows:

          "I am writing you to ascertain just how far the State Board
     of Medical Examiners may go in payment of witness fees for attend-
     ing misdemeanor 'cases.

         "You of course know that we can not force the attendance of
    a witness who is out of the county in which the trial is being
    held. You are also aware that the State does not allow witness
    fees in misdemeanor cases. In many cases in order to get a con-
    viction it is necessary to bring witnesses from other counties
    and sometimes from long distances in order to get satisfactory
    evidence before the court to secure conviction.

         "You are aware of course that the State Board deposits with
    the State Treasury a special fund known as the Annual Registration
    Fund for the purpose of prosecuting violations of the Medical Prac-
    tice Act. It is said in the Registration Act that the Board may
    spend such moneys as are available in the State Treasury in the
    Special Registration Fund which as you know is collected from the
    doctors of the State and deposited to the credit of the Secretary
    of the Department of the Board for the prosecutions.

         "It is further stated in the Act that such funds may be spent
    for the purpose of prosecuting violations of the Act up to the
    point of depletion of said fund but that no burden shall be placed
    upon the State or General Fund of the State for such prosecutions.

         "What I desire to know particularly Is just how far we are
    authorized to go in the payment of witness fees for attendants
    as witnesses on our cases. In other words, are we authorized to
    pay railroad fare, hotel bills 'and compensate them for the revenues
    lost by absence from their regular occupation?
Honorable T. J. Crowe, M. D., page 2 (o-4222)



          "Ina recent case witness fees along the lines mentioned
     amounted to anywhere from $20 to $40 per witness. These fees have
     been allowed by the Comptroller out of the contingent provisions
     of our budget. We have our budget divided into quarters of the
     year and so much money is allowed for each quarter. We are not
     authorized to overdraw for said quarter without a transfer through
     the Comptroller's department for funds with which to pay such ex-
     penses."

          Article kk@a,   Vernon's Annotated Civil Statutes, reads in
part as follows:

          "Sec. 1. It shall be the duty of all persons now lawfully
     qualified and engaged in the practice of medicine in this State
     as defined in Article 4510, Revised Statutes of 1925, or who shall
     hereafter be licensed for such practice by the Texas State Board
     of Medical Examiners, to be registered as such practitioners with
     the Texas State Board of Medical Examiners on or before the 1st
    day of January, A. D. 1932, and thereafter to register in like
     manner annually, on or before the 1st day of January of each suc-
     ceeding~year. Each person so registering with the Texas State
     Board of Medical Examiners shall pay, in connection with each an-
     nual registration and for the receipt hereinafter provided for,
     a fee of Two ($2.00) Dollars, which fee shall accompany the appli-
     cation of every such person for such registration. Such payment
     shall be made to the Texas State Board of Medical Examiners. Every
     person so registering shall file with the Texas State Board of
    Medical Examiners a written application for annual registration,
     setting forth his full name, his age, his Post Office address,
     his place of residence, the county or counties in which his certi-
     ficate entitling him to practice medicine has been registered,
     and the place or ~places where he is engaged in the practice of
     medicine, as well as the school of medicine to which he professes
     to belong and the number and date of his license certificate.



          “Sec. 3. All annual registration fees collected by the Texas
     State Board of Medical Examiners under this Act shall he placed in
     the State Treasury, to the credit of a special fund to be known
     as the 'Medical Registration Fund,' and all of the current revenues
    ,to'be derived,and placed to the credit of said fund during the
     two years ending August 31, 1933, are hereby appropriated and shall
     be,used by the Texas State Board of Medical Examiners, and under
     its direction, in the enforcement of the laws of this State pro-
     hibiting the unlawful practice of medicine, and in the dissemina-
     tion of information to prevent the violation of such laws and to
     aid in the prosecution of those who violate such laws.  The Texas
     State Board of Medical Examiners shall be authorized to employ
Honorable T. J. Crowe, M. D., page   3 (O-4222)




     ~and~~to.~c&pe~atefnom~such:;specialfund employees and such other
     -personsas may be found necessary to assist the local prosecuting
     officers of any county in the enforcement of all the laws of the
     State prohibiting the unlawful practice of medicine, and to carry
     out the other purposes for which said fund is hereby appropriated.
     Provided that all such prosecutions shall be subject to the direc-
     tion and control of the regularly and duly constituted prosecut-
     ing officers, and nothing in this Act shall be construed as de,priv-
     ing them of any authority vested in them by law.

          "In performing the duties devolved by this Act upon the Board.
     of Medical Examiners, said Board shall act through the Secretary--Lo-
     Treasurer of the Board of Medical Examiners. The Secretary-Treas-
     urer shall receive a salary to be fixed by the Legislature in its
     General Appropriation Bill for the performance of such duties under
     this Act, and shall make and file a surety bond in favor of the
     Texas State Board of Medical Examiners in the sum of not less than
     TeqThousand ($lO,OOO.OO) Dollars, conditioned that he will faith-
     fully discharge the duties of his office. Such salary shall be
     paid out of said 'Medical Registration Fund' and shall not be,
     in any way, a charge upon the general revenue of ,theState. The
     Texas State Board of Medical Examiners shall employ and.provide
     such clerks and employees as may be necessary to assist-the Sec-
     retary-Treasurer in performing his duties and in carrying out the
     purpose of this Act; provided, that the compensation of all par-
     sons authorized to be employed under this chapter, shall be paid
     only out of said 'Medical Registration Fund'. All disbursements
     from said fund shall be made only upon written approval'of the
     President and Secretary-Treasurer of the State Board of Medical
     Examiners and upon warrants drawn by the Comptroller to be paid
     out of said fund."

          We quote from Senate Bill Ho. 423, Acts of the 47th Legisla-
ture, 1941, Regular Session (which is the general appropriation bill
for the executive and administrative departments of the State govern-
ment), as follows:

                 "TEXAS STATE BOARD OF MEDICAL -S

          "SALARIES:
            1. Secretary-treasurer                $ 31300.00   $ 3,300.w
                Secretary                           1,200.OO     1,200.w
            ;: Investigator                        2,100.oo     2,100.OO
            4. Investigator                        2,100.00     2,100.00
            5. Traveling expenses, secre-
                tary and two Investigators          3mO.00      3,600.oO
            6. Bonds for employees                    loo.w       100.00
            7. Seasonal labor                         300.00      3OO.QO

                TOPAL - Salaries                  $12,700.00   $l2,700.00
                                                                             .   _




Honorable T. J. Crowe, M. D., page 4 (O-4222)



               _   MAINTENANCE AND MISCELLANEOUS

              8.   Rent, Directory, Printing,
                   Stationery, Telephone,
                   Telegraph, Typewriters,
                   Filing Cabinets, Addresso-
                   graph, Dictaphone, Sup-
                   plies, Mimeograph Supplies,
                   etc.                            $ 2,550.OO   $ 2,550.O

                   TOTAL - Maintenance and
                           Miscellaneous           $ 2,550.OO   $ 2,550.OO

                   GRAND TOTAL - Texas State
                   Board of Medical Examiners      $15,250.00   $15,250.00"

          This appropriation is for the years ending August 31, 1942,
and August 31, 1943, respectively.

          It is our opinion that the Texas State Board of MedicalEx-
aminers can legally make expenditures from and out of the "MedicalReg-
istration Fund" as is provided by the above mentioned appropriation
bill. There is no appropriation made for the payment of witnesses or
other expenditures mentioned in your letter by the Legislature. There-
fore, it is our opinion that the Texas State Medical Board is not au-
thorized to pay witness fees, railroad fares, hotel bills, or compensa-
tion to witnesses for the revenues lost by absence from the!.rregular
occupation or business.

          We are enclosing herewith a copy of our opinion No. 0-3633
with reference to the right of the State or a defendant to subpoena
and attach out of county witnesses in a misdemeanor case.

            Trusting that the foregoing fully answers your inquiry, we
are

APPROVED DEC 3, 1941                               Yours very truly

/s/Grover Sellers                            ATTORNEY GENERAL OFTEXAS

FIRST ASSISTANT
ATTORNEY GZNERAL                             By /s/ Ardell Williams
                                                    Ardell Williams
AW:GG:IM                                                  Assistant
                          APPROVED
ENCLOSURE                 OPINION
                         COMMITrEE
                         BY /s/ BWB
                           CHAIRMAN
