lion6 Tom C. King                           Opinion NO. O-2465
stat@ Auditor       and Efficiency         Ret      Is it optional     with the em-
Expert                                      floyee ~“0 choose either        source
kiustln,~ Texas                               the departmental      appropriation
                                            for traveling      expenses,    or the
                                            statutory    mileage    and witness
                                            fee) from which to be reimbursed?
Dear Sir:                                   And~related     questions.
               Your recent   request      for an opinion   of this Department
on the     questions   as are herein        stated has been received.
               We quote    from your     letter       as follows:
             “The current   Departmental   Appropriation     Bill de-                  :
      clares    in Section2    (under the-head,     *Traveling    Ex-
      penses$ 1 I
              l’;k~y State     official     or employee entitled          to trav-
      eling.expenses        out of State      appropriations        herein    made,
      who is legally        or officially       required     to be present       at
      the trial       of any State      case,   shall    not claim traveling
      expenses      from the State and also from the Court wherein
      said case is pending.             If by oversignt,        duplicate     claims
      are filed       for said traveling        expenses     and collected,
      then said officers          or employees       shall   reimburse      and re-
      fund to the State         Treasurer     an amount equal to the re-
      spective       amount collected       under such witness         fee and
      mileage      claim. t
                “For the proper       construction        of this   clause   your
         opinion    is respectfully       requested       as follows:
              “1.    Is it optional     with      the employee to choose el-
         ther source     (the departmental        appropriation      for travel-
         ing expense,.or     the statutory        mileage     and witness   fee)
         from which to be reimbursed?
                “2,   If the mileage and expense       allowance      as com-
         puted-under      the terms of the appropriation       bili   should
         be greater     than as computed under the statutes         relating
         to aourt    costs,   would the former measure      be appropriate
         for the claim of a state      employee?
Hon.    Tom C. King,     page    2   (O-2465)

                “3. In the case of a duplication,          is the refund
        to be.made.dlrect      to the State    Treasurer,     so as to be
        credited     to the traveling-expense      account   of the de-
        partment     with which the employee is connected;         or,
        through    the court in which the trial        was had, thus op-
        erating    as a credit    to the costs    of the case, or as a
        revenue    ltem?l’
              Article     1036, Code of Criminal           Procedure,      reads     in
part,    as follows:
                “Any witness      who may have been recognized,             sub-
        poenaed or attached,            and given bond for his appearance
        before     any court,     or before        any grand jury,      out of the
        county of his residence              to testify      in a felony   case,
        and who appears        in compliance         with the obligations        of
        such    recognizance      or bond, shall be allowed his actual
        traveling      expenses,     not exceeding         four cents per mile
        going to and returning             from the court or grand jury,
        by the nearest        practical        conveyance,     and two dollars
        per day for each day he may necessarily                   be absent from
        home as a witness         in such case.
                llWitnesses     shall    receive     from the State,     for attend-
        ance upon district          courts      and grand juries     in counties
        other than that         of their      residence,    in obedience     to sub-
        poenas issued under the provisions                of law their      actual
        traveling      expenses,      not exceeding      four cents per mile,
        going to and returning             from the court or grand jury,           by
        the nearest       practical      conveyance,     and two dollars       per
        day for each day they may necessarily                 be absent from
        home as a witness,          to be paid as now provided           by law; . ..I’
               Section    3 of the above mentioned            article     provides        that:
                “Before the close of each term of District                   Court,
        the witness      shall    make an affidavit         stating     the number
        of miles he will have traveled              going to and returning
        from the court,        by the nearest       practical       conveyance,      and
        the number of days he will have been necessarily                      absent
        in going to and returning             from the place of trial;          which
        affidavit      shall be filed       with the papers         of the case.
        No witness      shall    receive     pay for his services          as a wit-
        ness in more than one case at any one term of the court.
        Fees shall      not be allowed to more than two witnesses                   to
        the same fact         unless     the judge before whom the cause
         is tried    shall,    after     such case has been tried,           contln-
        ued, or otherwise          disposed     of, certify      that such wit-
        nesses    were necessary         in the cause.      . .‘I
 Hon. Tom C. King,? page          3    (O-2465)

             A witness  to be entitled  to the compensation   :IJ pi’~~b-
 vided by .A?$icle 1036 must be legally     subpoenaed  hy th? ~‘.~.::r’;
 before he,-Is entitled   to such compensation.
                It is well settled        that no public       official       is entitl,;l
 to rece’ive.and      retain     any fees or compensation           unless      there    is
 a provislon~. made by the legislature             giving the same to him. See
 the case of ‘McCalla vs. City of Rockdale,                  246 S.W. 654; Duclos v.
 Harris    County, .298 S.W. ,417and authorities               cited     therein.      Along
 the same line,       the courts      have held,that       the legislature          may
 provide     for the allowance        of expenses      incurred~ by an officer             in
 addition     to the compensation         fixed by law.        Terre11      vs. King,
 14 S.W. (2d) 786. Also see the Article                   3897'Vernon’s         Annotated
 Civil    Statutes,     and.,the   authorities     cited thereunder           pertaining
 to the ,filing      of expense accounts        of various       officials.
              In the case of Lay vs. State,       202 S.W. 729, the ques-
  tion as whether      a salaried  pol.iceman was entitled    to his per
  diem under the old bticle~       1137b, Code of Criminal      Procedure,
  (now repealed).       The court,  in this case,   after  holding    this
’ article   applicable    only to ‘felony cases and not to the case vn-
  der consideration,      which was a misdemeanor,     used the following
  language :
                 ‘1 . . There being no difference           with reference
          to misdemeanor       c’ases as to the character      of witnesses
          whether   officers      or not, the officer     would come withi;
          the general     category,     as we understand    the law, as wit-
          ness.    His   official    character,   so  far  as  that proposi-
          tion is. concerned,       would make no difference.       . .‘I
               Under the case of Lay vs. State,                 supra,     it seems that
 the official      character     of the witness’ makes no difference                  as to
 the perdiem,      where the statutes            do not specifically          draw a line
 between the officers          as witnesses        and ordinary       ‘witnesses.       Arti-
 cle 1036, Code of Criminal            Procedure,       -supra,     the present      statute
 providing     fees and mileage        for out-of-county           witnesses      in felony
 cases,    does not’make      this    distinction.          It has long been the
 Departmental      construction       of the Comptroller          I s off ice that State
 Highway Patrolmen        are entitled        to mileage       and the Two Dollars           per
 diem as out-of-county          witnesses        in a felony      case in the court and
 before    the grand jury investigating              the felony.         However,      such
 Highway Patrolmen        receiving      mileage     fees and Two Dollars            per diem
 from the~~court are not entitled                to collect     the mileage       fee and
 the Two Dollars       per diem and also the traveling                  expenses     allowed
 by the general       appropriation        bill.
               In this     connection we want          to point out that if an of-
 ~ficer    or employee     is duly subpoenaed          in a felony case in which
Hon.   Tom C. King,      page     4     (O-2465)           -.


he is not officially   connected      or has rendered   no official     serv-
ice, he would not be entitled       to claim the traveling      expenses    as
allowed by the general    appropriation     bill,   but would be entitled
to claim the compensation     as provided    by Brtlcle   1036, supra.
                On the other hand where an officer          or state     employee
is subpoenaed        as a witness    before   the court In a felony        case or
a grand jury investigating           a felony     in a county other than that
of his residence         where such officer       or employee is or has been
officially       connected    with the case or has rendered          any official
service       and has performed     some official     duty in connection       there-
with       such officer    or employee may claim mileage          fees and the
per Aiem as allowed by Article             1036, supra, or he may claim the
traveling       expenses   as allowed by the general        appropriation      bill;
however,       he cannot claim both the statutory          mileage    and witness
fee and the traveling          expense allowed,      but may claim either         at
his option.
               We think that the answer to your first          question     ‘neces-
sarily     answers your second question        as it is optional      with the
employee to choose either          the departmental    appropriation       for
traveling      expenses   or the statutory    mileage   and witness      fees from
which to be reimbursed         under the conditions     above stated,        and
that    it would be appropriate        for the employee to choose either.
However,      as above stated,     it is to be noted that if the officer
or employee       is subpoenaed    only as a witness    and has no official
connection      with the case, he could claim only the compensation
as allowed by Article         1036.
              In answer to your third          question,     you are respectfully
advised   that if the per diem and mileage               under Article      1036, su-
pra, and the traveling         expenses     as allowed by the general            appro-
priation    bill  are collected,       then such State        employees    would be
required    to reimburse      and refund to the State          Treasurer     an amount
equal to the respective          amount collected        as such witness       fee and
mileage under Brticle         1036, supra.       We believe      that under Section
2 of the Departmental         Appropriation      Bill,    above quoted,      that this
refund would be made direct          to the State        Treasurer     and that the
same would be credited         to the fund appropriated            for the purpose
of compensating      out-of-county       witnesses      subpoenaed     in felony cases
before   the court or before        a grand jury investigating            a felony
case.
              Trusting     that       the   foregoing   answers   your   inquiry,   we
 are
APPROVEDJUL 8, 1940               Yours very truly
Js/ G1enn.R. Lewis                ATTORNEYGENERALOF TEXAS
(Acting)  ATTORNEYGENEZU OF TEXAS B~d$~ ,",,":~~m~~'~~~~~~;nt
APPROVED: OPINION COMMITTEE.
BY:       ‘BWB, CHAIRMAI~
AW,ew:wb
