    OFFICE   OF THE    AlTORNEY       GENERAL   OF TEXAS
                             AUSTIN




Xonorable Charl&      A.   Toeoh
Dotmy Auditor
Hall ot Rsoords
Dallas, Texas




                         D. Anderson,     or ths Veterans' Roapl-
                       n Waoo, Taxas,     the mm of $36.00.


     for murder.  The fnots arc) eubstantlolly    RQ followar
     Edward 9. P&m was lndloted for the murder of one
     Bllllan Lloyd Presley,  rMoh'orime    wan olle~ed to
     have oaourrod on Koverr.ber 19. 1937.    Tn the first
Aononble   ChRTlsS A. '10ROh, Page 2


     trial,  the aoouscU was ulven the death penalty.
     (see 126 3. X. (28)~ ,431).     The reason set forth
     by the court of Crlmlncl Appeals for the reversal
     of said ceac was thnt oertaln lay witnesses were
     allowed to testily    oonoernlng the insanity ot the
     aoouaed, (aec 9-e     altatlon    above set forth).
     The case via5 reversed and rcmandcd, and a .5000na
     trial vma had. After asoertalnlng        that the only
     defense would be that or insanity,       and after the
     aooused had plaocd sevcrnl      .cxpcrt wltncsscs    upon
     the stand, lnoludlw      Dr. Johnson of the San Antonio
     State Dos,pltal, and others,      the District   Attorney
     of Dallas County oallcd Dr. Sohwcnkenbcrg, an out-
     standing aliens&     and psyohfatrlst     or Dallas, Texas,
     Dr. Lcwls Silver of .Dcllao, Texas, end Dr. R. B.
     Anderson or the Veterans’ ElosDltel at h’aoo, Tcxm,
     as rebuttal witnesses,      each of whom hsvc supported
     by sworn statcfients    their olaims for oompensatlon
     in the followlnk( amouIitsa:
                  Dr. Sohwenkenbere;     - $100.00
                  Dr. 8llrcr             - $ 50.00
                  Dr. Anderson           - 0 35.00
     and they Gtato under oath thct suoh~ohargcs arc rcasou-
     able for the services  rendered.   The District AttoT-
     ncy has also made affldavlt   that sooh cxpsnaea arc
     reasonable and necessary.
           The Dlstrlot   Attorney  he3 also m&c    alloa-
     tion for the paymant of blue ?rlnt ooats in the ap-
     proximate eum of $ZS.OO, sod ohnrges for the ser-
     vioes of a hnndwrltlne expert, to-wit:       X. A. Tieaver,
     la the sum of 875.00; aloo the charges for the tue-
     ployment.ot an assoolated     reporter on R habeas oor-
     pus prooecdlq In the Criminal District        Court in oon-
     ncotion with the case ,of State v. E. R. Wyatt.        He
     was a con-resident    of Dallas County, but 1s alleged
     to have come to Dcllas and thrown e bomb into a resl-
     dcnoe where his former assistant      teeoher resided.
     The trial of thla ease resulted      in a SO-year sentcnee.
     Upon the trial,    it developed that the sald ITyatt denied
     hio sipkturs     to a number of stAtementa and letters',
     and it mm ncoessnry to cxploy the said 7;. A. Yeaver
                                                                         346



Honorable    Charles A. Tosoh,     ;Roze 3


     in oonneotion therewith.       Kyatt al80 denied mak-
     ing oertaln etatementa ln th6 habeas oarpus pro-
     ceetiin~,  and it was neoosoary to have the testl-
     many transoribed  for rebuttal purjx~ses.      3%~. X. h.
     Weaver has signed en aftldavit      that the ohargea
     for hls seniaes   were reasonable,      and the npplica-
     tion filed by Mr. Patton states that the amount Is
     reasonable end neo6mery.        The 8am6 applies to the
     reporter's  bill in the sum of 615.00.
             *Artiole  3912e.    oeotion     19, eubeeotion   (g) pro-
     vldes    as followsr
           '@*In addition to other 6nm5 provided in this
     seotlon,'the   dfotrlat     attorney or arinlnal distriot
     attorney nay be allowed by order OS the Com~Issioners~
     Oourt or hia ooutity such amount a8 said oourt may
     deem neotsoary:to       pay for, or ald in, the proper ad-
     ninistration   of’.. the duties   of such ofttioe   not to ex-
     oeed lW Thousand rive Eundred t82,SOO.OOj Dollar8 in
     any one oalendar pear: provided,         that suah amounts a5
     may be allo%~ed shall b.e al10weU n9on written ap?lioa-
     tlon of suoh Ul5triot       attorney or arinlnal district
     attorney showing the neces5lty        thararor,   end provided
     further that said Cotisoioners'          Court may require
     any other evldenoe that It may deem neoeseary to @how
     the neoeaaxty for any such exoonditures,          and that It5
     Judgment in allwrlng or refusing to allow the same
     shall be final.       No payment therefor shall be made
     except upon en itemized o?,oorn statement of ouoh ex-
     penses filed in the manner provided in this seotion
     for other expenses.'
           *Mr. Patton, the Dlstriot  Attorney of Dallas
     County, has oomplled with sold artlole    8s to the said
     p~rovlsions and the 0558 .nuI%bers, eta., and has also
     aeonred afiidavite  and sworn statements from the var-
     ious olalrnante.
            The Commiseioners' Court of Dallas Connty has
     deollned to allow this claim, not that it 15 not a
     just alelm, and should be paid, end wxld bu paid, if
     legal,   but on the ~rouml that the pay?oent thereof is
     prohlblted   under the recent holding of the Supreme
     Court of Terns in the ease of Dallas County v. Crosth-
     wait, not yet reported.
Honorable      Charles A. Toaoh. ?fl~O 4


              *Please &via8 me rrt your serlieaf possible
        oon~eniono8 whether or Lot ths OomAaalonerts
        Court 0s Dnllae County hea the legal right and
        authority to alLow the ebovs olaima under t$e.pm-
        vlalona of article  391Qe, aeo. 19, aubaeo. (3).
        or onp other lcra of tho State of Texas.
             Y'or your lnfometion,    the Elatrlot   Attorney
        has not exoeeded the #?,500.00 liznitetion    as sat
        out   In eubcootion   (g) .”

           In the obee of Oroathwalt v. 8ta&+ oertnln alleped
gasbling daviooa were seized by the dietriot attorney.        Thg Dla-
triot Attorney of Dnllaa County employed a transfer       oonpany to
heul the epuipxant to a plaoe of storage pending appliontlon,
by tpe Distriot   Attorney, for ah order o,P destruotion.     The
dray . e ohnrge maountsd to asme $54.90.
     Y.
           Tha District, Attorney properly mde hpplloation      to
the Comiaaioneral     Court for pnyrxnt of aaid ulaia aRainat tha
oounty.   The Comdtmioaeral    Colirt approved lt end provided for
payment out ol a fund set n5iGe puxuucnt      to the proviaiona of
Artlole  39lce, aeatlon 19(g), Vbrnon's &notated      Civil Set-
utes.

          ?'bo oounty ukitor,   one John L. Croathvrdit, exer-
olsad hla prarogatlva or,d refused to reoognlze   the olain on
the grouxd 0s irvrlidlty.
            Tha Ccmi~tisaiou of A2pcala upheld, the nuditor’a   poei-
tlan;  stntlnfi a5 e reason, the feat that the law expreaely
plaars the duty to solze &lle&        gaxbllne  equipment upon the
peaoa offk?era, and not upon the LlaLriat       Attorney nor hta of-
rio0. booordingiy,     it viaa held bhnt said okaim ul~s not wlthln
the purview of hrtiole    3912e, J'eotlon lb(g),   Vernon*8 hnnotated
ClvlZ Stetutas,   which pov$bes    that:
               "(~1.    Jn addition to other aunn provided in
        thla sectfzn.     tho district  ettoms  or orlixlnal
        &ls.tricc attorney mey be allowed by order of the
        ?os.xfaslonera'    Court of hla oounty suoh anount as
        m      court !r,oy deem necessary to rsy --
                                                 for, or aid


        *r\aoent deoleion ol Seotion D of the Sox2isslon of
         hpeals   \rhi>h has not yet been ra~orted.
                                                                      348




Eonorable   Charles A. Toe&,   Fc~,e 5


     in, she crontr adminlstratlon      of ths duties of
     3 h offloe,    not to exoesd l%o Thousand Bl
     Hgdrsd (~2,500.00]     Dollars in any one oalE:der
     year; provided,   that euch amounts as may be allowed
     shall be alloued upon written appliaetlon         oi such
     district  attorney or orlmlnel dlstriot       attorney
     showing the naoceslty    therefor,   and provldsd fur-
     ther that said aotnzissloners*     court may require
     any other evldenoe that it may deem neoessery to
     show the neoesslty    for any auoh ergendltur’es,      end
     that its judgment in allowing or reruslng to allow
     the 8ame ehall be final.      No payment thereto?? shall
     be made exospt upon en itamlzsd sworn statement of
     euoh axpfx~ses filed 1~ the manor       provided in this
     seation for other expenses.**      (Undereoorlng ours)
              The Court In the Crosthwalt aase quoted that portion
of Artlole     3912e, aeotion 19(g), whloh is underlined,   euprn,
and ~further,    a aertaln  portion or seotlon (1) or the- same
Artlola whioh la a.~ followsr,
             “And euoh 0rfIoer~ shall be entitled     to rile
      oleime for and lssua warrants in payment or all
      eotuel   end nsoesssry expenses lnourrsd by him in
      the oonduot of his offloe,      euoh as etatlonsry,
      stem@, telephone,     trevellnq   expensea, . . . end
      other naosssary expe~ea~*
            Then the Court found that:
            93~ the llmitationo  expressed in the next
      above quoted portion or the statute the dlstrlat
      attorney end ths oommlssloners oourt of Dallas
      county were limited to the kind or axpendlturse
      mentioned in eel6 statuta.     Bince seiizura or &ucbl-
      ing devises is the duty of peaoa officers     and ‘snot
      the c?uty of the dietriot  ettorney and the statutes
       overnlnf: the expenditures of the 6liiae~6Taistrio         t

      ~~~~~~~o’~~~‘~~~‘~h’~~~t~~~.               g;af$%i.
            Ri 1
      oounty we8 without authority to allow the expendl-
      lures 88 a nsoessary expense of the office    of dia-
.. .’




        Honorable      Charles A. Toaoh, Pags 6


I,I,
!I
.:             trlot  attorney oi Dallao County.      Casey et al v.
               aate.   289 6. b 420 \rrit r4tused)         Therdore * the
               ectlon  of tte o&aleslonere      aourt 1; al.lowltza tbe
               alaira 4s e neocssarv emense of the 0rri04 0r dia-
               triot attorney belaz without statutory       authorltp    1s
                  14    Rovard et ux v. Rendcraon County llr3
               *i?o       (writ rerueed);  Jeft-Davis   co&     v. %vk
                et al, 192 S. U. 291 (writ rbfua4d~.n        (Undersoor-
                lng o&x).
                                                                                  _,'
                       The   Casey  ease, citedby the Court. in the above
        quote& portlon ol        lta aeolalon, held, in erreat,   that the gen-
        eral phrase "end other neoeeeary        epzense" conprehended only          -z
        things or the sam kind or olass as those xor4 partfculerly                   I
        and ap4olrloally    eteted.    Rrlerly,    the rule oi elusdom generia       *'
        was app1ie.d.    The psrtloularized     expense8 mentlone~ are stat&-
        cry, staxnps, telephone,     end tmvellng     expenses.
                     The rule 0r idu8443i3  Renbrla alenrly appllen to seo-
        tlon    (1); but it is the oplni on or this Department that the
        oourt.,   in the Cmethweit deoislon,     did not intend to iliigl-y
        th4t the entire statute would be qualliled        by that rule or            ::i
                                                                                   : ‘.I'
        statutory    oonstruatlon.    If that were true, thr express pur-
        pose Or eeotlon      (g) would b4 rcsnderad for naught.   By its             ,!,
        very tems,     seotlon   (g) seeks~ to provlde~sums &i nddltlon to
        thome pmvlded elsewhere       in the statutes.
                    The Distrlot   Attorney 1s required to represent the
         State in orlmlnel proseoub~one.      It la "his duty to do that
         whioh u ieithful   and vlgllirnt dlstrlot   attorney would be ex-
         peated to do, considering     the magnitude and irr?portenoa or the
         0864, and that nhloh,wus essential      and neoeasery to the falth-
         tul pertoamanae or hla Otrlolal     duty.”   Ir the Co#mlssioners*
         Court deemed the expenses enumerated in your letter       neoessary
         or that they sided fn the proper edmlaietretlon       of tha dls-
         tr1ot attorney's   dutlea than, 1I the other atetutory     requlre-
         ments have been mat, and you SO steto,      we see no reason why
         those expense items should not be allowed out or the $2,500.00
         runa provided ror in seotlon (g),
                     This does not mean that a dlstrlot attornay rnnp uon-
         tract to pay so-oalled   experts any mars than othar witnesses,
         exoept In those inetenoea where auoh wltneesas have had to ex-
         pend efrort In order to qualiltp themselves as experts in a
         pertlaulilar oa54.
Honorable    Oherles    A. Toeoh, Page 7


            Trusting    bb.at'the   forsgofng     fully   an8weru Your
lnpulry,    we remain
                                                Youru very truly
                                        ATTOR?C?XOENXRAL
                                                      OF TEXAS




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