                  AUSTIN.       %EXAS   98711
                            March 14, 1966


Honorable Robert S. Calvert             Opinion No. C-637
Comptroller of Public Accounts
Austin, Texas                           Re:   Whether an appropriation
                                              could be made for the
                                              payment of certain wit-
                                              ness fees, if the claims
                                              therefor are not filed
                                              in the Comptroller's Of-
                                              fice within twelve months
                                              from the date they became
                                              due, under the provisions
                                              of Article 35.27, Vernon's
                                              Code of Criminal Procedure,
Dear Sir:                                     and related questions.
        You have recently requested an opinion of this office
concerning Article 35.27, Vernon's Code of Criminal Procedure
and Attorney General's Opinion C-579, wherein this office held
that out-of-county witnesses subpoenaed in misdemeanor cases
in which confinement in jail is a permissible punishment, out-
of-county witnesses subpoenaed to appear in a habeas corpus
proceeding, out-of-county witnesses subpoenaed to appear at a
coroner's inquest, and an out-of-county witness subpoenaed to
appear before a court of inquiry, accrue witness fees under
Article 35.27, Vernon's Code of Criminal Procedure, but that
no money has been appropriated for the payment of such fees.
In this connection you have asked three questions as follows:
        1)   Is there pre-existing law for an appro-
             priation to be made at a later date to
             pay these witnesses?

        2)   If the witness fees accrued to witnesses
             under the above enumerated situations are
             not placed on file in the Comptroller's
             Office for payment and twelve months
             elapse from the due and payable date,
             would such witness fees be barred to such
             an extent that an appropriation could not
             be made for payment?
        3)   Who should submit the witness fee bill to
             the Comptroller's Office, the witness,


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Honorable Robert S. Calvert, page 2 (c-637)


           the district or county clerk, or the as-
           signee if one is made?
        In answer to your first question, it is the opinion of
this office that there is pre-existing law for an appropriation
to be made at a later date to pay such witness fees. Article
3, Section 44 of the Constitution of the State of Texas, pro-
vides:
          "The Legislature shall provide by law for
       the compensation of all officers, servants,
       agents, and public contractors, not provided
       for in this Constitution, but shall not grant
       extra compensation to any officer, agent,
       servant, or public contractors, after such
       public service shall have been performed or
       contract entered into, for the performance
       of the same; nor grant, by appropriation or
       otherwise, any amount of money out of the
       Treasury of the State, to any individual, on
       a claim, real or pretended, when the same
       shall not have been provided for by pre-exist-
       ing law; nor employ any one in the name of
       t.;..Etate,unless authorized by pre-existing

        Article 35.27, Vernon's Code of Criminal Procedure,   .,
constitutes pre-existing law which authorizes a legislative
appropriation. The Legislature has authority to appropriate
such funds as are necessary for the payment of such witness
fees which have accrued and have been incurred by virtue of
Article 35.27, Vernon's Code of Criminal Procedure.
        In answer to Question No. 2, it ia the opinion of this
office that such claims for witness fees must be filed with
the Comptroller's Office within twelve (12) month8 after the
same become due and payable. If the same are not filed with-
in such time period they are barred, and the Legislature would
have no authority to appropriate funds for their payment under
the aforementioned Article 3, Section 44, Constitution of the
State of Texas, as Article 35.27, Section 5, provides in part
as follows:
           "All such claims not filed in the office of
        the Comptroller within twelve months from the
        date same became due and payable shall be for-
        ever barred."




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        In answer to your third question, Article 35.27, Sec-
tions 3, 4 and 5 provide the procedure to be used in filing
such witness fees and is as follows:

           “(3)  Th e witness shall make an affidavit
        stating the number of miles he will have trav-
        eled going to and returning from the court, by
        the nearest practical conveyance, and the num-
        ber of days he will have been necessarily ab-
        sent in going to and returning from the place
        of trial; which affidavit shall be a part of
        the certificate issued by the clerk, copy of
        which is to be kept in a well-bound book. 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, continued or otherwise disposed
        of, certify that such witnesses were neces-
        sary in the cause. Witness, when attached
        and conveyed by sheriff, shall not be enti-
        tled to receive fees while in custody of such
        officer.
           "No witness subpoenaed or attached for the
        purpose of proving the general reputation of
        the defendant shall be allowed the benefits
        hereof, provided the trial judge may, in his
        discretion, allow pay to not more than two
        character witnesses for the defendant.
           "(4) The judge, when any such claim is
        presented to him, shall examine the same care-
        fully, and inquire into the correctness there-
        of, and approve same, in whole or in part, or
        disapprove the entire claim, as the facts and
        law may require; and such approval shall be
        conditioned only.upon and subject to the ap-
        proval of the State Comptroller, as provided
        for in Article 52.30; and said claim with the
        action of the judge thereon shall be entered
        on the minutes of said court and upon the ap-
        proval of said claim by the judge, the clerk
        if there be one, otherwise the judge, shall
        make a certified list of said claim, upon forms
        prescribed by the Comptroller, furnishing such
        information as required by him, and send the




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Honorable Robert S. Calvert, page 4 (C-637)


       same to the Comptroller at such times as he
       may require. No fee shall be required of the
       witness for the services herein provided. The
       service mentioned in the foregoing sentence
       shall include the issuance of certificate,
       swearing the witness to claim for witness fees
       and reporting to Comptroller, and witness shall
       not be required to pay any additional amount
       for the completion of the certificate.
          “(5)  The Comptroller, upon receipt of such
       claim and the certified list provided for in
       the foregoing section, shall carefully examine
       the same, and if he deems said claim correct,
       and in compliance withandauthorized by law in
       every respect, draw his warrant on the State
       Treasury for the amount due in favor of the
       witness entitled to same, or to any person such
       certificate has been assigned by such witness,
       but no warrant shall issue to any assignee of
       such witness claim.unless the assignment is made
       under oath and acknowledged before some person
       duly authorized to administer oaths, certified
       to by the officer and under seal. If the ap-
       propriatlon for paying such account is exhausted,
       the Comptroller shall file the same away and ls-
       sue a certificate in the name of the witness en-
       titled to same, stating therein the amount of
       the claim. All such claims not filed in the
       office of the Comptroller within twelve months
       from the date same became due and payable shell
       be forever barred."
        In answer to your third question, it is the opinion of
this office that all claims for witness fees may be submitted
to the Comptroller by the Clerk of the Court on behalf of the
witness, by the witness himself, by the assignee of the wit-
ness, or by anyone else authorized by the witness on behalf of
the witness.
                          SUMMARY
           (1) The Legislature has authority to ap-
        propriate such funds as ;are necessary for the
        payment of witness fees which have been in-
        curred by virtue of Article 35.27, Vernon's
        Code of Criminal Procedure.




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Honorable Robert S. Calvert, page 5 (c-637)


           (2) It is the opinion of this office that
        claims for witness fees must be filed with the
        Comptroller's Office within twelve (12) months
        after the same become due and payable. If the
        same are not so filed, they are barred, and
        the Legislature would not have authority to
        appropriate funds for their payment.
           (3)  All claims for witness fees may be sub-
        mitted to the Comptroller by the Clerk of the
        Court on behalf of the witness, by the witness
        himself, by the assignee of the witness, or by
        anyone else authorized by the witness on be-
        half of the witness.
                              Yours very truly,
                              WAGGONER CARR
                              Attorney General of Texas


                              By:                   %&A&!
                                    Assistant Attorney General


APPROVED:
OPINION COMMI'M!EE
W. V. Geppert, Chairman
John Reeves
Pat Bailey
Gordon Houser
Robert E. Owen
APPROVED FOR THE ATTORREY GEWERAL
By: T. B. Wright




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