-

                                                 R-452



                THEATTORNEY              GENERAL
                         OF-TEXAS



                              June 10, 1947
    Honorable George B, Sheppard
    Comptroller of Public Accounts
    Auatfn, Texas           Opinion No, V-240
                              Re:   Whether Comptroller should ls-
                                    t3ue wwrant in payment of wlt-
                                    ness cartlfloate under facts
                                    stated
    Dear Sir:
            Your lktter requesting our oplnlon relative to the
    above-captioned matter reads,, ln part, as follows:
            “A subpoena was issued ouC OS the Crlmtnal
       District Court of Bexar County, Texhs, in the
       case of State of Texas vs. Rouard Baylor - 49202,
       for Hr. Johnny Lott and ~8s dlreated and delivered
       to the SWlSS    of Tarrant County to be served on
       HP. L&t.    At the time the 3herlSS oS Taprent
       County received the subpoena, &. Johnny Lott had
       removed to Galveston, and the subpoena was not
       served on hLm by the.SherlfS of Tarrant County.
       However, upon being informed bg the Federa, Nar-
       cotics Bureau that subpoena had been issued and
       was outstanding, Mr. Johnny Lott, sating upon this
       lnforrratlon,appeared before the CNmlnal Blstrlet
       Court OS Bexar County at San Antonlo, and the sub-
       poena was duly served on him there.
            "The Clerk of thg Crlmlnal Dlstrlct Court of
        San Antonio Issued a witness certlflcate to Hr.
        Johnny Lott, Including mileage and per,diem Prom
        Galvestcm County to San Antonio and return.
           "Ii~thls department authorlaad %o    Issue   war-
       rant in payment of the certlflcate?"
            The relevant provls¶.onnof Artlsle 1036, C, C. P,,
    as amended Acts 1941.,47th Mg.,, p. 688, Ch. 430, Sec. 1,
    read a8 Sollows:
            "(1) Any vltness who may &we born subpoenaed,
        or shall have been recognized OF 8tfached and gLven
        bond for .hlsappearance before any Court, OF before
Honorable George H. Sheppard - Page 2        V-240


    any grand jury, out of the county of'hls resi-
    dence, to testify in a felony case regardless
    of disposition of said case, and who appears in
    compliance with the obligations of such recog-
    nizance or bond, shall'be allowed Three (3) Cents
    per mile going to and returning from the Court
    or grand jury, by the nearest practical convey-
    ante, and Two Dollars ($2) 'perday for-each day
    he may necessarilg.be a.bsentfrom home as a wit-
    ness in such case; . . . . .
       'Witnesses shall receLve from the State, for
   attendance upon District Courts and grand juries
   in counties other than that of their residence
   in obedience to subpoenas issued under the pro-
   visions of law Three (3) Cents per mile, going
   to and returning from the Court or grand jury;
   by the nearest practical conveyance, and Two Dol-
   lars ($2) per day for each day they may necessarily
   be absent from home as a witness to be paid as
   now provided by law; . . . '. ,
       "(2) Witness fees shall be allowed only to I
   such witnesses as may have been summoned on the
   sworn written application of the State's attor-
   ney or the defendant or his attorney as provlded
   In Article 463, Code of Criminal Procedure, which
   sworn application must be made at the.time of the
   procuring of the subpoena, attachment for, or
   recognizance of, the witness. . . . ; ;
       "(4) The DLstrlct or Criminal District Judge,
   when any such claim is presented to him, shall
   examine the same carefully, and Inquire lnto~-the
   correctness thereof, 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 approval of the State Comptr~oller,as provided
   for in Article lp35 of the Code of Criminal Pro-
   cedure;.. . . . _
       "(5)  The Comptroller, upon receipt of such
   claim and the cei+Tfied'list provided for in the
   foregoing section, shall.carefully examine the'
   same, and if he deems said claim correct; and in
   compliance with and authorlsed by law In every
   respect, draw'hls warrant on the State Treasury
   for the amount due in favor of the witness en-
   titled'to same.i
                  ); .'; '::."
Honorable George H. Sheppard - Page 3         V-240


        Article 464, C. C. P. provid~esas follows:'
        "A subpoena Is served by reading the same in
    the hearing of the witness. The officer having
    the subpoena shall make due return thereof, show-
    ing the time and manner of service, if served,
    and, if not served, he shall show in hi8 return
    the cause of his failure to serve it; and, if the
    wftness could not be found, he shall state the
    diligence he has used to fina him, and what in-
    formation he has as to the whereabouts of the'
    witness."
        In construing the above Article 464, the Court in
Ex Parte Terrell, 95 S. W. 537, held that a subpoena cannot
be served on a witness by reading It over the telephone. In
this case the witness did not appear and was fined for his
disobedience. The Court ordered the witness discharged and
held in effect that until the witness was duly served as
provided by Art. 464, C. C.P., he was under no duty to ap-
pear as a witness.
        Article 1080, C. C. P., reads, as follows:
       "No fees shall be allowed to a person a8
   witness fees unless such person has been sub-
   poena&, attache6 or recognized as a witness in
   the case.'
        See also Stewart v. State, 44 S. V. 505.
        Based upon the above quoted statutes, asconstrued by
the courts, it Is our opinion that the Comptroller is not au-
thorized to issue a warrant in payment of the witness certi-
ficate, which includes mileage and per diem from Galveston
to San Antonio. However. if a new certificate is secured
which only includes the per diem from the time the subpoena
was actually served on the witness and his mileage from
San Antonio to his home in Galveston, then you would be
authorized to issue warrant in payment thereof.
                        SUMMARY
        The Comptroller Is not authorized to issue
    a warrant to pay a witness certificate which in-
    cluded per diem and mileage traveled prior to the
    tlme a subpoena was served upon the witness. Ar-
    ticles 1036 and 1080, C. C. P.
Honorable George H. Sheppard - Page 4        v-240


                              Yours very truly,
                           ATTORNEY GENERAL OF TEXAS

                               By s/W. V. Geppert
                                    W. V. Geppert
                                        Assistant

WVG/lh/wc
APPROVED:
s/Price Daniel
ATTORNEY GENERAL
