                     August 24, 1953

Hon. Rotart SL oalvert
Comptrollar of PI&UC Acoounts
Austin, Texas          .Opinlon NO. s-89
                          Rer 1, Authority of the Comp-
                              troller  to Issue warrant4 in
                              payment of wltneea feet3 ao-
                              signed to a county.
                              2. Aut,hority to Issue war-
                              rants for witness Pees,to, ang,.~
                              of the offio,ers   named in k&4-
                              cl& 380, Vernon's Penal Code,
                              when such officers    have pur-
Dear 1wr, Calvert:            chased such wit~nesa fee bIlla.
           Your request   for   our opinion   read0 in part a0
follows:
              "This Department has received a witness
      fee bill for fees 'aooruing to,a witness under
      the provisions    of Article  1036 C.C.P*    The
      wltneea apparently attempted to assign hi6
      witness fee account to Jeff Davis County,,
      which County paid the 'wltneas,the    full amount
      of hle witneerr fee aocount.     The Dleerlot
      Clerk of the County requests that a~Uarrhnt
      ;;e:asued    to the County for these witness
            .
            Yioulcl it be legal r0r this nbrttint
      to Issue a warrant to the County Par these
      fees?
            "Would It be legal for this Departmmt
      to issue a warrant for ritnass     feed to iucf
      o? the oflioer;s  named in Arelole    380 P,C. in
      lnstanoes when said oPflosrB have purohaBQd
      witness fee bills?"
                                                        .   1




Hon. Robert S. Calvert, page 2 (S-89)


          Section 5 of Article 1036, Vernon’s Code of
Criminal Procedure, provides in part as follows:
          "The Comptroller, upon reaeipt 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 with and
     authorized 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 war-
     rant shall issue to any assignee of such
     witness' claim unless the assignment is made
     under oath and~acknowledged before some per-
     son duly authorized,to administer o.aths,
     certified to by the Officer and under seal."
          It is noted that the attempted assignment of
the witness fee bill involved assigns the account to the
witness himself, and is therefore ineffective as an
assignment. Therefore, under the section of Article
1036 quoted above, the Comptroller would not be author-
ized to Issue a warrant in payment of such claim to any
person other than the witness himself.
          It is,probable that this assignment can be
corrected to show that Jeff Davis County Is the:,trueas-
signee,~as such appears to have been the Intent of the
parties, and the claim then again presented to your
office.
          In such event it is assumed that your first
question was Intended to inquire as to the legality of
payment after an assignment of such a claim to a county.
In this regard it is noted that the part of Section 5
above quoted authorizes an assignment "to any person."
          Article 1572, V.C.S., provides "Each co.unty.
which now exists or which may be hereafter established
shall be a body corporate and politic." Article 23,
V.C.S., provides in part, "The following meaning shall
be given to each of the following words, unless a dif-
ferent meaning is apparent from the context; 2. 'Person'
1   -




        Hon. Robert   S. Calvert,   page 3 (S-89)


        lncludea a corporatlonrn                     CorPun chI%lti v*
        Live  Oak Count                              tT     Cl A        1957) ;
        City of Taho                                8g,‘:i6   ::w:‘c?162
                                                    , 166 s .w. 470, 472

                   There being no Indication that the Legislature
        intended a more restrictive  meaning It follows that a
        county would be Included In the foregoing    phrase author-
        izing assignments “to any person”,   It is our opln,lon
        that if a valid claim for witness fees in a felony case,
        prop,erly assigned to Jeff Davis County, is presented
        within twelve monthe from the date same became due, It
        would be legal to Issue a warrant to said county for
        such fees.
                    Your seoond question Is, ‘Would It be legal
        for the Department to Issue a warrant for wltness~ fees
        to any of the officers     named In Article 380, P.C., In
        if;:“,;;$es when said officer8   have purchased witness fee

                    Article   380, Vernon’s   Penal Code, reads as
        follows:
                     “Any county judge, clerk or deputy clerk
               of any district  or county court, sheriff,     or
               his deputy, justice   of the peace or constable,
               who shall purchase or otherwise acquire from
               the party Interested   any fee or fees coming
               to any witness In any proceeding whatever,
               either before the district    or county court,
               or the court of any justice    of the peace,
               or before any coroner’8 Inquest,    shall b$
               fined not exceeding one hundred dollars.
                    The atatute involved Is very inclusive   and
        denounces those designated officers   who “purchase or
        otherwise aoquire from the party interested”     any such
        witness fees, and such purchase would bye Illegal    and
        void.    Texas Anchor Fence Co. y. City of ~SanAntonio,,
        71 S.W. 301 (T      Clv.App, 1902). This would include ao-
        quisltlon   In aiG*manner other than by lnheritanoe   or
                                                             -.   /




Hon. Robert S. Calvert,     page 4 (S-89)


operation of law.    Of course, this would Aot apply to .a
sheriff  or con&able advancfng funds to a witness in con-
formity with Article   477, Vernon's Code of Criminal
Procedure.   Sparks v. State, 42 Tex.Crim. 374, 60 S.W.
246 (1900).
           It follows therefore   that the Comptroller would
not 'be authorized to issue warrant,s to the officera   named
In Article  380, V.P.C.,  In Instances when such officers
have purchased wltneas fee bills.
                            SUMMARY
             The Comptroller is authorized to ls-
      sue a warrant to a county to pay a witness
      certificate   which has been properly assigned
      to such county.     Article 1036, V.C.C.P.
            The Comptroller is not authorized to
      issue a warrant for witness fees to any of
      the officers  named In Article 380, Vernon's
      Penal Code, when such officers  have Pur-
      chased witness fee bills.

                       8'            Yours very truly,
APPROVED:                            'JOHNBEN SHEPPERD
                                      Attorney General
J. C. Davis, Jr.
County Affairs,,Dlvislon
Willis E. Gresham                    BY
Reviewer.
                                                 Assistant
Robert S. Trottl
First Assistant
