Untitled Texas Attorney General Opinion

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