EA OKNEY ,GENERAL
OF TEXAS
January 22, 19.52
Hon. Robert S.~ Calvert
Comptroller of Public Accounts
Austin, Texas
Opinion No* V-1391
Re: Existence of any appropri-
ation to pay the mileage
and per diem of witnesses
from another state com-
pelled to attend a crimi-
Dear Sir: nal trial in Texas.
.
Your request for the opinion of this of-
fice is as follows:
“This department has received a
certificate from Judge Gb C. Olsen,
District Judge of the 109th Judicial
District of Texas, issued under the
provisions of H.B. Noa 659, passed by
the 52nd Legislature. This certifi-
cate orders this department to issue
warrants to three witnesses residing
in California to tender each of them
witness fees in advance of travel for
mileage and per diem in amounts stat-
ed in the certificate. The certifi-
cate states the witnesses are material
and are wanted in Reeves County in the
Case “State of Texas vs. John E. Welch’!,
in which the charge is murder with
malice aforethought. . . .
“This department requests an an-
swer as to whether there is money ap-
propriated for this payment? In the
event you find there is money appropri-
ated, would the certificate of the
judge be sufficient authority and con-
stitute a voucher for the issuance of
a warrant in advance of travel? In
the event your answer is in the affirm-
ative, to whom would the warrants be
Hon. Robert 5. Calvert, page 2 (V-1391)
issued and to whom would the warrants
be delivered? It has been the policy
of this department not to pay until
the service has been, performed.”
The applicable provisions of the Wniform
Act to SeaWe the,Attendanar of Witnesses from with-~
out the State in Criminal Proceedings” H.B. lfo. 659,
Acts 52nd Leg*, 195l ah. 441, p.~ 798; 1 rt. 486a, V.
C, C. P.), ar8 a5 fo il ows:
%*c. 4. If ,aperson in any state,
which by It5 laws has made provision for
coming persons wlthln its borders to
attend and testify .in criminal prosecu-
tions or grand jury lnvestlgations corn- ’
mm05b or about to commenae, ~,in this
State, is a’material witness in a pro&-
cutlon pending in a court of record in
this State, or in a grand jury ,lnvestiga-
tion which has cmencrd or is about to
, commence a judge of such aourt may issue
a certificate under the seal of the court
’ stating these fact5 and specifying the
number of days the witness will be requir-
ed. Said certificate may include a recom-
mendation that the,witness be taken into
lmmediate~custody and delivered to an of-
ficer of this State to assure his attend-
anaa in this State. This certificate
shall be presented to a udge bf a court :
of record in the comty ,,I n which the wit-
ness is found.
‘IIf the witae58 18 summoned to attend
. and testify in this State he shall be ten-
dered the sum of Ten Cents (log) a mile for
each mile by the ordinary traveled route to
and from the court where the prosecution is
pending and Five Dollars ($5). fore each day
t that he is required to travel and attend as
a witness. . . ln
After the certificate of the Texas court has
been issued, It is then forwarded to any Judge ~bf a
court of maorb in the county in which the witness is
found and the proceedings thereafter are under the pro- i
vision5 of Se&ion 3 of the Act, which provides:
Hon. Robert 8. Calvert, page 3 (v-1391)
“Sec. 3. If a judge of a court of
record in any state which by its laws
has made provision for commanding per-
sons within that state to attend and
testify in this State certifies under
the seal of such .court that there Is a
criminal prosecution pending in such
court 9 or that a grand jury investiga-
tion has commenced or is about to com-
mence, that a person being within this
State is a material witness in such pros-
ecution or grand jury investigation,
and that his presence will be required
for a specified number of days upon pre-
sentation of such certificate $0 any
judge of a court of record in the county
in which such person is, such judge shall
fix a time and place for a hearing, and
shall make an order directing the witness
to appear at a time and place certain for
the hearing.
“If at a hearing the judge deter-
mines that the witness is material and
necessary that it will not cause undue
hardship !o the witness to be compelled
to attend and testify in the prosecution
or a grand jury investigation in the oth-
er state, and that the laws of the state
in which the prosecution is pending, or
grand jury investigation has commenced or
is about to commence (and of any other
state through which ,!he witness may be re-
quired to pass by ordinary course of trav-
el) will give to him protection from ar-
res c and the service of civil and criminal
process, he shall issue a summons, with a
copy of the certificate attached, direct-
ing the witness to attend and testify in
the court where the prosecution is pending,
or where a grand jury investigation has
commenced or is about to commence at a
time and place specified in the summons.
In any such hearing the certificate shall
be prima-facie evidence of all the facts
stated therein.
“If said certificate recommends that
the witness be taken into immediate custody
.
-.
Hon. Robert S. Calvert, page 4 (V-139ij.
and delivered to an offi’cer of the re-
questing state to assure his attendance
in the requesting state, such judge may,
in lieu of notification of the hearing,
direct that such witness be forthwith
brought before him for said hearing; and s
the judge at the hearing being satis-
fied of the desirability of such, custody
and delivery;for which’determination
the certificate shall be prima-$acie
proof of such desirability may, in lieu
of issuing subpoena or summons, order
that said2witness be forthwith taken in-
to custody and delivered to an officer
of the requesting state.
:,.
testify as di-
rected in the summons,;‘he shall be punish-
ed in the,..manner provided for the punfsh-
ment of any witness who ~disobeys a sum-
mons issued from a court of record in this
State.” (Emphasis added)
Section 4, m, provides that after th.e
witness issummosed to attend and testify in Texas he
shall be tendered the sum of log a mile for each mile
by the ordinary travel route to and from the Court
where the prosecution is pending and $5.00 for each
dav that he is reauired to travel and attend as a wit-
ness, which witness fees and mileage,rmust be tendered
to the witness at the time the summons is served upon
him by some properly authorized person in the State
where the witness is: found.
You ask whether the Legislature has approprf-
ated money for the payment of the witness fees provided
for in Rouse Bill 659.
. .
Hon. Robert S. Calve&, page 5 (V-1391)
The only appropriation for witness fees
and mileage in criminal cases contained in the gen-
eral appropriations Act is to be found in subsection
12 (Judiciary Section--ComptrollerIs Department) of
Section 1,~ Article 1, House Bill 426 Acts 52nd Leg.,
19$l.,ch. 499, p. 1228, which is as h0110~s:
“For the Years Ending
August 31, August 31;
1952 1953
“12. Expenses of attached
witnesses, witness
fees and mileage al-
lowed witnesses in
felony cases where the
uitness lives outside
the county where the
case is being tried $kO,OOO.OO $40,000.OO”
Prior to 1951 appropriations in language iden-
tical with the above appropriation are to be found in
each of the general appropriation Acts passed by prior
Legislatures, except that the amounts appropriated vary
from year to year. In this connection it should be not-
ed that the amount appropriated for the fiscal year end-
ing August 31, 1952 was reduced by one-third from the
amount appropriated by tiie 51st Legislature in 1949
(H.B. 320, Acts. 5lst Leg., 1949, ch. 585, p. 1160).
The sums so appropriated have been subject to
disbursement in accordance with the provisions of Arti-
cles 475 to 481 inclusive, and Article 1036 of Vernon’s
Code of Crimina i Procedure, and have been confined to
witness fees and mileage claimed by witnesses subpoenaed
within the State of Texas under the provisions of Arti-
cle 1036, V.C.C.P. Att*y Gen. Op. No. O-429 (1942).
The general appropriations act was passed on
May 10, 1951, was approved June 28, 195l. and became ef-
fective on September 1, 195l.. House Bili 659 was passed
by the House on May 8 1951, and by the Senate on May 30,
1951. It was approve4 by the Governor and became effect-
ive June 15, 1951. Since House Bill 659 was passed sub-
sequent to the general appropriation bill, it is evident
that it was not the legislative intent to appropriate any
of the funds contained in subsection 12, Section 1 of Ar-
ticle 1 of the appropriation bill for the purpose of pay-
ing the mileage and per diem of the out-of-State witnesses
. .
~,
Hon. Robert S. Calvert, page 6 (V-1391)
to be summoned under the provlsions of House Bill
659. Therefore, the Legislature did not appropri-
ate nor is there available any money for the pay-
ment of such witness fees and mileage.
Your second question is as follows8
‘1. . . In the event ou find there
is money appropriated, woupd the certiff-
cate of t&e judge be sufficient author-
ity and constituteV,a voucher for the is-
-. suanc; of a warrant in advance of travel?
. . .
Although we have held that the Legislature
did not appropriate any money for the payment of such
witness fees and mileage, conceding, m, ,that
the funds appropriated for the expenses of attached
witnesses, witness fees and mileage allowed witnesses
in felony cases where the witness lives outside the
county where the case is being tried, would be avafl-
‘able for the payment of such witness fees and mileage
under the theory that witnesses residing outside of
the State where the case is being tried are included
within the category of witnesses outside the county
where the case is being tried,~ nevertheless the cer-
tificate of the Judge of the Di’strlct Court of the
109th Judicial ,Dlstrict of Texas Is in our opinion in-
sufficient authority for the issuance of a warrant fn
advance of travel.
In the enactment of House Bill 659 as a uui-
form act the Legislature made no provision for the
method o h securing the money which is required to be
tendered the out-of-State witness at the time of the
summons. However, the appLlcation of the statutory
provisions which govern the disbursement of witness
fees and mileage for out-of-county witnesses in felony
cases to the disbursement of the same funds for out-
of-State witnesses in felony cases9 would necessftate
the following procedure.
The officer of the out-of-State court of reo-
lord who serves the summons upon the witness who is found
within the jurisdiction of th.e out-of-State Court au-
thorizing the summons, would have to secure from the wit-
ness aq affidavit of his inability from lack of funds to
appear in obedience to said summons whereupon the offi-
cer executing then summons must prov i de the witness,, if
.
Hon. Robert S. Calvert, page 7 (V-1391)
the summons be issued in a felony case, with the
necessary funds or means to appear in obedience
thereto, taking his receipt therefor, and showing
in his return upon said summons, under oath, the
amount furnished to said witness. Article 447,
V.C.C.P.
The Judge of the out-of-State court of
record from which the summons was Issued if is-
sued in a felony case, Immediately upon ihe return
thereof must issue to such officer a certificate
for the amount furnished the witness, together with
the amount of his fees for’ exeouting the same, &I+
ing the amount of each item, which certificate
should then be forwarded to the Judge of the District
Court In Texas who issued the original certificate
for the attendance of such witness. Upon the appro-
val by the District Judge the certificate must be
recorded by the District Clerk In a book kept for
that purpose and then transmitted to the officer who
originally exeouted the summons, who must then for-
ward it to the Comptroller of Public Accounts to be
paid as other costs are paid in criminal matters.
Articles 478 and 1035, V.C.C.P. The balance of the
mileage and witness fees due the witness for and af-
ter his attendance before the Dietrict Court in
Texas would be paid In accordance with the provisions
of Article 1036, V.C.C.P.
Section 44 of Article III of the Constitu-
tion of Texas provides that the Le,gislature shall not
“grant, by appropriation or otherWise, any amount of
money out of the Treasury of the State, to any indi-
vidual, on a claim, . . . when the same shall not be
provided for by preexisting law: . . .‘I
,Assuming, without deciding that Rouse Bill
No. 659 is a valid and constitutiona, 1 prr-existi.lg
law, the claim of the individual. that is, the witness,
for the payment of mileage and wjtness fees provided
for therein would not accrue until the service of sum-
mons upon him and could only be paid in accordance
with the provisions of Article 1036, V.C.C.P.,, inas-
v&h as the Legislature Palled to make provision In
House Bill 659 for any other method of payment.
Hon. Rob?rt,S. Cdvkrt, page 8 (V-13911
The 52nd Legislature failed to appro- "
,priate any money for the payment of nit-
ness and mileage fees for out-of-State
witnesses to be summoned under the provi-
sions of House Bill 659 Acts 52nd Leg.
1951, ch. 44i, p. 798; Art. 486a, Vernonas
Code of Criminal Procedure.
Yours very truly,
APPROVED: PRICE DANIEL
E. Jacobson
Reviewing Assist&t
Charles D. Mathews
First Assistant
Assistant
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