THE~ATTORNEY GENERAL
OP TEXAS
PRICE DANIEL
ATTORNEYGENERAL
August 24, 1948
Hon. Alfred M. Clyde Opinion No. V-667
District Attorney
Fort Worth, Texas Re: The legality of the
payment of travel ex-
penses of witnesses
subpoenaed in a ae-
penaencg case.
Dear Sir:
Reference is made to your recent request,
vhlch reads, in part, as follows:
"We have several dependency cases
pending in the Civil Courts of Tarrant
County in which the Chief Probation Of-
ficer has filed an action In the name of
the State to declare the children neg-
lected and dependent children ana to
Puakethem wards of the Court in order
that they may be protected In accordance
with the statute8 of this State.
"In a recent case e e . in the 17th
District Court, Tarrant County, Texas, it
was necessary to subpoena a number of wlt-
nesses from counties surroundingTarrant
County 6 e , The.above mentioned cause
was held on July.29, 1948, ana at the com-
pletion of the hearing, the subpoena with
a request for traveling expenses vas pre-
sented to He. Levis D. Walli Jr,, District
Clerk of Tarrant County, Texas. Payment
vas refusdd on the basis that under the
lava of Texas there are no provisions for
paying the fe,es,ofwitnesses except,in
criminal casks. In oraer,to adequately
prove the allegationsmade In our petition
It was necessary that the above xiamed wit-
nesses appear.
"The Proseoutionaf our penalng cases
will depend largely upon the statements of
Hon. AlfpkaM. Clyde, page 2 (V-667)
witnesses who must be Subpoemea from aur-
pounalnr:counties,but we are reluctant to
issue such subpoenas unless there is some
assurance that the witnesses will be reim-
bursed for their traveling expenses. I
would appreciate an Immediate ruling in
this matter”ln order that I may know how
to proceed. (Emphasisaaaeaj
Article 2338&l, Section 13, V. C. S., pro’
vld38, in part, as follows:
"The Juage may conauct the hearing
In an informal manner ana may adjourn the
hearing from time to time. In the hear-
ing of any case the general public may
be excluded. All cases Involving chil-
dren shall be heard separatelyana apart
from the trial of cases against adults.
"If 10 jury is demanded, the Judge
shall proceed with the hearing. When the
proceeding Is with a jury, the verdict
ahall state whether the,juvenlleis a
9&elinquentchild' within the meaning of
this Act, ma if the Judge or jury finds
that the child is delinquent,OP otherwise
vithin the provialens of this Act, the
court may by order duly entered proceed
as follows8
"(1) place the child on probation OP
under supervisionin his own home or in
the cuetody~ofa relative or other fit
person, upon such terms as the court shall
determine;
“(2) commit the child to a suitable
public institutienor agency, er to a
suitable private instltmtionoreagency
authorized to care for children;OP to
place them in suitable family homes or
parental homes for an Indeterminateper-
iod of t&me, not extendingbeyond the
time the child shell reach the age of
twenty-one (21) years;
"(3) make such further dispositionas
the court may deem to be HOP the best in-
Eon. Alfred M+ Clyde, page 3 (V-667)
terest of the child, except a8 herein
othenriae povidod.
“Bo adjudloation upon the status
of sny child in the,juz4sdictlon of the
court shall operate to impose any of the
civil dlsabilitles ordl.narll~ i osed ‘by
aonvictlon,, nor shall 113~ child"ge deem*
ed a cridnal by reason of suqh.adjubi-
cation, tir shall such adjudioatlon be
eaed a oonviotion
Section 21 of the sane ktlole provides that
an appeal isay be taken by any par%yaggdeved to the
Court of Civil Appeals, and the case ry be carried to
the Supreme Court by wHt of error or upon certiiicate
as ln other civil cat3es.
- \
_~ --.
That a juvenllr proceeding is not ccinilul
.n nature is clear17 evidenced in the holdi= of the
:ourt L the o&se of %ndj v. Wilson, 142 Tex. 460,.179
i.H.(M P 269, wherein the court statedf
"tile Aot doer not umlePkks to OOD-
vict and $&wish 8 ahlld $0~’ thi oolrmis-
don of a Grimor s e Thr 0nlJ ISSW to
be. drterdned at the twirl is whether the
juvenile is a ‘delinquent child’ wlthln
the mean- of the Act.
r *
“it hre boa pepeatedlg held
by oth&%W, in oonstlruing acts siri- 1
lar.to the one under oonsideratlon, that
such statutes are not criminal in nature,-
‘-----and where their propose is for the.educa-
tion and refopmatlon of the mlnor, an&the
institution to whiah,he,or she ia 00&t-
ted Is hot penal lr nature. the denial of
~the zighi of ‘a jury~ trial ‘is not 8 viola-
tion~of the.Constltution . . .
"Ii the objects of the kt are to be
aooomplished, the pl”ooeedlngs’thoPounde~
must necessarily be olvil ir +ure, and
while ln sow respocte the orders, or the
judgment of the court r~ Uve the char-
acteristics of a judgment In a crl.d~l
. . ,_
Hon. Alfred M. Clyde, page 4 (V-667)
case, the customary rules of evidence in
civil cases, developed through long ex-
perience as essential in arriving at the
truth wlt4freasonable certainty, must be
followed.
It is apparent from the foregoing that such
cases are civil in their nature. In fact, one of the
main purposes for which the above Act was passed was
to remove the stigma of crime from the juvenile in
such cases.
After a careful investigation and search of
the statutes, we are unable to find any statute provid-
ing for or authorizing the payment of traveling expenses
of wltnesaes in such proceedings. Art. 2338-1, supra,
makes no provisions whereby such witnesses may be reim-
bursed for traveling expenses when brought before the
court in such hearings.
Since such cases are civil in their nature,
and in the absence of any authority to compensate such
witnesses, it is our opinion that such witnesses may
not be reimbursed for traveling expenses. Although the
officers may encounter extreme difficulty in obtaining
witnesses in such proceedings, nevertheless the duty of
supplying such compensation rests exclusively with the
Legislature.
SUMMARY
Witnesses subpoenaed in juvenile de-
linquency cases may not be reimbursed for
traveling expenses under presently existing
statutes.
Yours very truly,
APPROVED: , ATTORNEY GENERAL OF TEXAS
BY
RNRY GENERAL
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