.- ,
R-265
NE
TEXAS
Hon. Gecrge H. Sheppard Opinion No. V-125
Comptroller of Public Accounts
Austin. Texas Re: Whether claim for witness
fees earned in 1941 under
facts stated are barred
from payment.
Dear Mr. Shcppardz
Your letter of recent date requesting our opinion relative
to the above captioned matter reads as follows:
“In connection with a claim for witness fees filed
in this department, tie construction of the following
language in Article 1036, C.C.P., is involved:
““All.such claims not filed in the office of the
Comptroller within twelve (12) months from the date
same besome due and payable shall be fortver barred.’
“The fact, situation before us is as follows: A
witness frem a foreign country was duly served by
subpoena issued in 1941 to appear in court in Corpus
11 Uhristi in 1941. The witness in obedience to said sub-
poena appeared at court in 1941 buffailed to make af-
,_. . fidavit and abtam his certificate from the Clerk ef the
Court .at the term in which he appeared. NOW, five
years later, he appe’ars and makers the affidavit of his
,,” I services, and the Clerk issues his certificate showing
the amount of mileage and per diem the wilmess is en-
titled to.
“Is this ‘department authorized te issue warrant
in payment of this certificate, same showing the action
of the Judge thereon as entered in the minutes of said
,,.., Court as of this date but relating back to the term of
.
l .
count, at which the witness sarvad?
“I ‘shall thank you to advise this department at
your earliest convenience as to whether or not limi-
‘,: tatienhas run against this claim.”
Ar,tfBle 1036, C.C.P., as amended Acts 1941, 47th Leg.,
Page 688 (effective June 2, 1941) provides for payment by the State
.
:.
Hon. George H. Sheppard, Page 2 Opinion No. V-125
of witnesses summoned out of the county of his residence in felony
cases. Sec. (3) thereof reads, in part, as follows:
“The witness shall make an affidavit stating the
number of miles he will have traveled going to and
returning from the Court, by the nearest practical
conveyance, and the number of days he will have been
necessarily absent in going to and returning from the
place of trial; which affidavit shall be a part of the
certificate issued by the clerk, copy of which is to be
kept in a well-bound book.”
Sec. (4) reads, in part, as follows:
‘“The District or Criminal District Judge, when
any such claim is presented to him, shall examine the
same carefully, and inquire into the correctness there-
of, and approve same, in whole or in part, or disap-
prove the entire claim, as the facts and law may re-
quire: and such approval shall be conditioned only upon
and subject to the approval of the State Comptroller,
as provided for in Article 1035 of the Code of Criminal
Procedure; and said claim with the action of the Judge
thereon shall be entered on the Minutes of said Court;
and upon the approval of said claim by the Judge, the
Clerk shall make a certified list of said claim, upa
forms prescribed by the Comptroller, furnishing such
information as required by him, and send the same to
the Comptroller at such times as he may require, for
which service the Clerk shall be entitled to a fee of
Fifty (50) Cents which shall be paid by the witness.”
Sec. (5) reads, in part, as follows:
“The Comptroller, upmn receipt 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, * * *- All such claims
not filed in the office of the Comptroller within twelve
(12) months from the date same become due and pay-
able shall be forever barred.
In order to answer your inquiry we only have to determine
when this claim for witness fees became “due and payable.’
It is evident that this claim was due and payable either at
the time the witiss was excused by the Court from further attend-
ance, or at the time the witness made the affidavit, secured his
Hon. George H. Sheppard, Page 3 Opinion No. V-125
certificate from the Clerk and the approval of the Trial Judge.
“The word ‘due, ’ in its ordinary sense, means
that which is justly owed;, that which law or justice
requires to be paid or done.” Words and Phrases,
Vol. 13, P. 442. Griffith Y. Speaks, 63 S.W. 465.
The word “due,” considered by itself, has many definitions.
Bouvier defines it, in its first and broadest sense, as that which is
just and proper, and, in another and less general sense, as “what
ought to be paid; what may be demanded.” Webster gives its defi-
nition, se far as applicable to, the matter under consideration, in
the following order: “owed, as a debt; that ought to be paid or’ done
to or for another; payable; owing and demandable; suitable.”
“The word ‘payable’ is a descriptive w&d, mean-
ing “capable of being paid; suitable to be paid; admit-
ting or demanding payment; justly due: legally enforce-
able.‘*
Words and Phrakes, Vol. 31, P. 458. First Na-
tional Bank v. Greenville National Bank, 19 S. W. 334,
84 Tex. 40, citing Web&r’s Dictionary.
The services,as a witness were’ fully rendered at the time
of discharge. The certificate provided for was merely evidence of
the service,, which the State required before it would issue its war-
rant in payment,. The witness could not make the affidavit provided
for until his discharge as a witness, in that the facts necessary to
be sworn to were not ascertainable until that time. At the time of
discharge, such witness fees were provable by complyin with the
requirements of said Article 1036, C.C.P.
That portion of Article 1036, C.C.P., quoted in your let-
ter of inquiry has not been, as far as we are able to determine, con-
strued by the courts. Hewever, in an analaogous situation the Court
in Staunton V. Frovident Life and Accident Insurance Company; 42
N.E. (2d) 687, in construing the word payable as used in a life in-
sur8nce policy, ‘held th8t although the insurance company, under
the terms of the policy, was not required to pay the insurance
money until proof of death had been made, the insurance was pay-
able at the time ef the death of the insured. The facts in that case
disclose that the insurance was on,the life of the huabmd. He shot
his aella and immediately killed himself. His wife survived him by
about one hour. The insurance policy contained the following pro-
vision:
“If ther,e be no designated beneficiary surviving .
at the time any benefit shall become payable to the
beneficiary, then such benefit shall be payable to the
Hon. George H. Sheppard, Page 4 Opinion No. V-125
executors or administrators of such employee.”
.
The Court in rendermg its decision relative thereto used
the following language:
“The defendant claims that the insurance was not
‘payable’ until proof of death had been made to the com-
pany, and, assuming Mr. Stump died first, it wouldhave
been impossible for rubh proof te have been made by
Mrs. Stump during the short time she lived after his
death, hence when proof was made and the money was
‘payable, ’ there was no ‘designated beneficiary surviv-
ing’ and it was payable to her as administratrix of Mr.
Stump’s estate; The quoted provision does net have
that effect. The life insurance money Was ‘payable’ on
the death of the insured, and the right of the benefici-
ary to it accrued t%en, although the actual pameat of
the money would not be made until abe insurer was in-
formed and satisfied that the insured was dead. The
latter requirement is for the benefit of the insurer.”
Upon like reasoning we hold.‘that then claim for’wltnees
fees was due and payable in 1941, at the time the witness was ex-
cused from further attendance, and that the right of the witness
to such fees accrued then, although the warrant would not issue
for payment thereof until the witness had furnished to the Comp-
troller the proper approved certificate satisfying the State that
the service had been rendered. This requirement, like the *proof
of death,” was for the benefit of the payor. Such delayed claim
was barred from payment by the State in that it was not filed in
the office of the Comptroller ~within twelve months from the date
same became due and payable.
SUMMARY
A claim for witness fees becomes due and payable
at the time the witness is axcused by the court from
further attendance, and such claim is forever barred
fre payment -less it is filed in the aftice mf the
Comptroller within twelve months from that time. Sec.
5, Art. 1036, C.C.P.
Very truly yeurs,
APPROVED
APR 5 1947 ATTGRNEYGENERALOF TEXAS
ATTQRNEYGENERAL W. V. Gsppert
OF TEXAS Assid8nt
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