OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Xonorable Charl& A. Toeoh
Dotmy Auditor
Hall ot Rsoords
Dallas, Texas
D. Anderson, or ths Veterans' Roapl-
n Waoo, Taxas, the mm of $36.00.
for murder. The fnots arc) eubstantlolly RQ followar
Edward 9. P&m was lndloted for the murder of one
Bllllan Lloyd Presley, rMoh'orime wan olle~ed to
have oaourrod on Koverr.ber 19. 1937. Tn the first
Aononble ChRTlsS A. '10ROh, Page 2
trial, the aoouscU was ulven the death penalty.
(see 126 3. X. (28)~ ,431). The reason set forth
by the court of Crlmlncl Appeals for the reversal
of said ceac was thnt oertaln lay witnesses were
allowed to testily oonoernlng the insanity ot the
aoouaed, (aec 9-e altatlon above set forth).
The case via5 reversed and rcmandcd, and a .5000na
trial vma had. After asoertalnlng that the only
defense would be that or insanity, and after the
aooused had plaocd sevcrnl .cxpcrt wltncsscs upon
the stand, lnoludlw Dr. Johnson of the San Antonio
State Dos,pltal, and others, the District Attorney
of Dallas County oallcd Dr. Sohwcnkenbcrg, an out-
standing aliens& and psyohfatrlst or Dallas, Texas,
Dr. Lcwls Silver of .Dcllao, Texas, end Dr. R. B.
Anderson or the Veterans’ ElosDltel at h’aoo, Tcxm,
as rebuttal witnesses, each of whom hsvc supported
by sworn statcfients their olaims for oompensatlon
in the followlnk( amouIitsa:
Dr. Sohwenkenbere; - $100.00
Dr. 8llrcr - $ 50.00
Dr. Anderson - 0 35.00
and they Gtato under oath thct suoh~ohargcs arc rcasou-
able for the services rendered. The District AttoT-
ncy has also made affldavlt that sooh cxpsnaea arc
reasonable and necessary.
The Dlstrlot Attorney he3 also m&c alloa-
tion for the paymant of blue ?rlnt ooats in the ap-
proximate eum of $ZS.OO, sod ohnrges for the ser-
vioes of a hnndwrltlne expert, to-wit: X. A. Tieaver,
la the sum of 875.00; aloo the charges for the tue-
ployment.ot an assoolated reporter on R habeas oor-
pus prooecdlq In the Criminal District Court in oon-
ncotion with the case ,of State v. E. R. Wyatt. He
was a con-resident of Dallas County, but 1s alleged
to have come to Dcllas and thrown e bomb into a resl-
dcnoe where his former assistant teeoher resided.
The trial of thla ease resulted in a SO-year sentcnee.
Upon the trial, it developed that the sald ITyatt denied
hio sipkturs to a number of stAtementa and letters',
and it mm ncoessnry to cxploy the said 7;. A. Yeaver
346
Honorable Charles A. Tosoh, ;Roze 3
in oonneotion therewith. Kyatt al80 denied mak-
ing oertaln etatementa ln th6 habeas oarpus pro-
ceetiin~, and it was neoosoary to have the testl-
many transoribed for rebuttal purjx~ses. 3%~. X. h.
Weaver has signed en aftldavit that the ohargea
for hls seniaes were reasonable, and the npplica-
tion filed by Mr. Patton states that the amount Is
reasonable end neo6mery. The 8am6 applies to the
reporter's bill in the sum of 615.00.
*Artiole 3912e. oeotion 19, eubeeotion (g) pro-
vldes as followsr
'@*In addition to other 6nm5 provided in this
seotlon,'the dfotrlat attorney or arinlnal distriot
attorney nay be allowed by order OS the Com~Issioners~
Oourt or hia ooutity such amount a8 said oourt may
deem neotsoary:to pay for, or ald in, the proper ad-
ninistration of’.. the duties of such ofttioe not to ex-
oeed lW Thousand rive Eundred t82,SOO.OOj Dollar8 in
any one oalendar pear: provided, that suah amounts a5
may be allo%~ed shall b.e al10weU n9on written ap?lioa-
tlon of suoh Ul5triot attorney or arinlnal district
attorney showing the neces5lty thararor, end provided
further that said Cotisoioners' Court may require
any other evldenoe that It may deem neoeseary to @how
the neoeaaxty for any such exoonditures, and that It5
Judgment in allwrlng or refusing to allow the same
shall be final. No payment therefor shall be made
except upon en itemized o?,oorn statement of ouoh ex-
penses filed in the manner provided in this seotion
for other expenses.'
*Mr. Patton, the Dlstriot Attorney of Dallas
County, has oomplled with sold artlole 8s to the said
p~rovlsions and the 0558 .nuI%bers, eta., and has also
aeonred afiidavite and sworn statements from the var-
ious olalrnante.
The Commiseioners' Court of Dallas Connty has
deollned to allow this claim, not that it 15 not a
just alelm, and should be paid, end wxld bu paid, if
legal, but on the ~rouml that the pay?oent thereof is
prohlblted under the recent holding of the Supreme
Court of Terns in the ease of Dallas County v. Crosth-
wait, not yet reported.
Honorable Charles A. Toaoh. ?fl~O 4
*Please &via8 me rrt your serlieaf possible
oon~eniono8 whether or Lot ths OomAaalonerts
Court 0s Dnllae County hea the legal right and
authority to alLow the ebovs olaima under t$e.pm-
vlalona of article 391Qe, aeo. 19, aubaeo. (3).
or onp other lcra of tho State of Texas.
Y'or your lnfometion, the Elatrlot Attorney
has not exoeeded the #?,500.00 liznitetion as sat
out In eubcootion (g) .”
In the obee of Oroathwalt v. 8ta&+ oertnln alleped
gasbling daviooa were seized by the dietriot attorney. Thg Dla-
triot Attorney of Dnllaa County employed a transfer oonpany to
heul the epuipxant to a plaoe of storage pending appliontlon,
by tpe Distriot Attorney, for ah order o,P destruotion. The
dray . e ohnrge maountsd to asme $54.90.
Y.
Tha District, Attorney properly mde hpplloation to
the Comiaaioneral Court for pnyrxnt of aaid ulaia aRainat tha
oounty. The Comdtmioaeral Colirt approved lt end provided for
payment out ol a fund set n5iGe puxuucnt to the proviaiona of
Artlole 39lce, aeatlon 19(g), Vbrnon's ¬ated Civil Set-
utes.
?'bo oounty ukitor, one John L. Croathvrdit, exer-
olsad hla prarogatlva or,d refused to reoognlze the olain on
the grouxd 0s irvrlidlty.
Tha Ccmi~tisaiou of A2pcala upheld, the nuditor’a poei-
tlan; stntlnfi a5 e reason, the feat that the law expreaely
plaars the duty to solze &lle& gaxbllne equipment upon the
peaoa offk?era, and not upon the LlaLriat Attorney nor hta of-
rio0. booordingiy, it viaa held bhnt said okaim ul~s not wlthln
the purview of hrtiole 3912e, J'eotlon lb(g), Vernon*8 hnnotated
ClvlZ Stetutas, which pov$bes that:
"(~1. Jn addition to other aunn provided in
thla sectfzn. tho district ettoms or orlixlnal
&ls.tricc attorney mey be allowed by order of the
?os.xfaslonera' Court of hla oounty suoh anount as
m court !r,oy deem necessary to rsy --
for, or aid
*r\aoent deoleion ol Seotion D of the Sox2isslon of
hpeals \rhi>h has not yet been ra~orted.
348
Eonorable Charles A. Toe&, Fc~,e 5
in, she crontr adminlstratlon of ths duties of
3 h offloe, not to exoesd l%o Thousand Bl
Hgdrsd (~2,500.00] Dollars in any one oalE:der
year; provided, that euch amounts as may be allowed
shall be alloued upon written appliaetlon oi such
district attorney or orlmlnel dlstriot attorney
showing the naoceslty therefor, and provldsd fur-
ther that said aotnzissloners* court may require
any other evldenoe that it may deem neoessery to
show the neoesslty for any auoh ergendltur’es, end
that its judgment in allowing or reruslng to allow
the 8ame ehall be final. No payment thereto?? shall
be made exospt upon en itamlzsd sworn statement of
euoh axpfx~ses filed 1~ the manor provided in this
seation for other expenses.** (Undereoorlng ours)
The Court In the Crosthwalt aase quoted that portion
of Artlole 3912e, aeotion 19(g), whloh is underlined, euprn,
and ~further, a aertaln portion or seotlon (1) or the- same
Artlola whioh la a.~ followsr,
“And euoh 0rfIoer~ shall be entitled to rile
oleime for and lssua warrants in payment or all
eotuel end nsoesssry expenses lnourrsd by him in
the oonduot of his offloe, euoh as etatlonsry,
stem@, telephone, trevellnq expensea, . . . end
other naosssary expe~ea~*
Then the Court found that:
93~ the llmitationo expressed in the next
above quoted portion or the statute the dlstrlat
attorney end ths oommlssloners oourt of Dallas
county were limited to the kind or axpendlturse
mentioned in eel6 statuta. Bince seiizura or &ucbl-
ing devises is the duty of peaoa officers and ‘snot
the c?uty of the dietriot ettorney and the statutes
overnlnf: the expenditures of the 6liiae~6Taistrio t
~~~~~~~o’~~~‘~~~‘~h’~~~t~~~. g;af$%i.
Ri 1
oounty we8 without authority to allow the expendl-
lures 88 a nsoessary expense of the office of dia-
.. .’
Honorable Charles A. Toaoh, Pags 6
I,I,
!I
.: trlot attorney oi Dallao County. Casey et al v.
aate. 289 6. b 420 \rrit r4tused) Therdore * the
ectlon of tte o&aleslonere aourt 1; al.lowltza tbe
alaira 4s e neocssarv emense of the 0rri04 0r dia-
triot attorney belaz without statutory authorltp 1s
14 Rovard et ux v. Rendcraon County llr3
*i?o (writ rerueed); Jeft-Davis co& v. %vk
et al, 192 S. U. 291 (writ rbfua4d~.n (Undersoor-
lng o&x).
_,'
The Casey ease, citedby the Court. in the above
quote& portlon ol lta aeolalon, held, in erreat, that the gen-
eral phrase "end other neoeeeary epzense" conprehended only -z
things or the sam kind or olass as those xor4 partfculerly I
and ap4olrloally eteted. Rrlerly, the rule oi elusdom generia *'
was app1ie.d. The psrtloularized expense8 mentlone~ are stat&-
cry, staxnps, telephone, end tmvellng expenses.
The rule 0r idu8443i3 Renbrla alenrly appllen to seo-
tlon (1); but it is the oplni on or this Department that the
oourt., in the Cmethweit deoislon, did not intend to iliigl-y
th4t the entire statute would be qualliled by that rule or ::i
: ‘.I'
statutory oonstruatlon. If that were true, thr express pur-
pose Or eeotlon (g) would b4 rcsnderad for naught. By its ,!,
very tems, seotlon (g) seeks~ to provlde~sums &i nddltlon to
thome pmvlded elsewhere in the statutes.
The Distrlot Attorney 1s required to represent the
State in orlmlnel proseoub~one. It la "his duty to do that
whioh u ieithful and vlgllirnt dlstrlot attorney would be ex-
peated to do, considering the magnitude and irr?portenoa or the
0864, and that nhloh,wus essential and neoeasery to the falth-
tul pertoamanae or hla Otrlolal duty.” Ir the Co#mlssioners*
Court deemed the expenses enumerated in your letter neoessary
or that they sided fn the proper edmlaietretlon of tha dls-
tr1ot attorney's dutlea than, 1I the other atetutory requlre-
ments have been mat, and you SO steto, we see no reason why
those expense items should not be allowed out or the $2,500.00
runa provided ror in seotlon (g),
This does not mean that a dlstrlot attornay rnnp uon-
tract to pay so-oalled experts any mars than othar witnesses,
exoept In those inetenoea where auoh wltneesas have had to ex-
pend efrort In order to qualiltp themselves as experts in a
pertlaulilar oa54.
Honorable Oherles A. Toeoh, Page 7
Trusting bb.at'the forsgofng fully an8weru Your
lnpulry, we remain
Youru very truly
ATTOR?C?XOENXRAL
OF TEXAS
WJF:BBB