Untitled Texas Attorney General Opinion

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 HA:vmb:mw :