Untitled Texas Attorney General Opinion

- R-452 THEATTORNEY GENERAL OF-TEXAS June 10, 1947 Honorable George B, Sheppard Comptroller of Public Accounts Auatfn, Texas Opinion No, V-240 Re: Whether Comptroller should ls- t3ue wwrant in payment of wlt- ness cartlfloate under facts stated Dear Sir: Your lktter requesting our oplnlon relative to the above-captioned matter reads,, ln part, as follows: “A subpoena was issued ouC OS the Crlmtnal District Court of Bexar County, Texhs, in the case of State of Texas vs. Rouard Baylor - 49202, for Hr. Johnny Lott and ~8s dlreated and delivered to the SWlSS of Tarrant County to be served on HP. L&t. At the time the 3herlSS oS Taprent County received the subpoena, &. Johnny Lott had removed to Galveston, and the subpoena was not served on hLm by the.SherlfS of Tarrant County. However, upon being informed bg the Federa, Nar- cotics Bureau that subpoena had been issued and was outstanding, Mr. Johnny Lott, sating upon this lnforrratlon,appeared before the CNmlnal Blstrlet Court OS Bexar County at San Antonlo, and the sub- poena was duly served on him there. "The Clerk of thg Crlmlnal Dlstrlct Court of San Antonio Issued a witness certlflcate to Hr. Johnny Lott, Including mileage and per,diem Prom Galvestcm County to San Antonio and return. "Ii~thls department authorlaad %o Issue war- rant in payment of the certlflcate?" The relevant provls¶.onnof Artlsle 1036, C, C. P,, as amended Acts 1941.,47th Mg.,, p. 688, Ch. 430, Sec. 1, read a8 Sollows: "(1) Any vltness who may &we born subpoenaed, or shall have been recognized OF 8tfached and gLven bond for .hlsappearance before any Court, OF before Honorable George H. Sheppard - Page 2 V-240 any grand jury, out of the county of'hls resi- dence, to testify in a felony case regardless of disposition of said case, and who appears in compliance with the obligations of such recog- nizance or bond, shall'be allowed Three (3) Cents per mile going to and returning from the Court or grand jury, by the nearest practical convey- ante, and Two Dollars ($2) 'perday for-each day he may necessarilg.be a.bsentfrom home as a wit- ness in such case; . . . . . 'Witnesses shall receLve from the State, for attendance upon District Courts and grand juries in counties other than that of their residence in obedience to subpoenas issued under the pro- visions of law Three (3) Cents per mile, going to and returning from the Court or grand jury; by the nearest practical conveyance, and Two Dol- lars ($2) per day for each day they may necessarily be absent from home as a witness to be paid as now provided by law; . . . '. , "(2) Witness fees shall be allowed only to I such witnesses as may have been summoned on the sworn written application of the State's attor- ney or the defendant or his attorney as provlded In Article 463, Code of Criminal Procedure, which sworn application must be made at the.time of the procuring of the subpoena, attachment for, or recognizance of, the witness. . . . ; ; "(4) The DLstrlct or Criminal District Judge, when any such claim is presented to him, shall examine the same carefully, and Inquire lnto~-the correctness thereof, and approve same, in whole or in part, or disapprove the entire claim, as the facts and law may require; and such approval shall be conditioned only~upon and subject to the approval of the State Comptr~oller,as provided for in Article lp35 of the Code of Criminal Pro- cedure;.. . . . _ "(5) The Comptroller, upon receipt of such claim and the cei+Tfied'list provided for in the foregoing section, shall.carefully examine the' same, and if he deems said claim correct; and in compliance with and authorlsed by law In every respect, draw'hls warrant on the State Treasury for the amount due in favor of the witness en- titled'to same.i ); .'; '::." Honorable George H. Sheppard - Page 3 V-240 Article 464, C. C. P. provid~esas follows:' "A subpoena Is served by reading the same in the hearing of the witness. The officer having the subpoena shall make due return thereof, show- ing the time and manner of service, if served, and, if not served, he shall show in hi8 return the cause of his failure to serve it; and, if the wftness could not be found, he shall state the diligence he has used to fina him, and what in- formation he has as to the whereabouts of the' witness." In construing the above Article 464, the Court in Ex Parte Terrell, 95 S. W. 537, held that a subpoena cannot be served on a witness by reading It over the telephone. In this case the witness did not appear and was fined for his disobedience. The Court ordered the witness discharged and held in effect that until the witness was duly served as provided by Art. 464, C. C.P., he was under no duty to ap- pear as a witness. Article 1080, C. C. P., reads, as follows: "No fees shall be allowed to a person a8 witness fees unless such person has been sub- poena&, attache6 or recognized as a witness in the case.' See also Stewart v. State, 44 S. V. 505. Based upon the above quoted statutes, asconstrued by the courts, it Is our opinion that the Comptroller is not au- thorized to issue a warrant in payment of the witness certi- ficate, which includes mileage and per diem from Galveston to San Antonio. However. if a new certificate is secured which only includes the per diem from the time the subpoena was actually served on the witness and his mileage from San Antonio to his home in Galveston, then you would be authorized to issue warrant in payment thereof. SUMMARY The Comptroller Is not authorized to issue a warrant to pay a witness certificate which in- cluded per diem and mileage traveled prior to the tlme a subpoena was served upon the witness. Ar- ticles 1036 and 1080, C. C. P. Honorable George H. Sheppard - Page 4 v-240 Yours very truly, ATTORNEY GENERAL OF TEXAS By s/W. V. Geppert W. V. Geppert Assistant WVG/lh/wc APPROVED: s/Price Daniel ATTORNEY GENERAL