Honorable T. J. Crowe, M. D. Opinion No. 0-42z?
Secretary Re: Fees to witnesses for at-
Texas State Board of Medical Examiners tending misdemeanor cases
Dallas,Texas under the facts set Portb
Dear Sir:
Your letter of Bovember 19, 1941, requesting the opinion of
this department on the questions stated therein reads in part as fol-
lows:
"I am writing you to ascertain just how far the State Board
of Medical Examiners may go in payment of witness fees for attend-
ing misdemeanor 'cases.
"You of course know that we can not force the attendance of
a witness who is out of the county in which the trial is being
held. You are also aware that the State does not allow witness
fees in misdemeanor cases. In many cases in order to get a con-
viction it is necessary to bring witnesses from other counties
and sometimes from long distances in order to get satisfactory
evidence before the court to secure conviction.
"You are aware of course that the State Board deposits with
the State Treasury a special fund known as the Annual Registration
Fund for the purpose of prosecuting violations of the Medical Prac-
tice Act. It is said in the Registration Act that the Board may
spend such moneys as are available in the State Treasury in the
Special Registration Fund which as you know is collected from the
doctors of the State and deposited to the credit of the Secretary
of the Department of the Board for the prosecutions.
"It is further stated in the Act that such funds may be spent
for the purpose of prosecuting violations of the Act up to the
point of depletion of said fund but that no burden shall be placed
upon the State or General Fund of the State for such prosecutions.
"What I desire to know particularly Is just how far we are
authorized to go in the payment of witness fees for attendants
as witnesses on our cases. In other words, are we authorized to
pay railroad fare, hotel bills 'and compensate them for the revenues
lost by absence from their regular occupation?
Honorable T. J. Crowe, M. D., page 2 (o-4222)
"Ina recent case witness fees along the lines mentioned
amounted to anywhere from $20 to $40 per witness. These fees have
been allowed by the Comptroller out of the contingent provisions
of our budget. We have our budget divided into quarters of the
year and so much money is allowed for each quarter. We are not
authorized to overdraw for said quarter without a transfer through
the Comptroller's department for funds with which to pay such ex-
penses."
Article kk@a, Vernon's Annotated Civil Statutes, reads in
part as follows:
"Sec. 1. It shall be the duty of all persons now lawfully
qualified and engaged in the practice of medicine in this State
as defined in Article 4510, Revised Statutes of 1925, or who shall
hereafter be licensed for such practice by the Texas State Board
of Medical Examiners, to be registered as such practitioners with
the Texas State Board of Medical Examiners on or before the 1st
day of January, A. D. 1932, and thereafter to register in like
manner annually, on or before the 1st day of January of each suc-
ceeding~year. Each person so registering with the Texas State
Board of Medical Examiners shall pay, in connection with each an-
nual registration and for the receipt hereinafter provided for,
a fee of Two ($2.00) Dollars, which fee shall accompany the appli-
cation of every such person for such registration. Such payment
shall be made to the Texas State Board of Medical Examiners. Every
person so registering shall file with the Texas State Board of
Medical Examiners a written application for annual registration,
setting forth his full name, his age, his Post Office address,
his place of residence, the county or counties in which his certi-
ficate entitling him to practice medicine has been registered,
and the place or ~places where he is engaged in the practice of
medicine, as well as the school of medicine to which he professes
to belong and the number and date of his license certificate.
“Sec. 3. All annual registration fees collected by the Texas
State Board of Medical Examiners under this Act shall he placed in
the State Treasury, to the credit of a special fund to be known
as the 'Medical Registration Fund,' and all of the current revenues
,to'be derived,and placed to the credit of said fund during the
two years ending August 31, 1933, are hereby appropriated and shall
be,used by the Texas State Board of Medical Examiners, and under
its direction, in the enforcement of the laws of this State pro-
hibiting the unlawful practice of medicine, and in the dissemina-
tion of information to prevent the violation of such laws and to
aid in the prosecution of those who violate such laws. The Texas
State Board of Medical Examiners shall be authorized to employ
Honorable T. J. Crowe, M. D., page 3 (O-4222)
~and~~to.~c&pe~atefnom~such:;specialfund employees and such other
-personsas may be found necessary to assist the local prosecuting
officers of any county in the enforcement of all the laws of the
State prohibiting the unlawful practice of medicine, and to carry
out the other purposes for which said fund is hereby appropriated.
Provided that all such prosecutions shall be subject to the direc-
tion and control of the regularly and duly constituted prosecut-
ing officers, and nothing in this Act shall be construed as de,priv-
ing them of any authority vested in them by law.
"In performing the duties devolved by this Act upon the Board.
of Medical Examiners, said Board shall act through the Secretary--Lo-
Treasurer of the Board of Medical Examiners. The Secretary-Treas-
urer shall receive a salary to be fixed by the Legislature in its
General Appropriation Bill for the performance of such duties under
this Act, and shall make and file a surety bond in favor of the
Texas State Board of Medical Examiners in the sum of not less than
TeqThousand ($lO,OOO.OO) Dollars, conditioned that he will faith-
fully discharge the duties of his office. Such salary shall be
paid out of said 'Medical Registration Fund' and shall not be,
in any way, a charge upon the general revenue of ,theState. The
Texas State Board of Medical Examiners shall employ and.provide
such clerks and employees as may be necessary to assist-the Sec-
retary-Treasurer in performing his duties and in carrying out the
purpose of this Act; provided, that the compensation of all par-
sons authorized to be employed under this chapter, shall be paid
only out of said 'Medical Registration Fund'. All disbursements
from said fund shall be made only upon written approval'of the
President and Secretary-Treasurer of the State Board of Medical
Examiners and upon warrants drawn by the Comptroller to be paid
out of said fund."
We quote from Senate Bill Ho. 423, Acts of the 47th Legisla-
ture, 1941, Regular Session (which is the general appropriation bill
for the executive and administrative departments of the State govern-
ment), as follows:
"TEXAS STATE BOARD OF MEDICAL -S
"SALARIES:
1. Secretary-treasurer $ 31300.00 $ 3,300.w
Secretary 1,200.OO 1,200.w
;: Investigator 2,100.oo 2,100.OO
4. Investigator 2,100.00 2,100.00
5. Traveling expenses, secre-
tary and two Investigators 3mO.00 3,600.oO
6. Bonds for employees loo.w 100.00
7. Seasonal labor 300.00 3OO.QO
TOPAL - Salaries $12,700.00 $l2,700.00
. _
Honorable T. J. Crowe, M. D., page 4 (O-4222)
_ MAINTENANCE AND MISCELLANEOUS
8. Rent, Directory, Printing,
Stationery, Telephone,
Telegraph, Typewriters,
Filing Cabinets, Addresso-
graph, Dictaphone, Sup-
plies, Mimeograph Supplies,
etc. $ 2,550.OO $ 2,550.O
TOTAL - Maintenance and
Miscellaneous $ 2,550.OO $ 2,550.OO
GRAND TOTAL - Texas State
Board of Medical Examiners $15,250.00 $15,250.00"
This appropriation is for the years ending August 31, 1942,
and August 31, 1943, respectively.
It is our opinion that the Texas State Board of MedicalEx-
aminers can legally make expenditures from and out of the "MedicalReg-
istration Fund" as is provided by the above mentioned appropriation
bill. There is no appropriation made for the payment of witnesses or
other expenditures mentioned in your letter by the Legislature. There-
fore, it is our opinion that the Texas State Medical Board is not au-
thorized to pay witness fees, railroad fares, hotel bills, or compensa-
tion to witnesses for the revenues lost by absence from the!.rregular
occupation or business.
We are enclosing herewith a copy of our opinion No. 0-3633
with reference to the right of the State or a defendant to subpoena
and attach out of county witnesses in a misdemeanor case.
Trusting that the foregoing fully answers your inquiry, we
are
APPROVED DEC 3, 1941 Yours very truly
/s/Grover Sellers ATTORNEY GENERAL OFTEXAS
FIRST ASSISTANT
ATTORNEY GZNERAL By /s/ Ardell Williams
Ardell Williams
AW:GG:IM Assistant
APPROVED
ENCLOSURE OPINION
COMMITrEE
BY /s/ BWB
CHAIRMAN