lion6 Tom C. King Opinion NO. O-2465
stat@ Auditor and Efficiency Ret Is it optional with the em-
Expert floyee ~“0 choose either source
kiustln,~ Texas the departmental appropriation
for traveling expenses, or the
statutory mileage and witness
fee) from which to be reimbursed?
Dear Sir: And~related questions.
Your recent request for an opinion of this Department
on the questions as are herein stated has been received.
We quote from your letter as follows:
“The current Departmental Appropriation Bill de- :
clares in Section2 (under the-head, *Traveling Ex-
penses$ 1 I
l’;k~y State official or employee entitled to trav-
eling.expenses out of State appropriations herein made,
who is legally or officially required to be present at
the trial of any State case, shall not claim traveling
expenses from the State and also from the Court wherein
said case is pending. If by oversignt, duplicate claims
are filed for said traveling expenses and collected,
then said officers or employees shall reimburse and re-
fund to the State Treasurer an amount equal to the re-
spective amount collected under such witness fee and
mileage claim. t
“For the proper construction of this clause your
opinion is respectfully requested as follows:
“1. Is it optional with the employee to choose el-
ther source (the departmental appropriation for travel-
ing expense,.or the statutory mileage and witness fee)
from which to be reimbursed?
“2, If the mileage and expense allowance as com-
puted-under the terms of the appropriation bili should
be greater than as computed under the statutes relating
to aourt costs, would the former measure be appropriate
for the claim of a state employee?
Hon. Tom C. King, page 2 (O-2465)
“3. In the case of a duplication, is the refund
to be.made.dlrect to the State Treasurer, so as to be
credited to the traveling-expense account of the de-
partment with which the employee is connected; or,
through the court in which the trial was had, thus op-
erating as a credit to the costs of the case, or as a
revenue ltem?l’
Article 1036, Code of Criminal Procedure, reads in
part, as follows:
“Any witness who may have been recognized, sub-
poenaed or attached, and given bond for his appearance
before any court, or before any grand jury, out of the
county of his residence to testify in a felony case,
and who appears in compliance with the obligations of
such recognizance or bond, shall be allowed his actual
traveling expenses, not exceeding four cents per mile
going to and returning from the court or grand jury,
by the nearest practical conveyance, and two dollars
per day for each day he may necessarily be absent from
home as a witness in such case.
llWitnesses shall receive from the State, for attend-
ance upon district courts and grand juries in counties
other than that of their residence, in obedience to sub-
poenas issued under the provisions of law their actual
traveling expenses, not exceeding four cents per mile,
going to and returning from the court or grand jury, by
the nearest practical conveyance, and two dollars per
day for each day they may necessarily be absent from
home as a witness, to be paid as now provided by law; . ..I’
Section 3 of the above mentioned article provides that:
“Before the close of each term of District Court,
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 filed with the papers of the case.
No witness shall receive pay for his services as a wit-
ness in more than one case at any one term of the court.
Fees shall not be allowed to more than two witnesses to
the same fact unless the judge before whom the cause
is tried shall, after such case has been tried, contln-
ued, or otherwise disposed of, certify that such wit-
nesses were necessary in the cause. . .‘I
Hon. Tom C. King,? page 3 (O-2465)
A witness to be entitled to the compensation :IJ pi’~~b-
vided by .A?$icle 1036 must be legally subpoenaed hy th? ~‘.~.::r’;
before he,-Is entitled to such compensation.
It is well settled that no public official is entitl,;l
to rece’ive.and retain any fees or compensation unless there is
a provislon~. made by the legislature giving the same to him. See
the case of ‘McCalla vs. City of Rockdale, 246 S.W. 654; Duclos v.
Harris County, .298 S.W. ,417and authorities cited therein. Along
the same line, the courts have held,that the legislature may
provide for the allowance of expenses incurred~ by an officer in
addition to the compensation fixed by law. Terre11 vs. King,
14 S.W. (2d) 786. Also see the Article 3897'Vernon’s Annotated
Civil Statutes, and.,the authorities cited thereunder pertaining
to the ,filing of expense accounts of various officials.
In the case of Lay vs. State, 202 S.W. 729, the ques-
tion as whether a salaried pol.iceman was entitled to his per
diem under the old bticle~ 1137b, Code of Criminal Procedure,
(now repealed). The court, in this case, after holding this
’ article applicable only to ‘felony cases and not to the case vn-
der consideration, which was a misdemeanor, used the following
language :
‘1 . . There being no difference with reference
to misdemeanor c’ases as to the character of witnesses
whether officers or not, the officer would come withi;
the general category, as we understand the law, as wit-
ness. His official character, so far as that proposi-
tion is. concerned, would make no difference. . .‘I
Under the case of Lay vs. State, supra, it seems that
the official character of the witness’ makes no difference as to
the perdiem, where the statutes do not specifically draw a line
between the officers as witnesses and ordinary ‘witnesses. Arti-
cle 1036, Code of Criminal Procedure, -supra, the present statute
providing fees and mileage for out-of-county witnesses in felony
cases, does not’make this distinction. It has long been the
Departmental construction of the Comptroller I s off ice that State
Highway Patrolmen are entitled to mileage and the Two Dollars per
diem as out-of-county witnesses in a felony case in the court and
before the grand jury investigating the felony. However, such
Highway Patrolmen receiving mileage fees and Two Dollars per diem
from the~~court are not entitled to collect the mileage fee and
the Two Dollars per diem and also the traveling expenses allowed
by the general appropriation bill.
In this connection we want to point out that if an of-
~ficer or employee is duly subpoenaed in a felony case in which
Hon. Tom C. King, page 4 (O-2465) -.
he is not officially connected or has rendered no official serv-
ice, he would not be entitled to claim the traveling expenses as
allowed by the general appropriation bill, but would be entitled
to claim the compensation as provided by Brtlcle 1036, supra.
On the other hand where an officer or state employee
is subpoenaed as a witness before the court In a felony case or
a grand jury investigating a felony in a county other than that
of his residence where such officer or employee is or has been
officially connected with the case or has rendered any official
service and has performed some official duty in connection there-
with such officer or employee may claim mileage fees and the
per Aiem as allowed by Article 1036, supra, or he may claim the
traveling expenses as allowed by the general appropriation bill;
however, he cannot claim both the statutory mileage and witness
fee and the traveling expense allowed, but may claim either at
his option.
We think that the answer to your first question ‘neces-
sarily answers your second question as it is optional with the
employee to choose either the departmental appropriation for
traveling expenses or the statutory mileage and witness fees from
which to be reimbursed under the conditions above stated, and
that it would be appropriate for the employee to choose either.
However, as above stated, it is to be noted that if the officer
or employee is subpoenaed only as a witness and has no official
connection with the case, he could claim only the compensation
as allowed by Article 1036.
In answer to your third question, you are respectfully
advised that if the per diem and mileage under Article 1036, su-
pra, and the traveling expenses as allowed by the general appro-
priation bill are collected, then such State employees would be
required to reimburse and refund to the State Treasurer an amount
equal to the respective amount collected as such witness fee and
mileage under Brticle 1036, supra. We believe that under Section
2 of the Departmental Appropriation Bill, above quoted, that this
refund would be made direct to the State Treasurer and that the
same would be credited to the fund appropriated for the purpose
of compensating out-of-county witnesses subpoenaed in felony cases
before the court or before a grand jury investigating a felony
case.
Trusting that the foregoing answers your inquiry, we
are
APPROVEDJUL 8, 1940 Yours very truly
Js/ G1enn.R. Lewis ATTORNEYGENERALOF TEXAS
(Acting) ATTORNEYGENEZU OF TEXAS B~d$~ ,",,":~~m~~'~~~~~~;nt
APPROVED: OPINION COMMITTEE.
BY: ‘BWB, CHAIRMAI~
AW,ew:wb