Honorable T. J. Crowe, M. D. OpinionNo. 0-42z? Secretary Re: Fees to witnesses for atTexas State Board of Medical Examiners tending misdemeanor cases Dallas,Texas under the facts set Portb

Dear Sir:

Your letter of Bovember 19, 1941, requestingthe opinion of this department on the questions stated therein reads in part as follows:

"I am writing you to ascertain just how far the State Board of Medical Examiners may go in payment of witness fees for attending misdemeanor 'cases.

"You of course know that we can not force the attendance of
a witness who is out of the county inwhich 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 conviction it is necessary to bringwitnesses from other counties and sometimes from long distances in order to get satisfactory evidencebefore the court to secure conviction.

"You are aware of course that the State Board depositswith the StateTreasury a special fund known as the Annual Registration Fund for the purpose of prosecutingviolations of the Medical Practice Act. It is said in the RegistrationAct that the Board may spend suchmoneys as are available in the StateTreasury in the Special Registration Fund which as you know is collected from the doctors of the State and depositedto the credit of the Secretary of the Department of the Board for the prosecutions.

"It is further stated in theAct that such funds may be spent for the purpose of prosecutingviolationsof the Act up to the point of depletion of said fundbut that no burden shallbe placed upon the State or GeneralFund of the State for such prosecutions.

"What I desire to know particularly Is just how far we are authorized to go in the payment ofwitness fees for attendants
as witnesses on our cases. In otherwords, are we authorized to pay railroad fare, hotelbills 'andcompensatethem for the revenues lostby absence from their regular occupation?Honorable T. J. Crowe, M. D., page 2 (o-4222)

"Ina recent case witness fees along the linesmentioned amounted to anywhere from $20 to $40 perwitness. These fees have been allowed by the Comptroller out of the contingentprovisions 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 quarterwithout a transfer through the Comptroller'sdepartment for fundswith which to pay such expenses."
Article kk@a, Vernon's Annotated Civil Statutes, reads in part as follows:

"Sec. 1. It shallbe the duty of all personsnow lawfully qualifiedand engaged in the practice of medicine in this State as defined inArticle 4510, Revised Statutes of 1925, or who shall hereafterbe licensed for such practiceby theTexas State Board of Medical Examiners, to be registeredas such practitionerswith 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 succeeding~

year. Each person so registeringwith the Texas State Board of Medical Examiners shallpay, in connectionwith each annual registrationand for the receipt hereinafterprovided for,
a fee ofTwo ($2.00) Dollars,which fee shallaccompany the application of every such person for such registration. Such payment shallbe 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 inwhich his certificate entitling him to practice medicinehas been registered, and the place or~placeswhere 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 collectedby the Texas State Board of Medical Examiners under thisAct shallhe placed in the StateTreasury, to the credit of a special fund to be known
as the 'MedicalRegistration Fund,' and all of the currentrevenues ,to'bederived,and placed to the credit of said fund during the two years ending August 31, 1933, are hereby appropriatedand shall be,used by the Texas State Board of Medical Examiners, and under its direction, in the enforcement of the laws of this State prohibiting the unlawful practice of medicine, and in the dissemination of informationto prevent the violation of such laws and to aid in the prosecution of those who violate such laws. The Texas StateBoard of Medical Examiners shallbe authorized to employHonorable T. J. Crowe, M. D., page 3 (O-4222)

~and~~to.~c&pe~ate fnom~such:;special fund employeesand such other -persons

as may be foundnecessary to assist the local prosecuting officers of any county in the enforcementof all the laws of the State prohibitingthe unlawfulpractice of medicine, and to carry out the other purposes forwhich said fund is hereby appropriated. Provided that all such prosecutionsshallbe subject to the direction and control of the regularlyand duly constitutedprosecuting officers,and nothing in this Act shallbe construedas de,priving them of any authorityvested in them by law.

"In performing the duties devolvedby this Act upon the Board. of Medical Examiners, saidBoard shallact through the Secretary--LoTreasurer of the Board ofMedical Examiners. The Secretary-Treasurer shall receive a salaryto be fixed by the Legislature in its GeneralAppropriationBill for the performanceof such duties under this Act, and shallmake and file a suretybond in favor of the Texas State Board of Medical Examiners in the sum of not less than TeqThousand ($lO,OOO.OO)Dollars, conditionedthat he will faithfully discharge the duties of his office. Such salary shallbe paid out of said 'MedicalRegistrationFund' and shallnot be, in any way, a charge upon the general revenue of ,the State. The Texas State Board of Medical Examiners shall employ and.provide such clerks and employeesas may be necessaryto assist-the Secretary-Treasurer in performing his duties and in carrying out the purpose of this Act; provided, that the compensationof all parsons authorized to be employedunder this chapter, shallbe paid only out of said 'MedicalRegistrationFund'. All disbursements from said fund shallbe made only upon written approval'of the President and Secretary-Treasurerof the State Board of Medical Examiners and upon warrants drawnby the Comptroller to be paid out of said fund."

We quote from Senate Bill Ho. 423, Acts of the 47th Legislature, 1941,Regular Session (which is the generalappropriationbill for the executive and administrativedepartmentsof the State government), as follows:

"TEXAS STATE BOARD OF MEDICAL -S

"SALARIES: 1. Secretary-treasurer $ 31300.00

;: Secretary 1,200.OO Investigator 2,100.oo 4. Investigator 2,100.00 5. Traveling expenses, secretary and two Investigators 3mO.00 6. Bonds for employees loo.w 7. Seasonal labor 300.00

TOPAL - Salaries $12,700.00 

### $ 3,300.w 1,200.w 2,100.OO 2,100.00 3,600.oO 100.00 3OO.QO $l2,700.00. _

HonorableT. J. Crowe, M. D., page 4 (O-4222)

_ MAINTENANCEAND MISCELLANEOUS

8. Rent, Directory, Printing, Stationery,Telephone, Telegraph,Typewriters, Filing Cabinets,Addressograph, Dictaphone, Supplies, 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 endingAugust 31, 1942, and August 31, 1943, respectively.

It is our opinion that the Texas State Board of MedicalExaminers can legallymake expenditures from and out of the "MedicalRegistrationFund" as is provided by the above mentionedappropriation bill. There is no appropriationmade for the payment of witnesses or other expendituresmentioned in your letterby the Legislature. Therefore, it is our opinion that the Texas State Medical Board is not authorized to pay witness fees, railroad fares,hotel bills, or compensation to witnesses for the revenues lostby absence from the!.r regular occupationor business.

We are enclosing herewith a copy of our opinionNo. 0-3633 with referenceto the right of the State or a defendant to subpoena and attach out of countywitnesses in a misdemeanor case.

are Trusting that the foregoing fully answers your inquiry,we

APPROVED DEC 3, 1941 Yours very truly
/s/Grover Sellers ATTORNEY GENERAL OFTEXAS

FIRSTASSISTANT ATTORNEY GZNERAL

AW:GG:IM

ENCLOSURE APPROVED OPINION COMMITrEE BY /s/ BWB CHAIRMAN By /s/Ardell Williams Ardell Williams Assistant