August 24, 1953
Hon. Rotart SLoalvert Comptrollar of PI&UC Acoounts Austin, Texas .Opinlon NO. s-89 Rer

Dear 1wr,Calvert: 1, Authority of the Comptroller to Issue warrant4 in payment of wltneea feet3 aosigned to a county. 2. Aut,hority to Issue warrants for witness Pees,to, ang,.~ of the offio,ers namedin k&4- cl& 380, Vernon's Penal Code, when such officers have purchased such wit~nesa fee bIlla. Your request for follows: our opinion read0 in part a0

"This Department has received a witness fee bill for fees 'aooruing to,a witness under the provisions of Article 1036 C.C.P* The wltneea apparently attempted to assign hi6 witness fee account to Jeff Davis County,, which County paid the 'wltneas,the full amount of hle witneerr fee aocount. TheDleerlot Clerk of the County requests that a~Uarrhnt ;;e:asued to the County for these witness

.Yioulcl it be legal r0r this nbrttint to Issue a warrant to the County Par these fees? "Would It be legal for this Departmmt to issue a warrant for ritnass feed to iucf o? the oflioer;s named in Arelole 380 P,C. in lnstanoes whensaid oPflosrB have purohaBQd witness fee bills?". 1

Hon.Robert S. Calvert,page 2 (S-89)

Section 5 of Article 1036, Vernon’s Code of Criminal Procedure,provides in part as follows:

"TheComptroller,upon reaeipt of such claim and the certified list provided for in the foregoing section, shall carefully examine the same, and If he deems said claim correct,and In compliancewith and authorizedby law in everyrespect, drawhis warrant on the State Treasury for the amount due in favor of thewitness entitledto same, or to any person such certificatehas been assignedby suchwitness, but no warrant shall issue to any assignee of such witness' claimunless the assignment ismade under oath and~acknowledgedbefore some person duly authorized,toadministero.aths, certified to by the Officer and under seal."
It is noted that the attempted assignmentof thewitness fee bill involvedassigns the account to the witness himself,and is therefore ineffectiveas an assignment. Therefore,under the section of Article 1036 quoted above, the Comptrollerwould not be authorized to Issue a warrant inpayment of such claim to any person other than thewitness himself.

It is, probable that this assignmentcan be corrected to show that JeffDavis County Is the:,trueassignee,~assuch appears tohave been the Intent of the parties,and the claim then again presented to your office.
In such event it is assumed thatyour first questionwas Intendedto inquireas to the legalityof paymentafter an assignmentof such a claim to a county. In this regard it isnoted that the part of Section 5 above quoted authorizesan assignment "toany person."

Article 1572,V.C.S., provides "Eachco.unty. which now exists or which may behereafter established shall be a body corporateand politic." Article 23, V.C.S., provides in part, "Thefollowingmeaning shall be given to each of the followingwords, unless a differentmeaning is apparent from the context; 2. 'Person'1 -

Hon. Robert S. Calvert, page 3 (S-89)

lncludea a corporatlonrn Live OakCount City of Taho CorPun chI%lti v* tT Cl A 1957); 8g,‘:i6 ::w:‘c?162

, 166 s.w. 470, 472
There being no Indication that the Legislature intended a more restrictive meaning It follows that a county would be Included In the foregoing phrase authorizing assignments “to any person”, It is our opln,lon that if a valid claim for witness fees in a felony case, prop,erly assigned to Jeff Davis County, is presented within twelve monthe from the date same became due, It would be legal to Issue a warrant to said county for such fees. Your seoond question Is, ‘Would It be legal for the Department to Issue a warrant for wltness~ fees to any of the officers namedIn Article 380, P.C., In if;:“,;;$es when said officer8 have purchased witness fee

Article 380, Vernon’s Penal Code, reads as follows:

“Any county judge, clerk or deputy clerk of any district or county court, sheriff, or his deputy, justice of the peace or constable, whoshall purchase or otherwise acquire from the party Interested any fee or fees coming to any witness In any proceeding whatever, either before the district or county court, or the court of any justice of the peace, or before any coroner’8 Inquest, shall b$ fined not exceeding one hundred dollars. The atatute involved Is very inclusive and denounces those designated officers who “purchase or otherwise aoquire from the party interested” any such witness fees, and such purchase would byeIllegal and void. Texas Anchor Fence Co. y. City of ~San Antonio,, 71 S.W. 301 (T Clv.App, 1902). This would include aoquisltlon In aiG*manner other than by lnheritanoe or-. /

Hon. Robert S. Calvert, page 4 (S-89)

operation of law. Of course, this would Aot apply to .a sheriff or con&able advancfng funds to a witness in conformity with Article 477, Vernon's Code of Criminal Procedure. 246 (1900). Sparks v. State, 42 Tex.Crim. 374, 60 S.W.

It follows therefore that the Comptroller would not 'be authorized to issue warrant,s to the officera named In Article 380, V.P.C., In Instances whensuch officers have purchased wltneas fee bills. SUMMARY The Comptroller is authorized to lssue a warrant to a county to pay a witness certificate which has been properly assigned to such county. Article 1036, V.C.C.P. The Comptroller is not authorized to issue a warrant for witness fees to any of the officers namedIn Article 380, Vernon's Penal Code, when such officers have Purchased witness fee bills.

8' APPROVED: J. C. Davis, Jr. County Affairs,,Dlvislon Yours very truly, 'JOHN BENSHEPPERD Attorney General

Willis E. Gresham Reviewer. Robert S. Trottl First Assistant BY Assistant