- R-452



### THEATTORNEY GENERAL

OF-TEXAS

June 10, 1947 Honorable George B, Sheppard Comptroller of Public Accounts Auatfn, Texas OpinionNo, V-240
Re: Whether Comptroller should lst3ue

### wwrant inpayment of wltness cartlfloateunder facts stated Dear Sir:

Your lktter requesting our oplnlonrelative to the above-captionedmatter reads,, lnpart, as follows:

“A subpoenawas 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 subpoenawas not served on hLm by the.SherlfS of Tarrant County. However, upon being informedbg the Federa,Narcotics Bureau that subpoenahad been issuedand was outstanding,Mr. Johnny Lott, sating upon this lnforrratlon,

appeared before the CNmlnal Blstrlet Court OS Bexar County at San Antonlo, and the subpoena was duly served on him there. "TheClerk of thg CrlmlnalDlstrlct Court of San Antonio Issueda witness certlflcate to Hr. Johnny Lott, Includingmileage and per,diem Prom Galvestcm County to San Antonio and return. "Ii~thlsdepartment authorlaad %o Issue warrant inpayment of the certlflcate?" The relevant provls¶.onn of 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 .hlsappearancebefore any Court, OF beforeHonorable George H. Sheppard - Page 2 V-240

any grand jury, out of the county of'hls residence, to testify in a felony case regardless of disposition of said case, and who appears in compliancewith the obligations of suchrecognizance or bond, shall'beallowed Three (3) Cents per mile going to and returning from the Court or grand jury,by the nearest practical conveyante, and Two Dollars ($2) 'per day for-eachday he may necessarilg.bea.bsentfrom home as a witness in such case; . . . . . 'WitnessesshallreceLve from the State, for attendance uponDistrict Courtsand grand juries in counties other than that of their residence in obedience to subpoenas issuedunder the provisions of law Three (3) Cents per mile, going to and returning from the Court or grand jury; by the nearest practical conveyance,and TwoDollars ($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 shallbe allowed only toI suchwitnesses as may have been summoned on the swornwritten application of the State's attorney or the defendant or his attorney as provlded InArticle 463, Code of Criminal Procedure,which swornapplicationmust be made at the.time of the procuring of the subpoena,attachment for, or recognizance of, thewitness.

. . . ; ; "(4) TheDLstrlct or CriminalDistrict Judge, when any such claim is presented to him, shall examine the same carefully,and Inquire lnto~-the correctness thereof,and approve same, inwhole or in part, or disapprove the entire claim, as the facts and law may require; and such approval shallbe conditioned only~uponand subject to the approval of the State Comptr~oller, as provided for inArticle lp35 of the Code of Criminal Procedure;..

. . . _ "(5) The Comptroller,upon receipt of such claim and the cei+Tfied'listprovided for in the foregoing section, shall.carefullyexamine the' same, and if he deems said claim correct;and in compliancewith and authorlsedby law In every respect, draw'hlswarrant on the State Treasury for the amount due in favor of the witness entitled'to same.i

); .'; '::

."Honorable George H. Sheppard - Page 3 V-240

Article 464, C. C. P. provid~es as follows:'
"A subpoena Is servedby reading the same in the hearing of the witness. The officer having the subpoena shallmake due return thereof, showing 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 information he has as to thewhereabouts 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 thewitness did not appear and was fined for his disobedience. The Court ordered thewitness discharged and held in effect that until thewitness was duly served as provided by Art. 464, C. C.P., hewas under no duty to appear 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 subpoena&, attache6 or recognized as a witness in the case.' See also Stewart v. State, 44 S. V. 505. Based upon the above quoted statutes,asconstruedby the courts, it Is our opinion that the Comptroller isnot authorized to issue a warrant in payment of the witness certificate,which includesmileage and per diem from Galveston to San Antonio. However. if a new certificate is secured which only includes was actually served San Antonio to his authorized to issue the per diem from the time the subpoena on the witness and his mileage from home inGalveston, then you would be warrant in payment thereof. SUMMARY The Comptroller Is not authorized to issue a warrant to pay a witness certificatewhich included per diem and mileage traveled prior to the tlme a subpoenawas served upon thewitness. Articles 1036 and 1080, C. C. P.Honorable GeorgeH. 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/PriceDaniel ATTORNEY GENERAL