- 

R-452 

THEATTORNEY GENERAL 

OF-TEXAS 

June 10, 1947 

Honorable George B, Sheppard 

Comptroller of Public Accounts 

Auatfn, Texas Opinion No, V-240 

Re: Whether Comptroller should lst3ue wwrant in payment of wltness cartlfloate under facts 

stated 

Dear Sir: 

Your lktter requesting our oplnlon relative to the 

above-captioned matter reads,, ln part, as follows: 

“A subpoena was 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 subpoena was not 

served on hLm by the.SherlfS of Tarrant County. 

However, upon being informed bg the Federa, Narcotics Bureau that subpoena had been issued and 

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. 

"The Clerk of thg Crlmlnal Dlstrlct Court of 

San Antonio Issued a witness certlflcate to Hr. 

Johnny Lott, Including mileage and per,diem Prom 

Galvestcm County to San Antonio and return. 

"Ii~thls department authorlaad %o Issue warrant in payment 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 .hls appearance before any Court, OF before 
Honorable 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 

compliance with the obligations of such recognizance or bond, shall'be allowed 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-each day 

he may necessarilg.be a.bsent from home as a witness in such case; . . . . . 

'Witnesses shall receLve from the State, for 

attendance upon District Courts and grand juries 

in counties other than that of their residence 

in obedience to subpoenas issued under 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 Two Dollars ($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 shall be allowed only to I 

such witnesses as may have been summoned on the 

sworn written application of the State's attorney or the defendant or his attorney as provlded 

In Article 463, Code of Criminal Procedure, which 

sworn application must be made at the.time of the 

procuring of the subpoena, attachment for, or 

recognizance of, the witness. . . . ; ; 

"(4) The DLstrlct or Criminal District Judge, 

when any such claim is presented to him, shall 

examine the same carefully, and Inquire lnto~-the 

correctness thereof, and approve same, in whole 

or in part, or disapprove the entire claim, as 

the facts and law may require; and such approval 

shall be conditioned only~upon and subject to 

the approval of the State Comptr~oller, as provided 

for in Article lp35 of the Code of Criminal Procedure;.. . . . _ 

"(5) The Comptroller, upon receipt of such 

claim and the cei+Tfied'list provided for in the 

foregoing section, shall.carefully examine the' 

same, and if he deems said claim correct; and in 

compliance with and authorlsed by law In every 

respect, draw'hls warrant 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 served by reading the same in 

the hearing of the witness. The officer having 

the subpoena shall make 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 the whereabouts 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 the witness did not appear and was fined for his 

disobedience. The Court ordered the witness discharged and 

held in effect that until the witness was duly served as 

provided by Art. 464, C. C.P., he was 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, asconstrued by 

the courts, it Is our opinion that the Comptroller is not authorized to issue a warrant in payment of the witness certificate, which includes mileage 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 in Galveston, then you would be 

warrant in payment thereof. 

SUMMARY 

The Comptroller Is not authorized to issue 

a warrant to pay a witness certificate which included per diem and mileage traveled prior to the 

tlme a subpoena was served upon the witness. Articles 1036 and 1080, C. C. P. 
Honorable George H. 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/Price Daniel 

ATTORNEY GENERAL