. .

E ENE

AUSTIN II.

TEXAS

March 14, 1962 Overrules v-34

HonorableWilliam E. Carroll OpinionNo. ~~-1276 District Attorney 1st Judicial District Re: Whether a district Jasper, Texas attorney shouldbe reimbursed for his actual and necessary expenses in appearingbefore the Court of Criminal Appeals to argue a criminal case, Dear Mr. Carroll: and related questions.

We are in receipt of your request in which you ask the following questions:

"(1)Whether or not a district attorney shouldbe reimbursed for his actual and necessary expenses in connectionwith appearing before the Court of CriminalAppeals on behalf of the State of Texas to argue a case inwhich the district attorneyhas represented the State of Texas in a district court in his district and which has been appealed to the Court of Criminal Appeals.
"(2) Whether or not a district attorney shouldbe reimbursed for his actual and necessary expenses in connectionwith arguing a motion for rehearingbefore the Court of Criminal Appeals in a case inwhich the district attorney represented the State of Texas in a district court of his district and which has been reversedby the Court of Criminal Appeals."
These questions arise as a result of OpinionNo. V-354, by a former Attorney Generalwho held such office in 1947, inwhich opinion he held that a district attorneywas not entitled to reimbursement for his travel expenseswhere he traveledbeyond his district to appear before the Court of Criminal Appeals in connectionwith a motionfor rehearing nor when he made similar trips for the purpose of discussing the reindictmentof the defendantwith the State'sHon. William E. Carroll Page 2 OpinionNo. w&1276

Attorney and the judges of the Court of Criminal Appeals. The basis of this opinionwas centered around the construction of Article 1811, Vernon's Civil Statutes,which provides:
"The Court of CriminalAppeals shall

appoint an attorney to represent the State in all proceedingsbefore said court, to be styled 'State'sprosecuting attorney."

In construing this statute it was the opinion of the then Attorney General that since it was the duty of the State's prosecuting attorney to represent the State in all proceedings before such court, that the district attorneyhad no authority to represent the State before the Court of CriminalAppeals and was not entitled to be reimbursed for his traveling expenses.

The questionswhich you present are, in effect, a request for a reconsiderationof Attorney General's OpinionNo. v-354.
Article 6820, Vernon's Civil Statutes,provides in part as follows:

"All district judgesand district attorneys when engaged in the discharge of their official duties in any county in this State other than the county of their residence shall be allowed their actual and necessary expenseswhile actually engaged in the discharge of such duties,

. . . ." (Emphasis added)
Section 21 of ArticleV, Texas Constitution,provides that it shallbe the duty of the district attorney to represent the State in all criminal cases in the district courts of his particular district.

Article 25 of the Texas Code of Criminal Procedure also provides:

"Each district attorney shall represent the State in all criminal cases in the district courts of his district."

Our investigation shows that on the average there are 1500 cases appealed annually to the Texas Court of Criminal Appealswhich require study; from 450 to 500 of these cases, 1

Hon. William E. Carroll Page 3 OpinionNo. ~~-1276

require extensive study and the preparation of briefs. There is only one State'sprosecuting attorney and the cases appealed each year are increasing in **VOhTE.**

Section 51 of Article III of the Texas Constitution provides in part as follows:

"The Legislature shallhave no power to make any grant or authorize themaking of any grant of public monies to any individual, association of individuals,. municipal or other corporationswhatsoever;

. . . .'
While this articleprohibits the Legislature from granting or appropriatingpublic money to any of the potential recipients named, the Texas courtshave interpretedthis section of the Constitutionas not preventing it from appropriatingState funds to an individual,associationof individuals,municipal
or other corporation if the use or purpose of the appropriation is for the furtherance of the governmentalduties of the State. If an appropriation ismade for a use not related to any State governmental duty or function,suchan appropriationwould be a gratuity and therefore invalid. Bexar County v. Linden, 110 Tex. 339, 220 S.W. 760 (1920);Road District;NcC. 4, Shelby Co. v. Allred, 123 Tex. 77, 68 S.W.2d lb4 (1934) ity of Aransas Pass v. Keeling 112 Tex. 339, 247 S.W. 818, (1923);Jones v. Alexander, 122 $ex. 328, 59 S.W.2d 1080 (1933);Texas PharmaceuticalAssociationv. Dooley, 90 S.W.2d 328 (Civ.App.,1936); Jefferson Co. v. Board of Co. & Dist. Road Indebtedness,143 Tex. 99, 182 S.W.2d 908 (l944)

.

This officehas been called on many occasions for an opinion to determinewhether expenditureof appropriated funds could be used by personnel of the .variousgovernmental departments to attend schools, clinics, conferences,etc., for training purposeswhich would directly and substantiallyrelate to the performance of the State's governmental functions.

In Attorney General's OpinionNo. WW-223, (1957) this office held that the Texas Department of Public Safety could pay the tuition of an employee for the attendanceof a PilotInvestigatorFlight ProficiencyTraining Program. We held in that opinion that:

"It is apparent from the facts stated in your request that the training receivedby the said Pilot-Investigatorswill be directly and substantiallyused by the employee PilotInvestigator to facilitate the operation ofHon. William E. Carroll Page 4 OpinionNo. ~~~-1276

the aircraft in a more efficientmanner, and therefore, the facts established that the relationshipbetween the purpose of the training and tine functions of the Texas Department of Public Safety intrusted to the employee is reasonable, substantialand direct."

In Attorney General's OpinionNo. W-505, (1958) this office held that the General Land Officemay pay the registration fees for their Chief Appraiser to attend the South; West Appraisal Conferencebecause such training that he would receive reasonably, substantiallyand directly related to his duties and that the fees for registrationof the Executive Secretary of theVeteran's Land Board and an Attorney for the General Land Officemay also be paid.

Attorney General's OpinionNo. Wd-467, (1958)held that the payment of traveling and per diem expenses for certain named State employees attending an ~Instituteon Alcohol Studies held by the Texas Commission on Alcoholism and the National Counsel of Alcoholismwas authorized.

In Attorney General's OpinionNo, w-83 (1957) the questionwas presented to this offiCewhether persons assigned to the Board of InsuranceCommissioners,who were responsible for the preparation of 250,000monthly assistancewarrants and all the related departmental statistical reporting as well as other duties, could attend an IBM school in order to learn how to use a new type of IBMmachine which was to be delivered to that department in the then near future.

In holding that they couldbe sent to such a school this office held in that opinion in part as follows:

II

. . .Therefore,we will review the holding therein as well as various previous opinions of Attorney Generals on similar questions. In reaching the conclusion in Attorney General's Opinion S-209,.it was stated that the traininggiven would be directly and substantiallyused by the employee to facilitate the oneration of the IBMmachine in a more efficientmanner and, therefore, the facts established that the relationshipbetween the purpose of the trip and the accomplishmentof the functions of the government entrusted to the employee is reasonable, substantialand direct.!'Hon. William E. Carroll Page 5 OpinionNo. ~~-1276

We furtherheld in that opinion thatin determining whether travel is includedpursuant to the GeneralAppropriations Bill "for State purposes" the questions to be decided are whether the result of such travel is the accomplishment of a governmental function and themeans andmethods adopted are reasonablynecessary.

In Attorney General's OpinionNo. WW-245 (1957) this office held that the traveling expenses incurredby district attorneys attending conferences of district and county attorneys for the purpose of study and discussion of mutual problems in the field of criminalprosecutionwas authorized. In that opinionwe quoted SubdivisionF of Section 29, of Article 6 of House Bill 133, Acts of the 55th Legislature, effective September 1, 1957,which provided as follows:

"Travel expensesmay be reimbursed from the appropriationsmade in this Act only where the purposes of the travelperformed are clearly for the conduct of the State's officialbusiness and in consonancewith the legal responsibilitiesof the agency of the State represented."

We concluded that opinionby saying that the travel expenses of a district attorney coming to Austin to attend the conference may be paid by the Comptroller out of themoney appropriated in House Bill No. 133,Acts 55th Legislature.

It was the former Attorney General's Opinion inV-354 that since the Court of CriminalAppeals appoints a State's prosecuting attorney to represent the State in all proceedings before that court, a district attorneywould not be entitled to his mileage or expenseswhen he appearedbefore the Court of CriminalAppeals to assist the State's prosecuting attorney in the preparation of the necessarybriefs thatprecede such
an argument. It is our opinion that Attorney General's Opinion V-354 is erroneous,and the same is expressly overruled.

The question is not whether the Court of Criminal Appealshas a State's Attorney to present cases before them on appeal, but whether the travelby a DistrictAttorney to Austin to argue an appeal before the Court of Criminal Appeals or a Motion for Rehearing is State'sbusiness. It has been the opinion of this office that to entitle a State employee to be reimbursed for travel expenses the factsmust establish "that the relationshipbetween the purpose of the trip and the accomplishment of the functions of the government entrusted to the employee is reasonable, substantialand direct."Hon. William E. Carroll Page 6 OpinionNo. ~~-1276

The District Attorney is entrustedby the Constitution and the citizenry of his district to prosecute those charged with a violation of a crimemade punishable in his jurisdictionby ~,the

Legislature. A district attorneywho prosecuted the case and secured the convictions,being fully Informed as to the facts presented in the trlal.court,can better inform the Court of Criminal Appeals on the points upon which the defendant is predicatinghis appeal and the Court of Criminal Appeals is entitled to the benefit of the district attorney's superiorknowledge of the case. To continue to pursue his function as a prosecutorby assisting the State's Attorney on an appeal from conviction is a functionwhich is reasonable, substantial,and of directbenefit to the State of Texas, and he is, in our opinion, entitled to reimbursement for his actual and necessary expenses in connectionwith appearances before the Court of Criminal Appeals on behalf of the State of Texas,whether it be to argue the case on appeal or to argue a motion for rehearing.

SUMMARY

A district attorney is entitled to reimbursement for his actual and necessary expenses in appearingbefore the Court of Criminal Appeals to argue ,acriminal case or a motion for rehearing. Prior Attorney General's OpinionNo. V-354 (1947)is expressly overruled.

Yours very truly,

WILL WILSON s!?g2/

LFP:sh

APPROVED:

OPINION COMMITTEE: W. V. Geppert, Chairman J. C. Davis Marvin Thomas Bob Flowers on F. Pesek Attorney General

REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee,Jr.