. . 

E ENE 

AUSTIN II. TEXAS 

March 14, 1962 

Overrules v-34 

Honorable William E. Carroll Opinion No. ~~-1276 

District Attorney 

1st Judicial District Re: Whether a district 

Jasper, Texas attorney should be reimbursed for his actual 

and necessary expenses 

in appearing before 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 

should be reimbursed for his actual and 

necessary expenses in connection with appearing before the Court of Criminal Appeals on 

behalf of the State of Texas to argue a case 

in which the district attorney has 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 

should be reimbursed for his actual and 

necessary expenses in connection with arguing 

a motion for rehearing before the Court of 

Criminal Appeals in a case in which the 

district attorney represented the State of 

Texas in a district court of his district and 

which has been reversed by the Court of 

Criminal Appeals." 

These questions arise as a result of Opinion No. 

V-354, by a former Attorney General who held such office in 

1947, in which opinion he held that a district attorney was 

not entitled to reimbursement for his travel expenses where 

he traveled beyond his district to appear before the Court 

of Criminal Appeals in connection with a motionfor rehearing nor when he made similar trips for the purpose of discussing the reindictment of the defendant with the State's 
Hon. William E. Carroll Page 2 Opinion No. w&1276 

Attorney and the judges of the Court of Criminal Appeals. 

The basis of this opinion was centered around the construction of Article 1811, Vernon's Civil Statutes, which 

provides: 

"The Court of Criminal Appeals shall 

appoint an attorney to represent the State 

in all proceedings before said court, to be 

styled 'State's prosecuting 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 attorney had no 

authority to represent the State before the Court of 

Criminal Appeals and was not entitled to be reimbursed for 

his traveling expenses. 

The questions which you present are, in effect, a request for a reconsideration of Attorney General's Opinion No. 

v-354. 

Article 6820, Vernon's Civil Statutes, provides in 

part as follows: 

"All district judges and 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 

expenses while actually engaged in the discharge of such duties, . . . ." (Emphasis 

added) 

Section 21 of Article V, Texas Constitution, provides that 

it shall be 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 

Appeals which require study; from 450 to 500 of these cases 
, 1 

Hon. William E. Carroll Page 3 Opinion No. ~~-1276 

require extensive study and the preparation of briefs. There 

is only one State's prosecuting 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 shall have no power to 

make any grant or authorize the making of 

any grant of public monies to any individual, 

association of individuals,. municipal or 

other corporations whatsoever; . . . .' 

While this article prohibits the Legislature from granting or 

appropriating public money to any of the potential recipients 

named, the Texas courts have interpreted this section of the 

Constitution as not preventing it from appropriating State 

funds to an individual, association of individuals, municipal 

or other corporation if the use or purpose of the appropriation 

is for the furtherance of the governmental duties of the State. 

If an appropriation is made for a use not related to any State 

governmental duty or function,such an appropriation would 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 Pharmaceutical Association v. 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 office has been called on many occasions for an 

opinion to determine whether expenditure of appropriated funds 

could be used by personnel of the .various governmental departments to attend schools, clinics, conferences, etc., for training purposes which would directly and substantially relate to 

the performance of the State's governmental functions. 

In Attorney General's Opinion No. WW-223, (1957) this 

office held that the Texas Department of Public Safety could 

pay the tuition of an employee for the attendance of a PilotInvestigator Flight Proficiency Training Program. We held in 

that opinion that: 

"It is apparent from the facts stated in 

your request that the training received by the 

said Pilot-Investigators will be directly and 

substantially used by the employee PilotInvestigator to facilitate the operation of 
Hon. William E. Carroll Page 4 Opinion No. ~~~-1276 

the aircraft in a more efficient manner, 

and therefore, the facts established that 

the relationship between the purpose of 

the training and tine functions of the Texas 

Department of Public Safety intrusted to 

the employee is reasonable, substantial and 

direct." 

In Attorney General's Opinion No. W-505, (1958) this 

office held that the General Land Office may pay the registration fees for their Chief Appraiser to attend the South; 

West Appraisal Conference because such training that he would 

receive reasonably, substantially and directly related to his 

duties and that the fees for registration of the Executive 

Secretary of the Veteran's Land Board and an Attorney for the 

General Land Office may also be paid. 

Attorney General's Opinion No. Wd-467, (1958) held that 

the payment of traveling and per diem expenses for certain 

named State employees attending an ~Institute on Alcohol Studies 

held by the Texas Commission on Alcoholism and the National 

Counsel of Alcoholism was authorized. 

In Attorney General's Opinion No, w-83 (1957) the 

question was presented to this offiCe whether persons assigned 

to the Board of Insurance Commissioners, who were responsible 

for the preparation of 250,000 monthly assistance warrants 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 IBM machine which was to be delivered to 

that department in the then near future. 

In holding that they could be 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 training given would be directly and substantially used by the employee to facilitate 

the oneration of the IBM machine in a more 

efficient manner and, therefore, the facts 

established that the relationship between the 

purpose of the trip and the accomplishment of 

the functions of the government entrusted to 

the employee is reasonable, substantial and 

direct.!' 
Hon. William E. Carroll Page 5 Opinion No. ~~-1276 

We further held in that opinion thatin determining 

whether travel is included pursuant to the General Appropriations Bill "for State purposes" the questions to be decided 

are whether the result of such travel is the accomplishment 

of a governmental function and the means and methods adopted 

are reasonably necessary. 

In Attorney General's Opinion No. WW-245 (1957) this 

office held that the traveling expenses incurred by district 

attorneys attending conferences of district and county 

attorneys for the purpose of study and discussion of mutual 

problems in the field of criminal prosecution was authorized. 

In that opinion we quoted Subdivision F of Section 29, of 

Article 6 of House Bill 133, Acts of the 55th Legislature, 

effective September 1, 1957, which provided as follows: 

"Travel expenses may be reimbursed from 

the appropriations made in this Act only 

where the purposes of the travel performed 

are clearly for the conduct of the State's 

official business and in consonance with the 

legal responsibilities of the agency of the 

State represented." 

We concluded that opinion by saying that the travel expenses 

of a district attorney coming to Austin to attend the conference may be paid by the Comptroller out of the money appropriated in House Bill No. 133, Acts 55th Legislature. 

It was the former Attorney General's Opinion in V-354 

that since the Court of Criminal Appeals appoints a State's 

prosecuting attorney to represent the State in all proceedings 

before that court, a district attorney would not be entitled 

to his mileage or expenses when he appeared before the Court 

of Criminal Appeals to assist the State's prosecuting attorney 

in the preparation of the necessary briefs that precede 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 

Appeals has a State's Attorney to present cases before them on 

appeal, but whether the travel by a District Attorney to 

Austin to argue an appeal before the Court of Criminal Appeals 

or a Motion for Rehearing is State's business. It has been 

the opinion of this office that to entitle a State employee 

to be reimbursed for travel expenses the facts must establish 

"that the relationship between the purpose of the trip and 

the accomplishment of the functions of the government entrusted to the employee is reasonable, substantial and direct." 
Hon. William E. Carroll Page 6 Opinion No. ~~-1276 

The District Attorney is entrusted by the Constitution 

and the citizenry of his district to prosecute those charged 

with a violation of a crime made punishable in his jurisdiction by ~,the Legislature. A district attorney who 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 predicating his appeal and the Court of Criminal 

Appeals is entitled to the benefit of the district attorney's 

superior knowledge of the case. To continue to pursue his 

function as a prosecutor by assisting the State's Attorney on 

an appeal from conviction is a function which is reasonable, 

substantial, and of direct benefit to the State of Texas, and 

he is, in our opinion, entitled to reimbursement for his actual and necessary expenses in connection with 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 appearing before the Court of 

Criminal Appeals to argue ,a criminal case 

or a motion for rehearing. Prior Attorney 

General's Opinion No. 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.