E OF TEXAS

A~JSTIN ~1.TEXAS

Honorable Geo. H. Sheppard Comptroller of PublicAccounts Austin, Texas
Dear Sirr OpinionNo. O-7327 Re: Authority of the Comptroller of Public Accounts to issuewarrants inpayment of the certlflcates described herein.
Your request for an opinl.on upon the above question has been received and considered by this department. The facts from the attached witness certificates, letters end affid~avits

are as follows: The Assistant CriminalDistrict Attorney of Tarrant County, Texas, wrote a letter to claimants, J. C. Riley and Harvey Riley of Clarendon, Texris, asking them to appear before the grand jury o:fTnrrnnt Coufity to testify concerning an alleged felony. The claimants appeared and testified and the Assistant CriminalDlstrlct Attorney made an affidavit to such facts and further stated that such testimonywas material snd that no subpoenawas issued to either claimant. The claimants seek to recover their statutory fees.

The authority of the Comptroller of PublicAccounts to approve the above mentioned clslms for payment must be found inArticle 1036, Code of CrlmInal Procedure, as amended In 1941. The pertinent provis,ions of said Article 2re as follows:

"Witnesses shall receive 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 returnLng 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; and the foreman of the grand jury, or the District Clerk, shall issue suchwitness certificates therefor, after d~eductlngtherefrom the amounts advanced by the officers serving said subpoenas,as shownby the returns on said subpoenas;which cer-Honorable Geo. H. Sheppard, page 2 0-7327

tificatea shall be approvedby theDistrict. Judge, and recorded by the Clerk ina well-bound book kept for that purpose; provided, thatwhen an Indictmentcan be found from the evidence taken before an inquest or examining trial, no subpoena or attachment shall issue for a witness who reaides out of the county inwhich the prosecution la pending to appear before a grand jury. When the grand jury shall certify to theDistrict Judge that sufficient evidence can not be securedupon which to find an Indictment,exceptupon testlmony of nonresidentwitnesses, theDistrict Judge may have subpoenas Issuedas provided for by law to other counties forwitnesses to testifybefore the grand jury,not to exceed onewitness to any one fact, nor more than three (3) witnesses to any one case pe~ndlng before the grand jury." When the foregoingprovisions of the statute'are considered together, as they must, it is apparent that the State of Texas, under the facts above stated,does not pay the mlleage and per diem thereinprescribed to a witness who attends a grand jurywithout the county of his residence unleas he does so In obedience to a subpoena 'Issuedunder the provisions of law." The statuteprescribes the procedure to be followed in obtaininga subpoena for such a witness:

"Whenthe grand jury shall certify to the Diatrict Judge that sufficient evidence cannot be secured upon which to find an indictment,except upon the testimony of non residentwltneaaea, theDistrict Judge may have subpoenas issuedas prescribedby law to other counties forwitnesses to testify before the grand jury

. . .' Article 461, Code of CrlmInal Proceduredefines a "subpoena." The pertinentpart of saidArticle Is as follows:

"A 'subpoena'is a writ issued to the sheriff or other proper officer commandinghim to summon one or more persons thereinnamed to appear . . . on a certainday

. . .before

. . .the grand jury

. . .The writ shallbe dated and signed officially by the court or clerk Issuing same,but need not be under seal." By the terms of Art. 463, C. C. Pi.the district clerk or his deputy is the officerdesignated to issue subpoenas to other countlea.. -

Honorable Geo. H. Sheppard, page 3 O-7327

We have founds

no statute empowerlnga county attorney, district attorney or criminaldistrict attorney or an assistant of either of said officers to issuea subpoena for a witness to appear before a grand jury.

The undisputed facts are that no subpoena of any characterwas ever issuedby the district clerk of Tarrant County for either of saidwitnesses or that the grand jury of said county ever apnlied to the Judge of *he Criminal District Court of said county for a subpoena for either of them, but that both witnesses appeared before the grand jury upon thewritten request of an Assistant CriminalDistrict Attorney of said county.

In view of the foregoing,we are forced to the inevitable conclusion that these claFms forwitness fees and mileage may not be legally paid by the State of Texas. Any other conclusionwould do violence to the plain provisions of the statute and permit payment of such fees and mileage to a witness for attending a grand jurywithout the county of his residenceupon the request of some officer, other than in obedience to a subpoena issuedby a district clerk upon the order of the dLstr1ct judgeof h1s county, as provided by Article 1036, as amended.

We are herewithreturning both witness certificates and the affidavits attached thereto. Yours very truly ATTORNEYGENERAL OF TEXAS
By a/JamesAnderson, Jr. James Anderson, Jr., Assistant JA:zd:wc Encl.

APPROVED SEP 5, 1946 s/CarlosC. Ashley FIRST ASSISTANT ATTORNEYGENERAL Approved Opinion Committee By s/BWB Chairman