E 

OF TEXAS 

A~JSTIN ~1. TEXAS 

Honorable Geo. H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sirr Opinion No. O-7327 

Re: Authority of the Comptroller of 

Public Accounts to issue warrants 

in payment 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 Criminal District 

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:f Tnrrnnt Coufity 

to testify concerning an alleged felony. The claimants appeared and testified and the Assistant Criminal Dlstrlct 

Attorney made an affidavit to such facts and further stated 

that such testimony was material snd that no subpoena was 

issued to either claimant. The claimants seek to recover 

their statutory fees. 

The authority of the Comptroller of Public Accounts 

to approve the above mentioned clslms for payment must be 

found in Article 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 such witness certificates therefor, after d~eductlng therefrom the amounts 

advanced by the officers serving said subpoenas, as 

shown by the returns on said subpoenas; which cer- 
Honorable Geo. H. Sheppard, page 2 0 -7327 

tificatea shall be approved by the District. 

Judge, and recorded by the Clerk in a well-bound 

book kept for that purpose; provided, that when 

an Indictment can 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 in which the prosecution 

la pending to appear before a grand jury. When 

the grand jury shall certify to the District Judge 

that sufficient evidence can not be secured upon 

which to find an Indictment, except upon testlmony of nonresident witnesses, the District Judge 

may have subpoenas Issued as provided for by law 

to other counties for witnesses to testify before 

the grand jury, not to exceed one witness to any 

one fact, nor more than three (3) witnesses to 

any one case pe~ndlng before the grand jury." 

When the foregoing provisions 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 therein prescribed to a witness who 

attends a grand jury without the county of his residence unleas he does so In obedience to a subpoena 'Issued under the 

provisions of law." The statute prescribes the procedure to 

be followed in obtaining a subpoena for such a witness: 

"When the 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 resident wltneaaea, the District 

Judge may have subpoenas issued as prescribed by law 

to other counties for witnesses to testify before the 

grand jury . . .' 

Article 461, Code of CrlmInal Procedure defines a 

"subpoena." The pertinent part of said Article Is as follows: 

"A 'subpoena' is a writ issued to the sheriff 

or other proper officer commanding him to summon 

one or more persons therein named to appear . . . 

on a certain day . . . before . . . the grand jury 

. . . The writ shall be 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 officer designated to issue subpoenas to other countlea. 
. - 

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

We have founds no statute empowerlng a county attorney, district attorney or criminal district attorney or an 

assistant of either of said officers to issue a subpoena for 

a witness to appear before a grand jury. 

The undisputed facts are that no subpoena of any 

character was ever issued by the district clerk of Tarrant 

County for either of said witnesses 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 the written request of an Assistant Criminal District 

Attorney of said county. 

In view of the foregoing, we are forced to the inevitable conclusion that these claFms for witness fees and 

mileage may not be legally paid by the State of Texas. Any 

other conclusion would do violence to the plain provisions 

of the statute and permit payment of such fees and mileage 

to a witness for attending a grand jury without the county 

of his residence upon the request of some officer, other 

than in obedience to a subpoena issued by a district clerk 

upon the order of the dLstr1ct judge of h1s county, as provided by Article 1036, as amended. 

We are herewith returning both witness certificates 

and the affidavits attached thereto. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By a/James Anderson, Jr. 

James Anderson, Jr., 

Assistant 

JA:zd:wc 

Encl. 

APPROVED SEP 5, 1946 

s/Carlos C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman