, AUS-irlN 11. TEXAS 

Hon. Homer Qarrlson, Jr., Opinion lo. o-7216 

Dlreator Ret When a menber of the DepartT(lxas ~Dspartment ,of ‘Public 

Safety 

ment of Public 8afrty has been 

eubpoeqaed to ap 

‘ear aa a witCamp, Mabry neaa and his ter ? lmony would be 

,kastin, Texas of no material value In the snccasaful prosecution of the ease, 

,would another member of the department, f’or whom a subpoena had 

not been lamed be entltled to 

per diem and miirage fee8 under 

A rtiole 1036 C.CIPI, if he appeared a8 a whqeee and testified 

Dear Sir: 

at the trial to faots that were 

material. 

Your rebent request for an opialon on the questloa aa 

restated above has been reoelved and carefully ~owialdered by 

this department. 

Article 1036, Code of Criminal Rooedure or Texas provides, and we quote the applicable portions of the Btatute as 

f ollowa I 

“(1) Any wltneee who may have been rubpoenaed, 

or ehall have been reoognlzied or attaohed and given 

bon& ror hia appearance bel’ore any Court, or before 

any grand jury, out of the oounty or hir rrridenoe, 

to teatlfy in a felony oase regardlese of dlrporltion of said ease, and who appears in oomplianoe 

with the obllgatione of such reoognlaanor or bond, 

shall be allowed~ Three (3) Cent8 per mile going to 

nearest praotloal oonveyanoe, 

and returnlnng from the Court o&gran; dur{&ycth; 

per day ror eaoh day he may neoeraarily be absent 

f’rom home am a wltnera In euoh oarel 

1 , l l . 

tlWitneeeer ahall reoelve fron the Btate, for 

attendanoe upon Dlrtriot Courtr and grand juri#r 

in countlea other than that of their rerldenae in 

obedimoe to rubpoenar irnued under the provlrioar 
- 

Hon. Homer Garrison, Jr., page 2 (0-72163 

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; 

and the foreman of the grand jury, or the District 

Clerk, shall issue such witness certificates therefor after deducting therefrom the amounts advanced 

by ihe officers serving said subpoenas, as shown by 

the returns on said subpoenas; which certificates 

shall be approved by the District Judge and recorded by the Clerk in a well-bound boo& kept for 

that purpose; . . .U 

“(2) Witness Sees shall be allowed only to such 

witnesses as may have been summoned on the Sworn wrltten application of the State’s attorney or the defendant or his attorney as provided in Article 463, Code 

of Criminal Procedure, which sworn application must be 

made at the time of the procuring of the subpoena 

tachment for, or recognizance of, the witness. The 

atJudge to whom an application for attachment is made 

may, in his discretion, grant or refuse such application, when presented in termtime. 

“(3) The witness shall make an affidavit stating 

the number of miles he will have traveled going to 

and returning from the Court 

h 

by the nearest practical 

conveyance, and the number o days he will have been 

necessarily absent in going to and returning from the 

place of trial j which affidavit shall be a part of ~the 

certificate issued by the clerk, copy of which is to 

be kept in a well-bound book. . . . 

‘1. . . . 

“(4) The District or Criminal District Judge, 

when any such claim is presented to him, shall examine 

the same carefully, and inquire into the correctness 

thereof, and approve same, in whole or in part, OF 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 Comptroller, as provided for in Article 1035 of the Code of 

Criminal Procedure; and said claim with the action of 

the Judge thereon shall be entered on the Minutes of 

said Court; and upon the approval of said claim by the 

Judge, the Clerk shall make a certified list of said 

claim, upon forms prescribed by the Comptroller, furnishing such information as required by him, and send the 

same to the Comptroller at such times as he may require, 
Hon. Homer Garrison, Jr., page 3 (O-7216) 

for which service the Clerk shall be entitled ,to 

a fee of Fifty (50) Cents whiah shall be paid by 

the witness. .Th.e service mentioned in the foregoing sentence shall include the issuance of certificate, swearing the witness to claim for witness Sees, and reporting to Comptroller, and witness 

shall not be required to pay any additional amount 

for the- completion of the’ certificate. 

“(5) The Comptroller, upon receipt of such claim 

and the certified list provided for in the foregoing 

section, shall carefully examine the same, and if he 

deems said claim correct; and in compliance with and 

authorized bv law in everv resoe& draw his warrant 

on the State Treasury for the amodt due in favor of 

the witness entitled to same, or to any person such 

certificate has been assigned by such witness, but 

no warrant shall issue to any assignee of such witness’s claim unless the assignment is made under oath 

and acknowledged before’ some person duly authorized 

to administer oaths, certified to by the officer and 

under seal. . . .ll ~(Underscoring added) 

Article 463, Code of Criminal Procedure of Texas 

reads as Sollows: 

“Before the clerk or his deputy shall be required 

or permitted to issue a subpoena in any felony case 

pending in any District or Criminal District Court of 

this State of which he is clerk or deputy, the defendant or his ‘attorney or the State’s attorney shall make 

written, sworn application to such clerk for each witness desired. Such application shall state the name 

of each witness desired, the location and vocation, if 

known, and that the testimony of said witness is material to the State or to the defense. As far as is practical such clerk shall include in one subpoena the 

names of all witnesses for the State and for defendant, 

and such process shall show that the witnesses are SW 

moned for the State or for the defendant. When a witness has been served with a subpoena, attached or placed under recognizance at the instance of either party 

in a particular case, such execution of process shall 

inure to the benefit of the opposite party in such case 

in the event such opposite party desires to use such 

witness on the trial of the case, provided that when a 

witness has once been served with a subpoena, no Surther .subpoena shall be issued for said witness.11 
Hon. Homer Garrisons. Jr ., page 4 (O-7216) 

In construing a 

the principle guide 

statute or an act of the Legislature, 

should be to determine the intention of the 

Le islature in ,passing the act. 

(2f of Article 1036, C C P 

By the language used in Section 

. . ., which is definite and clear, the 

Legislature intended that only such persons appearing in court as 

witnesses, for vhom subpoenas were issued by the Clerk of the 

court, upon a sworn application of the State’s Attorney, the defendant, or the defendant16 attorney, be allowea the Sees mentioned in Section (1) .oS the Article. Section (4) of the Article 

imposes a duty upon the District Judge, using the words of the 

statute, II. . . to examine the claim carefully and to inquire 

into the correctness thereof, . . .I’ and approve or disapprove 

the claim as the facts and law may require. Under the facts as 

outlined in your request, it would be the duty of the District 

Judge to refuse to approve a claim for such a witness for whom 

; Eugpoena had not been issued in compliance with Article 463, 

. . . 

Section (43, of Article 1036 C.C.P., provides that 

the District Judge’s approval is conditioned upon and subject to 

the approval of the State Comptroller. Under the provisions of 

Section 5, the Comptroller is charged with the duty of examinlng 

such claims approved by District Judges to ascertain whether or 

not the claims are correct and in compliance with and authorized 

by law in every respect, before he draws a warrant on the State 

Treasury in favor of the person claiming the Sees provided in 

Section (1) of the Article. 

You stated in your letter, that for a number of years 

it has been the policy of the Comptroller to issue warrants in 

payment of similar claims if the Clerk of the Court issued witness certificates and they were approved by the District Judge. 

We have been unable to find any statute or rule of law, either 

directly or by implication authorizing the Comptroller or the 

District Judges at their d$scretion to waive or disregard the 

grr;sions of Sections (21, (31, (4j and (5) of Article 1036, 

. . ., in approving and paying such claims. 

You are respectfully advised that it is the opinion of 

this department that such a witness for whom a subpoena had not 

been issued in compliance with Article 463, C.C.P., is not entitled to per diem and mileage Sees under the provisions of Article 1036, Code of Criminal Procedure of Texas. 

We wish to point out that State employees cannot claim 

traveling expenses from the State and also witness fees and mileage from the Court in State cases. 

“,,‘o;e;isof 

See Subdivision 11(a), Secthe Departmental Appropriation Bill, 49th Legislature 

1945 (General and Special Laws, page 943) which reads 

as foll&s: 
Hon. Homer Garrison, Jr., page 5 (0-7216) 

"No traveling expenses shall be claimed allowed, 

or paid unless incurred while traveling on Szate business. Any State oSSicial or employee entitled to traveling expenses out of State appropriations herein made, who 

is legally or oSSicially required to be present at the 

trial of any State case, shall not claim traveling expenses from the State and also from the ~Court wherein said 

case is pending. If by oversight, duplicate claims are 

filed for said traveling expenses and collected, then said 

officers or employees shall reimburse and refund to the 

State Treasurer an amount equal to the respective amount 

collected under such witness Sees and mileage claizkN 

Trusting that the above satisfactorily answers your inquiry, we are 

Yours very truly 

ATTOFUVRY GENEBAL OF TEXAS 

By /a/ Louis W. Woosley 

Louis W. Woosley, Assistant 

APPROVED APR 27, 1946 

/s/ Carlos C. Ashley 

FIRST ASSISTANT ATTORNEY GENERAL 

APPROVED: OPINION COMMITTEE 

BY: BWB, CBAIRMAN 

LWb?r zd:wb