, AUS-irlN11.TEXAS

Hon. HomerQarrlson, Jr., Opinion lo. o-7216 Dlreator Ret Whena menber of the DepartT(lxas~Dspartment,of‘Public Safety ment of Public 8afrty has been 

### eubpoeqaed to ap 

### ‘ear aaa witCamp, Mabry neaa andhis ter?lmonywould be ,kastin, Texas of no material value In the snccasaful prosecution of the ease, ,would another memberof the department, 

### f’orwhoma subpoena had not been 

### lamed be entltled to 

### per diem and miirage fee8 under Artiole 1036 C.CIPI, if he appeared a8 awhqeee 

### andtestified 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 

### ~owialderedby this department.

Article 1036, Code of Criminal Rooedure or Texas provides, andwe quote the applicable portions of the Btatute as followa I

“(1) 

### Anywltneee whomayhave 

### 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, andwhoappears 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’romhomeamawltnera In euoh oarel

1, l l . tlWitneeeer ahall reoelve fron the Btate, for attendanoe uponDlrtriot Courtr 

### andgrandjuri#r in countlea other than that of their rerldenae in 

### obedimoe to rubpoenar irnued under the provlrioar-

Hon. HomerGarrison, Jr., page 2 (0-72163

of law Three (3) Cents per mile, going to andreturning from the Court or grand jury, by the nearest practical conveyance, andTwoDollars ($2) per day for each day they maynecessarily be absent from homeas awitness to be paid as nowprovided by law; andthe 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 shownby the returns on said subpoenas; which certificates shall be approved by the District Judge and recorded by the Clerk in awell-bound boo& kept for that purpose;
. . .U

“(2) Witness Sees shall be allowed only to such witnesses as mayhave been summonedon the Swornwrltten application of the State’s attorney or the defendant or his attorney as provided in Article 463, Code of Criminal Procedure, which sworn application mustbe madeat the time of the procuring of the subpoena tachment for, or recognizance of, the witness. TheatJudge to whoman application for attachment is made may, in his discretion, grant or refuse such application, whenpresented in termtime.

“(3) Thewitness shall makean affidavit stating the numberof miles hewill have traveled going to andreturning from the Courthby the nearest practical conveyance, andthe number o days hewill 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 awell-bound book.

. . .

‘1.

. . .

“(4) TheDistrict or Criminal District Judge, whenany such claim is presented to him, shall examine the samecarefully, and inquire into the correctness thereof, and approve same, in whole or in part, OFdisapprove the entire claim, as the facts andlaw mayrequire; 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; andupon the approval of said claim by the Judge, the Clerk shall makea certified list of said claim, upon forms prescribed by the Comptroller, furnishing such information as required by him, and send the sameto the Comptroller at such times as he mayrequire,Hon. HomerGarrison, 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.eservice mentioned in the foregoing sentence shall include the issuance of certificate, swearing the witness to claim for witness Sees, and reporting to Comptroller, andwitness shall not be required to pay any additional amount for the-completion of the’ certificate.

“(5) The Comptroller, upon receipt of such claim andthe 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& drawhis warrant on the State Treasury for the amodt due in favor of the witness entitled to same, or to anyperson such certificate has been assigned by such witness, but nowarrant shall issue to any assignee of such witness’s claim unless the assignment is madeunder oath andacknowledged before’ someperson 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 anyfelony 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 andvocation, if known, andthat the testimony of said witness is material to the State or to the defense. Asfar as is practical such clerk shall include in one subpoena the namesof all witnesses for the State andfor defendant, and such process shall showthat the witnesses are SW monedfor the State or for the defendant. Whenawitness 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.11Hon. HomerGarrisons. 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, CCP By the language used in Section

. . ., which is definite and clear, the Legislature intended that only such persons appearing in court as witnesses, for vhomsubpoenas 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 andto inquire into the correctness thereof,

. . .I’ and approve or disapprove the claim as the facts and law mayrequire. Underthe facts as outlined in your request, it would be the duty of the District Judge to refuse to approve a claim for such awitness 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 awarrant 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 numberof 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 andthey were approved by the District Judge. Wehave 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 awitness for whoma subpoena hadnot 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.

Wewish to point out that State employees cannot claim traveling expenses from the State and also witness fees andmileage 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. HomerGarrison, Jr., page 5 (0-7216)

"Notraveling expenses shall be claimed allowed, or paid unless incurred while traveling on Szate business. AnyState 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 ~Courtwherein 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

OFTEXAS By /a/ Louis W.Woosley Louis W. Woosley, Assistant APPROVED

APR27, 1946 /s/ Carlos C. Ashley FIRSTASSISTANT

ATTORNEY

GENERAL APPROVED:

OPINIONCOMMITTEE BY: BWB,CBAIRMAN LWb?r zd:wb