lion6 Tom C. King Opinion NO. O-2465 

stat@ Auditor and Efficiency Ret Is it optional with the emExpert 

kiustln,~ Texas 

floyee ~“0 choose either source 

the departmental appropriation 

for traveling expenses, or the 

statutory mileage and witness 

fee) from which to be reimbursed? 

Dear Sir: And~related questions. 

Your recent request for an opinion of this Department 

on the questions as are herein stated has been received. 

We quote from your letter as follows: 

“The current Departmental Appropriation Bill de- : 

clares in Section2 (under the-head, *Traveling Expenses$ 1 I 

l’;k~y State official or employee entitled to traveling.expenses out of State appropriations herein made, 

who is legally or officially 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 oversignt, 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 fee and 

mileage claim. t 

“For the proper construction of this clause your 

opinion is respectfully requested as follows: 

“1. Is it optional with the employee to choose elther source (the departmental appropriation for traveling expense,.or the statutory mileage and witness fee) 

from which to be reimbursed? 

“2, If the mileage and expense allowance as computed-under the terms of the appropriation bili should 

be greater than as computed under the statutes relating 

to aourt costs, would the former measure be appropriate 

for the claim of a state employee? 
Hon. Tom C. King, page 2 (O-2465) 

“3. In the case of a duplication, is the refund 

to be.made.dlrect to the State Treasurer, so as to be 

credited to the traveling-expense account of the department with which the employee is connected; or, 

through the court in which the trial was had, thus operating as a credit to the costs of the case, or as a 

revenue ltem?l’ 

Article 1036, Code of Criminal Procedure, reads in 

part, as follows: 

“Any witness who may have been recognized, subpoenaed or attached, and given bond for his appearance 

before any court, or before any grand jury, out of the 

county of his residence to testify in a felony case, 

and who appears in compliance with the obligations of 

such recognizance or bond, shall be allowed his actual 

traveling expenses, not exceeding four cents per mile 

going to and returning from the court or grand jury, 

by the nearest practical conveyance, and two dollars 

per day for each day he may necessarily be absent from 

home as a witness in such case. 

llWitnesses 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 their actual 

traveling expenses, not exceeding four cents per mile, 

going to and returning from the court or grand jury, by 

the nearest practical conveyance, and two dollars per 

day for each day they may necessarily be absent from 

home as a witness, to be paid as now provided by law; . ..I’ 

Section 3 of the above mentioned article provides that: 

“Before the close of each term of District Court, 

the witness shall make an affidavit stating the number 

of miles he will have traveled going to and returning 

from the court, by the nearest practical conveyance, and 

the number of days he will have been necessarily absent 

in going to and returning from the place of trial; which 

affidavit shall be filed with the papers of the case. 

No witness shall receive pay for his services as a witness in more than one case at any one term of the court. 

Fees shall not be allowed to more than two witnesses to 

the same fact unless the judge before whom the cause 

is tried shall, after such case has been tried, contlnued, or otherwise disposed of, certify that such witnesses were necessary in the cause. . .‘I 
Hon. Tom C. King,? page 3 (O-2465) 

A witness to be entitled to the compensation :IJ pi’~~bvided by .A?$icle 1036 must be legally subpoenaed hy th? ~‘.~.::r’; 

before he,-Is entitled to such compensation. 

It is well settled that no public official is entitl,;l 

to rece’ive.and retain any fees or compensation unless there is 

a provislon~. made by the legislature giving the same to him. See 

the case of ‘McCalla vs. City of Rockdale, 246 S.W. 654; Duclos v. 

Harris County, .298 S.W. ,417 and authorities cited therein. Along 

the same line, the courts have held,that the legislature may 

provide for the allowance of expenses incurred~ by an officer in 

addition to the compensation fixed by law. 

14 S.W. (2d) 786. 

Terre11 vs. King, 

Also see the Article 3897' Vernon’s Annotated 

Civil Statutes, and.,the authorities cited thereunder pertaining 

to the ,filing of expense accounts of various officials. 

In the case of Lay vs. State, 202 S.W. 729, the question as whether a salaried pol.iceman was entitled to his per 

diem under the old bticle~ 1137b, Code of Criminal Procedure, 

(now repealed). The court, in this case, after holding this 

’ article applicable only to ‘felony cases and not to the case vnder consideration, which was a misdemeanor, used the following 

language : 

‘1 . . There being no difference with reference 

to misdemeanor c’ases as to the character of witnesses 

whether officers or not, the officer would come withi; 

the general category, as we understand the law, as witness. His official character, so far as that proposition is. concerned, would make no difference. . .‘I 

Under the case of Lay vs. State, supra, it seems that 

the official character of the witness’ makes no difference as to 

the perdiem, where the statutes do not specifically draw a line 

between the officers as witnesses and ordinary ‘witnesses. Article 1036, Code of Criminal Procedure, -supra, the present statute 

providing fees and mileage for out-of-county witnesses in felony 

cases, does not’make this distinction. It has long been the 

Departmental construction of the Comptroller I s off ice that State 

Highway Patrolmen are entitled to mileage and the Two Dollars per 

diem as out-of-county witnesses in a felony case in the court and 

before the grand jury investigating the felony. However, such 

Highway Patrolmen receiving mileage fees and Two Dollars per diem 

from the~~court are not entitled to collect the mileage fee and 

the Two Dollars per diem and also the traveling expenses allowed 

by the general appropriation bill. 

In this connection we want to point out that if an of- 

~ficer or employee is duly subpoenaed in a felony case in which 
Hon. Tom C. King, page 4 (O-2465) -. 

he is not officially connected or has rendered no official service, he would not be entitled to claim the traveling expenses as 

allowed by the general appropriation bill, but would be entitled 

to claim the compensation as provided by Brtlcle 1036, supra. 

On the other hand where an officer or state employee 

is subpoenaed as a witness before the court In a felony case or 

a grand jury investigating a felony in a county other than that 

of his residence where such officer or employee is or has been 

officially connected with the case or has rendered any official 

service and has performed some official duty in connection therewith such officer or employee may claim mileage fees and the 

per Aiem as allowed by Article 1036, supra, or he may claim the 

traveling expenses as allowed by the general appropriation bill; 

however, he cannot claim both the statutory mileage and witness 

fee and the traveling expense allowed, but may claim either at 

his option. 

We think that the answer to your first question ‘necessarily answers your second question as it is optional with the 

employee to choose either the departmental appropriation for 

traveling expenses or the statutory mileage and witness fees from 

which to be reimbursed under the conditions above stated, and 

that it would be appropriate for the employee to choose either. 

However, as above stated, it is to be noted that if the officer 

or employee is subpoenaed only as a witness and has no official 

connection with the case, he could claim only the compensation 

as allowed by Article 1036. 

In answer to your third question, you are respectfully 

advised that if the per diem and mileage under Article 1036, supra, and the traveling expenses as allowed by the general appropriation bill are collected, then such State employees would be 

required to reimburse and refund to the State Treasurer an amount 

equal to the respective amount collected as such witness fee and 

mileage under Brticle 1036, supra. We believe that under Section 

2 of the Departmental Appropriation Bill, above quoted, that this 

refund would be made direct to the State Treasurer and that the 

same would be credited to the fund appropriated for the purpose 

of compensating out-of-county witnesses subpoenaed in felony cases 

before the court or before a grand jury investigating a felony 

case. 

are 

Trusting that the foregoing answers your inquiry, we 

APPROVED JUL 8, 1940 Yours very truly 

Js/ G1enn.R. Lewis ATTORNEY GENERAL OF TEXAS 

(Acting) ATTORNEY GENEZU OF TEXAS B~d$~ ,",,":~~m~~'~~~~~~;nt 

APPROVED: OPINION COMMITTEE. 

BY: ‘BWB, CHAIRMAI~ 

AW,ew:wb