lion6 TomC. King 

### OpinionNO.O-2465

stat@ Auditor and Efficiency Ret Is it optional with the emExpert kiustln,~ Texas floyee ~“0choose either source the departmental appropriation for traveling expenses, or the statutory mileage andwitness fee) from which to bereimbursed? Dear Sir: And~related questions.

Your recent request for anopinion of this Department onthe questions as are herein stated has been received.

Wequote from your letter as follows: “The current Departmental Appropriation Bill de- : clares in Section2 (under the-head, *Traveling Expenses$ 1I l’;k~y State official or employee entitled to traveling.expenses out of State appropriations herein made, whois 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 astate employee?Hon. TomC. King, page 2 

### (O-2465)

“3. In the case of aduplication, 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 acredit to the costs of the case, or as a revenue ltem?l’ Article 

### 1036,Code of Criminal Procedure, reads in part, as follows:

“Anywitness whomayhave been recognized, subpoenaed or attached, and given bond for his appearance before any court, or before any grand jury, out of the county ofhis residence to testify in afelony case, andwhoappears 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 maynecessarily be absent from homeas awitness 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 maynecessarily be absent from homeas awitness, to be paid as nowprovided by law;

...I’ Section 

### 3of 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 hewill have traveled going to and returning from the court, bythe nearest practical conveyance, and the number of days hewill 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. Nowitness shall receive pay for his services as awitness in more than one case at any one term of the court. Fees shall not be allowed to more than twowitnesses to the same fact unless the judge before whomthe cause is tried shall, after such case has been tried, contlnued, or otherwise disposed of, certify that such witnesses were necessary in the cause.
. .‘IHon. TomC.King,? page 3 

### (O-2465)

Awitness to be entitled to the compensation :IJpi’~~bvided by .A?$icle 

### 1036must be legally subpoenaed hy th? ~‘.~.::r’; before he,-Is entitled to such compensation.

It is well settled that nopublic official is entitl,;l to rece’ive.and retain any fees or compensation unless there is aprovislon~. madeby the legislature giving the same to him. See the case of‘McCalla vs. City of Rockdale, 

### 246S.W. 

### 654;Duclosv. 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. 

### 14S.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 aswhether 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 amisdemeanor, used the following language :

‘1

. . There being nodifference with reference to misdemeanor c’ases as to the character of witnesses whether officers or not, the officer would comewithi; the general category, as weunderstand the law, as witness. His official character, so far as that proposition is. concerned, would makenodifference.

. .‘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 donot specifically draw aline 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 Isoffice that State Highway Patrolmen are entitled to mileage and the TwoDollars per diem as out-of-county witnesses in afelony case in the court and before the grand jury investigating the felony. However, such Highway Patrolmen receiving mileage fees and TwoDollars per diem from the~~court are not entitled to collect the mileage fee and the TwoDollars per diem and also the traveling expenses allowed by the general appropriation bill.

In this connection wewant to point out that if an of- ~ficer or employee is duly subpoenaed in afelony case in whichHon. TomC.King, page 4 

### (O-2465) -.

he is not officially connected or has rendered no official service, hewould 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.

Onthe other hand where an officer or state employee is subpoenaed as awitness before the court In afelony case or agrand jury investigating afelony in acounty other than that ofhis residence where such officer or employee is or has been officially connected with the case or has rendered any official service and has performed someofficial duty in connection therewith such officer or employee mayclaim mileage fees and the per Aiem as allowed by Article 

### 1036,supra, or he mayclaim the traveling expenses as allowed by the general appropriation bill; however, he cannot claim both the statutory mileage andwitness fee and the traveling expense allowed, but mayclaim either at his option.Wethink 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 andwitness 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 awitness 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 andmileage 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. Webelieve that under Section 2of the Departmental Appropriation Bill, above quoted, that this refund would bemade 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 agrand jury investigating afelony case.

are Trusting that the foregoing answers your inquiry, we

APPROVED

JUL8, 1940 Yours very truly Js/ G1enn.R. Lewis ATTORNEY GENERAL

**OF**TEXAS (Acting) ATTORNEY GENEZUOFTEXAS B~d$~ ,",,":~~m~~'~~~~~~;nt APPROVED:OPINIONCOMMITTEE. BY: ‘BWB,CHAIRMAI~ AW,ew:wb