AUSTIN. %EXAS 98711 

March 14, 1966 

Honorable Robert S. Calvert Opinion No. C-637 

Comptroller of Public Accounts 

Austin, Texas Re: Whether an appropriation 

could be made for the 

payment of certain witness fees, if the claims 

therefor are not filed 

in the Comptroller's Office within twelve months 

from the date they became 

due, under the provisions 

of Article 35.27, Vernon's 

Code of Criminal Procedure, 

Dear Sir: and related questions. 

You have recently requested an opinion of this office 

concerning Article 35.27, Vernon's Code of Criminal Procedure 

and Attorney General's Opinion C-579, wherein this office held 

that out-of-county witnesses subpoenaed in misdemeanor cases 

in which confinement in jail is a permissible punishment, outof-county witnesses subpoenaed to appear in a habeas corpus 

proceeding, out-of-county witnesses subpoenaed to appear at a 

coroner's inquest, and an out-of-county witness subpoenaed to 

appear before a court of inquiry, accrue witness fees under 

Article 35.27, Vernon's Code of Criminal Procedure, but that 

no money has been appropriated for the payment of such fees. 

In this connection you have asked three questions as follows: 

1) Is there pre-existing law for an appropriation to be made at a later date to 

pay these witnesses? 

2) If the witness fees accrued to witnesses 

under the above enumerated situations are 

not placed on file in the Comptroller's 

Office for payment and twelve months 

elapse from the due and payable date, 

would such witness fees be barred to such 

an extent that an appropriation could not 

be made for payment? 

3) Who should submit the witness fee bill to 

the Comptroller's Office, the witness, 

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Honorable Robert S. Calvert, page 2 (c-637) 

the district or county clerk, or the assignee if one is made? 

In answer to your first question, it is the opinion of 

this office that there is pre-existing law for an appropriation 

to be made at a later date to pay such witness fees. Article 

3, Section 44 of the Constitution of the State of Texas, provides: 

"The Legislature shall provide by law for 

the compensation of all officers, servants, 

agents, and public contractors, not provided 

for in this Constitution, but shall not grant 

extra compensation to any officer, agent, 

servant, or public contractors, after such 

public service shall have been performed or 

contract entered into, for the performance 

of the same; nor grant, by appropriation or 

otherwise, any amount of money out of the 

Treasury of the State, to any individual, on 

a claim, real or pretended, when the same 

shall not have been provided for by pre-existing law; nor employ any one in the name of 

t.;..Etate, unless authorized by pre-existing 

Article 35.27, Vernon's Code of Criminal Procedure, ., 

constitutes pre-existing law which authorizes a legislative 

appropriation. The Legislature has authority to appropriate 

such funds as are necessary for the payment of such witness 

fees which have accrued and have been incurred by virtue of 

Article 35.27, Vernon's Code of Criminal Procedure. 

In answer to Question No. 2, it ia the opinion of this 

office that such claims for witness fees must be filed with 

the Comptroller's Office within twelve (12) month8 after the 

same become due and payable. If the same are not filed within such time period they are barred, and the Legislature would 

have no authority to appropriate funds for their payment under 

the aforementioned Article 3, Section 44, Constitution of the 

State of Texas, as Article 35.27, Section 5, provides in part 

as follows: 

"All such claims not filed in the office of 

the Comptroller within twelve months from the 

date same became due and payable shall be forever barred." 

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Honorable Robert S. Calvert, page 3 (C-637) 

In answer to your third question, Article 35.27, Sections 3, 4 and 5 provide the procedure to be used in filing 

such witness fees and is as follows: 

“(3) Th e 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 a part of 

the certificate issued by the clerk, copy of 

which is to be kept in a well-bound book. 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, continued or otherwise disposed 

of, certify that such witnesses were necessary in the cause. Witness, when attached 

and conveyed by sheriff, shall not be entitled to receive fees while in custody of such 

officer. 

"No witness subpoenaed or attached for the 

purpose of proving the general reputation of 

the defendant shall be allowed the benefits 

hereof, provided the trial judge may, in his 

discretion, allow pay to not more than two 

character witnesses for the defendant. 

"(4) The 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, or 

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 52.30; 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 

if there be one, otherwise the judge, shall 

make a certified list of said claim, upon forms 

prescribed by the Comptroller, furnishing such 

information as required by him, and send the 

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Honorable Robert S. Calvert, page 4 (C-637) 

same to the Comptroller at such times as he 

may require. No fee shall be required of the 

witness for the services herein provided. The 

service mentioned in the foregoing sentence 

shall include the issuance of certificate, 

swearing the witness to claim for witness fees 

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 withandauthorized by law in 

every respect, draw his warrant on the State 

Treasury for the amount 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 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. If the appropriatlon for paying such account is exhausted, 

the Comptroller shall file the same away and lssue a certificate in the name of the witness entitled to same, stating therein the amount of 

the claim. All such claims not filed in the 

office of the Comptroller within twelve months 

from the date same became due and payable shell 

be forever barred." 

In answer to your third question, it is the opinion of 

this office that all claims for witness fees may be submitted 

to the Comptroller by the Clerk of the Court on behalf of the 

witness, by the witness himself, by the assignee of the witness, or by anyone else authorized by the witness on behalf of 

the witness. 

SUMMARY 

(1) The Legislature has authority to appropriate such funds as ;are necessary for the 

payment of witness fees which have been incurred by virtue of Article 35.27, Vernon's 

Code of Criminal Procedure. 

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Honorable Robert S. Calvert, page 5 (c-637) 

(2) It is the opinion of this office that 

claims for witness fees must be filed with the 

Comptroller's Office within twelve (12) months 

after the same become due and payable. If the 

same are not so filed, they are barred, and 

the Legislature would not have authority to 

appropriate funds for their payment. 

(3) All claims for witness fees may be submitted to the Comptroller by the Clerk of the 

Court on behalf of the witness, by the witness 

himself, by the assignee of the witness, or by 

anyone else authorized by the witness on behalf of the witness. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

By: %&A&! 

Assistant Attorney General 

APPROVED: 

OPINION COMMI'M!EE 

W. V. Geppert, Chairman 

John Reeves 

Pat Bailey 

Gordon Houser 

Robert E. Owen 

APPROVED FOR THE ATTORREY GEWERAL 

By: T. B. Wright 

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