AUSTIN. %EXAS 98711 March 14, 1966

Honorable Robert S. Calvert OpinionNo. C-637 Comptroller of Public Accounts Austin, Texas Re: Whether an appropriation couldbe made for the payment of certainwitness fees, if the claims therefor are not filed in the Comptroller'sOffice within twelvemonths from the date they became due, under the provisions of Article 35.27,Vernon's Code of CriminalProcedure, Dear Sir: and related questions.

You have recently requestedan opinion of this office concerningArticle 35.27,Vernon's Code of Criminal Procedure and Attorney General's Opinion C-579,wherein this office held that out-of-countywitnesses subpoenaed inmisdemeanor cases inwhich confinement in jail is a permissiblepunishment, outof-countywitnesses subpoenaed to appear in a habeas corpus proceeding, out-of-countywitnesses subpoenaed to appear at a coroner's inquest, and an out-of-countywitness 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 connectionyou have asked three questionsas 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 situationsare not placed on file in the Comptroller's Office for payment and twelvemonths 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'sOffice, the witness,

-3089-.

HonorableRobert S. Calvert,page 2 (c-637)

the district or county clerk, or the assignee if one ismade?

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 suchwitness fees. Article 3, Section 44 of the Constitutionof the State of Texas, provides:
"The Legislature shallprovide by law for

the compensationof 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 shallhave been performed or contract entered into, for the performance of the same; nor grant, by appropriationor otherwise, any amount of money out of the Treasury of the State, to any individual,on a claim, real or pretended,when the same shallnot have been provided forby pre-existing law; nor employ any one in the name of t.;..Etate,

unless authorizedby pre-existing

Article 35.27,Vernon's Code of Criminal Procedure, ., constitutespre-existing law which authorizes a legislative appropriation. The Legislaturehas authority to appropriate such funds as are necessary for the payment of such witness fees which have accrued and have been incurredby 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'sOffice within twelve (12)month8 after the same become due and payable. If the same are not filedwithin such timeperiod they are barred, and the Legislaturewould have no authority to appropriate funds for theirpayment under the aforementionedArticle 3, Section 44, Constitutionof the State of Texas, as Article 35.27, Section 5, provides in part as follows:
"All such claimsnot filed in the office of

the Comptrollerwithin twelvemonths from the date same became due and payable shallbe forever barred."

-3090-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 suchwitness fees and is as follows:

“(3) The witness shallmake 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 shallbe a part of the certificate issuedby 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 judgebefore 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 conveyedby sheriff, shallnot be entitled to receive feeswhile in custody of such officer.

"No witness subpoenaed or attached for the purpose of proving the general reputation of the defendant shallbe allowed thebenefits hereof, provided the trial judgemay, in his discretion, allowpay 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 shallbe conditioned only.upon and subject to the approval of the State Comptroller,as provided for in Article 52.30; and said claimwith the action of the judge thereon shallbe entered on the minutes of said court and upon the approval of said claim by the judge, the clerk if therebe one, otherwise the judge, shall make a certified list of said claim,upon forms prescribedby the Comptroller, furnishing such informationas requiredby him, and send the

-3091-. .

HonorableRobert S. Calvert,page 4 (C-637)

same to the Comptrollerat such times as he may require. No fee shallbe required of the witness for the servicesherein provided. The servicementioned 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 listprovided for in the foregoing section, shall carefully examine the same, and if he deems said claim correct, and in compliancewithandauthorized 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 certificatehas been assignedby such witness, but no warrant shall issue to any assignee of suchwitness claim.unless the assignment is made under oath and acknowledgedbefore someperson 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 claimsnot filed in the office of the Comptrollerwithin twelvemonths from the date samebecame due and payable shell be foreverbarred."

In answer to your third question, it is the opinion of this office that all claims for witness feesmay be submitted to the Comptrollerby the Clerk of the Court on behalf of the witness, by the witness himself,by the assignee of the witness, or by anyone else authorizedby the witness on behalf of the witness.

SUMMARY

(1) The Legislaturehas authority to appropriate such funds as ;arenecessary for the payment of witness feeswhich have been incurredby virtue of Article 35.27,Vernon's Code of Criminal Procedure.

-3092-Honorable Robert S. Calvert,page 5 (c-637)

(2) It is the opinion of this office that claims for witness feesmust 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 Legislaturewould not have authority to appropriate funds for their payment. (3) All claims for witness feesmay be submitted to the Comptrollerby the Clerk of the Court on behalf of the witness, by the witness himself, by the assignee of the witness, or by anyone else authorizedby 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

-3093-