### EA OKNEY 

### ,GENERAL
OF TEXAS

January 22, 19.52

Hon. Robert S.~Calvert Comptroller of Public Accounts Austin, Texas Opinion No* V-1391

Dear Sir:

. Re: Existence of any appropriation to pay the mileage andper diem of witnesses from another state compelled to attend a criminal trial in Texas.
Your request for the opinion of this office is as follows:

“This department has received a certificate from Judge GbC. Olsen, District Judge of the 109th Judicial District of Texas, issued under the provisions of H.B. Noa659, passed by the 52ndLegislature. This certificate orders this department to issue warrants to three witnesses residing in California to tender each of them witness fees in advance of travel for mileage andper diem in amounts stated in the certificate. Thecertificate states the witnesses are material andare wanted in Reeves County in the Case “State of Texas vs. John E. Welch’!, in which the charge is murder with malice aforethought.

. . .

“This department requests an answer as to whether there is moneyappropriated for this payment? In the event you find there is moneyappropriated, would the certificate of the judge be sufficient authority and constitute a voucher for the issuance of awarrant in advance of travel? In the event your answer is in the affirmative, to whomwould the warrants beHon. Robert 5. Calvert, page 2 (V-1391)

issued andto whomwould the warrants be delivered? It has been the policy of this department not to pay until the service has been,performed.”
The applicable provisions of the Wniform Act to SeaWe the,Attendanar of Witnesses from with-~ out the State in Criminal Proceedings” Acts 52ndLeg*, 195l C, C. P.), ar8 a5 foil ah. 441, p.~798; 1H.B. lfo. 659, rt. 486a, V. ows: %*c. 4. If ,aperson in any state, which by It5 laws has madeprovision for coming persons wlthln its borders to attend and testify .in criminal prosecutions b or grand jury lnvestlgations corn- ’ mm05 or about to commenae,~,inthis State, is a’material witness in a pro&- cutlon pending in a court of record in this State, or in a grand jury ,lnvestigation which has cmencrd or is about to

, commence ajudge of such aourt may issue

a certificate under the seal of the court ’ stating these fact5 and specifying the

numberof days the witness will be required. Said certificate mayinclude a recommendation that the,witness be taken into lmmediate~custody and delivered to an officer of this State to assure his attendanaa in this State. This certificate shall be presented to a udgebf a court : I of record in the comty ,,nwhich the witness is found.

‘IIf the witae58 18 summonedto attend

. and testify in this State he shall be tendered the sumof Ten Cents (log) amile for each mile by the ordinary traveled route to andfrom the court where the prosecution is pending andFive Dollars ($5). foreeach day t that he is required to travel and attend as a witness.

. . l

n After the certificate of the Texas court has been issued, It is then forwarded to any Judge ~bf a court of maorb in the county in which the witness is found and the proceedings thereafter are under the pro- i vision5 of Se&ion 3 of the Act, which provides:Hon. Robert 8. Calvert, page 

### 3 (v-1391)

“Sec. 

### 3. If ajudge of a court of record in any state which by its laws has madeprovision for commandingpersons within that state to attend and testify in this State certifies under the seal of such.court that there Is a criminal prosecution pending in such court 9or that a grand jury investigation has commencedor is about to commence, that a person being within this State is amaterial witness in such prosecution or grand jury investigation, and that his presence will be required for a specified numberof days upon presentation of such certificate $0any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall makean order directing the witness to appear at a time andplace certain for the hearing.

“If at ahearing the judge determines that the witness is material and necessary that it will not cause undue hardship !o the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, andthat the laws of the state in which the prosecution is pending, or grand jury investigation has commencedor is about to commence (and of any other state through which ,!hewitness maybe required to pass by ordinary course of travel) will give to himprotection from arresc andthe service of civil and criminal process, he shall issue a summons,with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commencedor is about to commenceat a time andplace specified in the summons. In any such hearing the certificate shall be prima-facie evidence of all the facts stated therein.

“If said certificate recommends that the witness be taken into immediate custody.

-.

Hon. Robert S. Calvert, page 4 (V-139ij.

and delivered to an offi’cer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before himfor said hearing; and s the judge at the hearing being satisfied of the desirability of such,custody and delivery;for which’determination the certificate shall be prima-$acie proof of such desirability may, in lieu of issuing subpoena or summons,order that said2witness be forthwith taken into custody and delivered to an officer of the requesting state. :,.

summons,;‘he

testify as directed in the shall be punished in the,..mannerprovided for the punfshmentof anywitness who~disobeys a summonsissued from a court of record in this State.” (Emphasis added)
Section 4, m, provides that after th.e witness issummosed to attend and testify in Texas he shall be tendered the sumof log amile for each mile by the ordinary travel route to andfrom the Court where the prosecution is pending and$5.00 for each dav that he is reauired to travel andattend as awitbe tendered ness, which witness fees andmileage,rmust to the witness at the time the summonsis himby someproperly authorized person in where the witness is: found.

You ask whether the Legislature ated moneyfor the payment of the witness for in Rouse Bill 

### 659. served upon the State

has approprffees provided. .

Hon. Robert S. Calve&, page 5 (V-1391)

The only appropriation for witness fees andmileage in criminal cases contained in the general appropriations Act is to be found in subsection 12 (Judiciary Section--ComptrollerIs Department) of Section 1,~Article 1, House Bill 

### 426 19$l., ch. 499, p. 1228, which is as hActs 52ndLeg., 0110~s:

“For the Years Ending August 31, 

### 1952

“12. Expenses of attached witnesses, witness fees andmileage allowed witnesses in felony cases where the uitness lives outside the county where the case is being tried $kO,OOO.OO August 

### 31; 1953

$40,000

.OO”
Prior to 1951 appropriations in language identical with the above appropriation are to be found in each of the general appropriation Acts passed by prior Legislatures, except that the amounts appropriated vary from year to year. In this connection it should be noted that the amountappropriated for the fiscal year ending August 

### 31,1952was reduced by one-third from the amountappropriated by tiie 51st Legislature in 1949 (H.B. 320, Acts. 5lst Leg., 1949, ch. 585, p. 1160).

The sumsso appropriated have been subject to disbursement in accordance with the provisions of Articles 

### 475to 

### 481 Code of Criminai inclusive, andArticle 

### 1036of Vernon’s

Procedure, andhave been confined to witness fees andmileage claimed bywitnesses subpoenaed within the State of Texas under the provisions of Article 

### 1036,V.C.C.P. Att*y Gen. Op. No. 

### O-429 (1942).

The general appropriations act was passed on May10, 

### 1951,was approved June 

### 28,195l.andbecame effective on September 1, 

### 195l..HouseBili 

### 659was passed by the House on May

### 8 1951,andby the Senate on May

### 30, 1951. It was approve4 by the Governor and became effective June 15, 1951. Since House Bill 

### 659was passed subsequent to the general appropriation bill, it is evident that it was not the legislative intent to appropriate any of the funds contained in subsection 12, Section 1 of Article 1 of the appropriation bill for the purpose of paying the mileage and per diem of the out-of-State witnesses. .

~,

Hon. Robert S. Calvert, page 

### 6 (V-1391)

to be summonedunder the provlsions of HouseBill 659. Therefore, the Legislature did not appropriate nor is there available anymoneyfor the payment of such witness fees andmileage.

Your second question is as follows8

‘1.

. . In the event ou find there is moneyappropriated, wo upd the certiffcate of t&ejudge be sufficient authority and constituteV,a voucher for the is-

-. suanc; of awarrant in advance of travel?

. . .Although wehave held that the Legislature did not appropriate anymoneyfor the payment of such witness fees andmileage, conceding, m, ,that the funds appropriated for the expenses of attached witnesses, witness fees andmileage allowed witnesses in felony cases where the witness lives outside the county where the case is being tried, would be avafl-

‘able for the payment of such witness fees andmileage under the theory that witnesses residing outside of the State where the case is being tried are included within the category of witnesses outside the county where the case is being tried,~ nevertheless the certificate of the Judge of the Di’strlct Court of the 109th Judicial ,Dlstrict of Texas Is in our opinion insufficient authority for the issuance of awarrant fn advance of travel.

In the enactment of House Bill 

### 659as a uuiform act the Legislature madeno provision for the method o

h securing the moneywhich is required to be tendered the out-of-State witness at the time of the summons. However, the appLlcation of the statutory provisions which govern the disbursement of witness fees andmileage for out-of-county witnesses in felony cases to the disbursement of the samefunds for outof-State witnesses in felony cases9 would necessftate the following procedure.

The officer of the out-of-State court of reolordwhoserves the summonsupon the witness whois found within the jurisdiction of th.e out-of-State Court authorizing the summons,would have to secure from the witness aq affidavit of his inability from lack of funds to appear in obedience to said summons whereupon the officer executing thensummonsmust provide the witness,, if.

Hon. Robert S. Calvert, page 

### 7 (V-1391)

the summonsbe issued in a felony case, with the necessary funds or means to appear in obedience thereto, taking his receipt therefor, and showing in his return upon said summons,under oath, the amountfurnished to said witness. Article 447, V.C.C.P.
TheJudge of the out-of-State court of record from which the summonswas Issued if issued in a felony case, Immediately upon ihe return thereof must issue to such officer a certificate for the amountfurnished the witness, together with the amount of his fees for’ exeouting the same, &I+ ing the amountof each item, which certificate should then be forwarded to the Judge of the District Court In Texas whoissued the original certificate for the attendance of such witness. Uponthe approval by the District Judge the certificate must be recorded by the District Clerk In abook kept for that purpose andthen transmitted to the officer who originally exeouted the summons,whomust then forward it to the Comptroller of Public Accounts to be paid as other costs are paid in criminal matters. Articles 

### 478and 

### 1035,V.C.C.P. Thebalance of the mileage andwitness fees due the witness for and after his attendance before the Dietrict Court in Texas would be paid In accordance with the provisions of Article 

### 1036,V.C.C.P.

Section 44 of Article III of the Constitution of Texas provides that the Le,gislature shall not

“grant, by appropriation or otherWise, any amount of moneyout of the Treasury of the State, to any individual, on a claim,

. . . whenthe sameshall not be provided for by preexisting law:

. . .‘I

,Assuming, without deciding that Rouse Bill No. 

### 659is a valid and constitutiona, 1 prr-existi.lg law, the claim of the individual. that is, the witness, for the payment of mileage andwjtness fees provided for therein would not accrue until the service of summonsupon himand could only be paid in accordance with the provisions of Article 

### 1036,V.C.C.P.,, inasv&h as the Legislature Palled to makeprovision In House Bill 

### 659for any other method of payment.Hon. Rob?rt,S. Cdvkrt, page 8 (V-13911

The 52ndLegislature failed to appro- " ,priate any moneyfor the payment of nitness andmileage fees for out-of-State witnesses to be summonedunder the provisions of HouseBill 659 Acts 52ndLeg. 1951, ch. 44i, p. 798; Art. 486a, Vernonas Code of Criminal Procedure.
Yours very truly,
APPROVED:
E. Jacobson Reviewing Assist&t PRICEDANIEL

Charles D. Mathews First Assistant
CKR:wb Assistant