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 

and per 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 Gb C. Olsen, 

District Judge of the 109th Judicial 

District of Texas, issued under the 

provisions of H.B. Noa 659, passed by 

the 52nd Legislature. 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 and per diem in amounts stated in the certificate. The certificate states the witnesses are material 

and are 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 money appropriated for this payment? In the 

event you find there is money appropriated, would the certificate of the 

judge be sufficient authority and constitute a voucher for the issuance of 

a warrant in advance of travel? In 

the event your answer is in the affirmative, to whom would the warrants be 
Hon. Robert 5. Calvert, page 2 (V-1391) 

issued and to whom would 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 52nd Leg*, 195l 

C, C. P.), ar8 a5 fo il 

ah. 441, p.~ 798; 1 

H.B. lfo. 659, 

rt. 486a, V. 

ows: 

%*c. 4. If ,aperson in any state, 

which by It5 laws has made provision for 

coming persons wlthln its borders to 

attend and testify .in criminal prosecutions 

b 

or grand jury lnvestlgations corn- ’ 

mm05 or about to commenae, ~,in this 

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 a judge of such aourt may issue 

a certificate under the seal of the court 

’ stating these fact5 and specifying the 

number of days the witness will be required. Said certificate may include 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 udge bf a court : 

of record in the comty ,, I n which the witness is found. 

‘IIf the witae58 18 summoned to attend 

. and testify in this State he shall be tendered the sum of Ten Cents (log) a mile for 

each mile by the ordinary traveled route to 

and from the court where the prosecution is 

pending and Five Dollars ($5). fore each 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 a judge of a court of 

record in any state which by its laws 

has made provision for commanding persons 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 9 or that a grand jury investigation has commenced or is about to commence, that a person being within this 

State is a material witness in such prosecution or grand jury investigation, 

and that his presence will be required 

for a specified number of days upon presentation of such certificate $0 any 

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 make an order directing the witness 

to appear at a time and place certain for 

the hearing. 

“If at a hearing 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, and that the laws of the state 

in which the prosecution is pending, or 

grand jury investigation has commenced or 

is about to commence (and of any other 

state through which ,!he witness may be required to pass by ordinary course of travel) will give to him protection from arres c and the 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 

commenced or is about to commence at a 

time and place 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 him for 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,..manner provided for the punfshment of any witness who ~disobeys a summons issued 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 sum of log a mile for each mile 

by the ordinary travel route to and from the Court 

where the prosecution is pending and $5.00 for each 

dav that he is reauired to travel and attend as a witness, which witness fees and mileage,rmust be tendered 

to the witness at the time the summons is 

him by some properly authorized person in 

where the witness is: found. 

You ask whether the Legislature 

ated money for 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 

and mileage 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 h 

Acts 52nd Leg., 

0110~s: 

“For the Years Ending 

August 31, 

1952 

“12. Expenses of attached 

witnesses, witness 

fees and mileage 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 amount appropriated for the fiscal year ending August 31, 1952 was reduced by one-third from the 

amount appropriated by tiie 51st Legislature in 1949 

(H.B. 320, Acts. 5lst Leg., 1949, ch. 585, p. 1160). 

The sums so appropriated have been subject to 

disbursement in accordance with the provisions of Articles 475 to 481 

Code of Crimina i 

inclusive, and Article 1036 of Vernon’s 

Procedure, and have been confined to 

witness fees and mileage claimed by witnesses 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 

May 10, 1951, was approved June 28, 195l. and became effective on September 1, 195l.. House Bili 659 was passed 

by the House on May 8 1951, and by the Senate on May 30, 

1951. It was approve4 by the Governor and became effective June 15, 1951. Since House Bill 659 was 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 summoned under the provlsions of House Bill 

659. Therefore, the Legislature did not appropriate nor is there available any money for the payment of such witness fees and mileage. 

Your second question is as follows8 

‘1. . . In the event ou find there 

is money appropriated, wo up d the certiffcate of t&e judge be sufficient authority and constituteV,a voucher for the is- 

-. 

suanc; of a warrant in advance of travel? 

. . . 

Although we have held that the Legislature 

did not appropriate any money for the payment of such 

witness fees and mileage, conceding, m, ,that 

the funds appropriated for the expenses of attached 

witnesses, witness fees and mileage 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 and mileage 

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 a warrant fn 

advance of travel. 

In the enactment of House Bill 659 as a uuiform act the Legislature made no provision for the 

method o h securing the money which 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 and mileage for out-of-county witnesses in felony 

cases to the disbursement of the same funds for outof-State witnesses in felony cases9 would necessftate 

the following procedure. 

The officer of the out-of-State court of reolord who serves the summons upon the witness who is 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 then summons must prov i de the witness,, if 
. 

Hon. Robert S. Calvert, page 7 (V-1391) 

the summons be 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 

amount furnished to said witness. Article 447, 

V.C.C.P. 

The Judge of the out-of-State court of 

record from which the summons was Issued if issued in a felony case, Immediately upon ihe return 

thereof must issue to such officer a certificate 

for the amount furnished the witness, together with 

the amount of his fees for’ exeouting the same, &I+ 

ing the amount of each item, which certificate 

should then be forwarded to the Judge of the District 

Court In Texas who issued the original certificate 

for the attendance of such witness. Upon the approval by the District Judge the certificate must be 

recorded by the District Clerk In a book kept for 

that purpose and then transmitted to the officer who 

originally exeouted the summons, who must then forward it to the Comptroller of Public Accounts to be 

paid as other costs are paid in criminal matters. 

Articles 478 and 1035, V.C.C.P. The balance of the 

mileage and witness 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 

money out of the Treasury of the State, to any individual, on a claim, . . . when the same shall not be 

provided for by preexisting law: . . .‘I 

,Assuming, without deciding that Rouse Bill 

No. 659 is a valid and constitutiona, 1 prr-existi.lg 

law, the claim of the individual. that is, the witness, 

for the payment of mileage and wjtness fees provided 

for therein would not accrue until the service of summons upon him and could only be paid in accordance 

with the provisions of Article 1036, V.C.C.P.,, inasv&h as the Legislature Palled to make provision In 

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

The 52nd Legislature failed to appro- " 

,priate any money for the payment of nitness and mileage fees for out-of-State 

witnesses to be summoned under the provisions of House Bill 659 Acts 52nd Leg. 

1951, ch. 44i, p. 798; Art. 486a, Vernonas 

Code of Criminal Procedure. 

Yours very truly, 

APPROVED: 

E. Jacobson 

Reviewing Assist&t 

PRICE DANIEL 

Charles D. Mathews 

First Assistant 

CKR:wb 

Assistant