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 wit-
ness fees, if the claims
therefor are not filed
in the Comptroller's Of-
fice 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, out-
of-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 appro-
priation 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 as-
signee 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, pro-
vides:
"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-exist-
ing 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 with-
in 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 for-
ever barred."
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Honorable Robert S. Calvert, page 3 (C-637)
In answer to your third question, Article 35.27, Sec-
tions 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 trav-
eled going to and returning from the court, by
the nearest practical conveyance, and the num-
ber of days he will have been necessarily ab-
sent 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 neces-
sary in the cause. Witness, when attached
and conveyed by sheriff, shall not be enti-
tled 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 care-
fully, and inquire into the correctness there-
of, 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 ap-
proval 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 ap-
proval 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 ap-
propriatlon for paying such account is exhausted,
the Comptroller shall file the same away and ls-
sue a certificate in the name of the witness en-
titled 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 wit-
ness, or by anyone else authorized by the witness on behalf of
the witness.
SUMMARY
(1) The Legislature has authority to ap-
propriate such funds as ;are necessary for the
payment of witness fees which have been in-
curred 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 sub-
mitted 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 be-
half 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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Untitled Texas Attorney General Opinion
Combined Opinion