Case Information
*1 Opinion NO. O-2465 lion6 Tom C. King Is it optional with the em- stat@ Auditor and Efficiency Ret floyee ~“0 choose either source Expert kiustln,~ Texas
for or the statutory mileage and witness fee) from which to be reimbursed?
Dear Sir: And~related questions.
Your recent request for an opinion of this Department on the questions as are herein stated has been received.
We quote from your letter as follows: “The current Departmental Bill de- clares in Section2 (under the-head, *Traveling Ex- penses$ 1 I
l’;k~y State entitled trav- eling.expenses out of State appropriations herein made, who is legally or officially to be present not claim trial of any State the State and also the Court wherein If by oversignt, duplicate claims said case is pending. filed said and collected, said officers or employees reimburse and re- fund an amount equal the re- spective such witness claim. t “For the proper of this clause your opinion respectfully requested
“1. Is it optional with to choose el- ther source (the departmental travel- ing expense,.or fee) from which to be reimbursed?
“2, If and expense allowance as com- puted-under terms of the appropriation bili should be greater than as computed under statutes relating to aourt costs, would former measure be appropriate the claim of a state employee? *2 “3. In the case of a duplication, is refund to be.made.dlrect to the State Treasurer, so as to be credited traveling-expense account of the de- or, partment with which is connected; through trial was had, thus op- erating as a credit the costs of the case, or as a revenue ltem?l’
Article reads part,
“Any witness who may have been recognized, sub- poenaed or attached, and given bond for his appearance any court, or before any grand jury, out of the county of his residence testify
and who appears in compliance with the obligations of recognizance or bond, shall be allowed his actual expenses, not exceeding four cents per mile going to and returning from the court or grand jury, by the nearest practical conveyance, and two dollars per day for each day he may necessarily be absent from home as a witness in such case.
llWitnesses receive from the State, for attend- ance upon district and grand juries in counties other of their residence, in obedience to sub- poenas issued under the provisions of law their actual not exceeding four cents per mile, going the nearest to and returning from the court or grand jury, by practical conveyance, and two dollars day for each day they may necessarily be absent from home as a witness, to be paid as now provided by law; . ..I’ Section of the above mentioned article provides that: “Before the close of each term of District Court, the witness shall make an affidavit stating the number of miles he will have traveled going to and returning the court, by the nearest practical conveyance, the number of days he will have been necessarily absent in going to and returning the place of trial; affidavit shall be filed with the papers of the case. No witness receive pay for his services as a wit- ness in more than one case at any one term of the court. Fees shall not be allowed to more than two witnesses the same fact judge before whom the cause tried shall, such case has been tried, contln- ued, or otherwise disposed of, certify such wit- nesses were necessary in the cause.
Hon. Tom C. King,? page 3
A witness to be entitled :IJ pi’~~b- vided by .A?$icle 1036 must be legally subpoenaed hy th? ~‘.~.::r’; he,-Is entitled to such compensation.
It is well settled that no public is entitl,;l to rece’ive.and retain any fees or compensation there a provislon~. made by the legislature giving the same to him. See the case of ‘McCalla vs. City of Rockdale, 246 S.W. 654; Duclos v. .298 S.W. ,417 and authorities Harris County, cited therein. Along the same line, the have held,that legislature may provide the allowance of expenses incurred~ by an officer in addition fixed by law. Terre11 vs. King, S.W. (2d) the Article 3897' Vernon’s Annotated Also see Civil Statutes, and.,the authorities cited thereunder pertaining the ,filing of expense accounts of various officials.
In the case of Lay vs. State, 202 S.W. 729, the ques- tion as whether a salaried pol.iceman was entitled to his per diem under the old bticle~ 1137b, Code of Criminal (now repealed). The court, in this holding this ’ article applicable only to ‘felony cases and not the case vn-
der consideration, which was a misdemeanor, used following language
‘1 . . There being no difference reference to misdemeanor c’ases as to the character of witnesses whether officers or not, the officer would come withi; as we understand law, as wit- the general category, ness. His official character, so far as that proposi- tion is. concerned, would make no difference.
Under the case of Lay vs. State, seems the official character of the witness’ makes no difference as to the perdiem, where the statutes do not specifically draw a line between the officers as witnesses and ordinary ‘witnesses. Arti- cle -supra, the present statute Procedure, for out-of-county providing fees and mileage witnesses cases, does not’make distinction. It has long been Departmental of the Comptroller I s off ice that State Highway Patrolmen are entitled to mileage and the Two Dollars diem as out-of-county in a felony case the grand felony. Highway Patrolmen receiving mileage fees and Two Dollars per diem the~~court are not entitled to collect the Two Dollars per diem and also allowed by the general bill.
In this connection we want to point out if an of- ~ficer or employee is duly case *4 -. he is not officially connected or has rendered no official serv- ice, he would not be entitled to claim traveling expenses as allowed by the general appropriation bill, but would be entitled by Brtlcle 1036, supra. to claim as provided On the other hand where an officer or state employee is subpoenaed as a witness In a felony case or a grand jury investigating a felony in a county other that of his residence where such officer or employee is or has been officially connected with the case or has rendered any official service and has performed some official duty in connection there- such officer or employee may claim mileage fees and the per Aiem as allowed by Article 1036, or he may claim traveling expenses as allowed by the general bill; however, he cannot claim both
fee and the expense allowed, but may claim either his option.
We think that the answer to your first question ‘neces- sarily answers your second question as it is optional with employee to choose either or the statutory and witness above stated, fees to be reimbursed the conditions
that it would be appropriate to choose either. as above stated, is to be noted that if the officer is subpoenaed only as a witness and has no official connection with the case, he could claim only as allowed by Article
In answer to your third question, you are respectfully under Article 1036, su- advised that if the per diem and mileage pra, and the as allowed by the general appro- priation bill are collected, such State employees would be to reimburse and refund the State Treasurer an amount equal the respective as such witness mileage under Brticle supra. We believe that under Section 2 of the Departmental Bill, above quoted, refund would be made direct and that same would be credited fund appropriated the purpose of compensating out-of-county cases the court or before a grand a felony case.
Trusting foregoing answers your inquiry, we Yours very truly APPROVED JUL 8, 1940 ATTORNEY GENERAL OF TEXAS Js/ G1enn.R. Lewis (Acting) ATTORNEY GENEZU OF TEXAS B~d$~ ,",,":~~m~~'~~~~~~;nt APPROVED: OPINION COMMITTEE.
BY: ‘BWB, CHAIRMAI~
AW,ew:wb