Case Information

*1 THE ATIVMCNEY GEXERAL OFTEXAS

Gerald C. Mann

Hon. Geo. EL. Shrp ard Opinion ‘NO. O-3806

Cg&llgl~y3r of Pu llc g E&II Witness Fe08 - state rmployeea-

attached witnreera Austin 3 Texas

Dear S:lr:

Your request f<or ,opinion up.011 the following stated questions:

“1. Will a State e!nployee who is subpoenaed tin a felony case as an out of county witness,

who travels in a State owned automobile, be rn- titled to receive 3$ per mila as provided In ,the~ bill:

“2. What fees, if any, will a witness be en- to receive when attached and conveyed by t:he sheriff of his home county to a foreign

to serve as a witness in a felony case?e

has been received and carefully considered by .this department.

House Bill No. -214, Acts of the Regular Session of the 47th Legislature, emends Article V.A.C.C.P., so that Sec- tion 1 thereof reads as follows:

‘#Any witness who may have been .subpornard, or shall have been recognized or’ attached’and

given bond for his appearance before any court, or before any grand jury, out of then county of h,is residence; testify gardless of disposition of said case, and who appears the obligations of s,uch recognizance or bond, shall be allowed

three (3) to and returning jury, by the nearsst and ,two CS2.00) dollars practical,

pier day for each days he may necessarily be ab- slant from home as a witness in such case.”

Prior its amendment, Section ‘1 of Article V. A.C.C.P., provided such witnr.ss: ,. : :.

” .

Hon. Gee. Ii. Sheppard, 2 (o-3806)

and returning jury, by the nearest practical and two dol- lars per day for each day he may neoossarlly br absent from home as a witness in such case.*

We quote from lo. O-3224 of this department as followst

“You are respectfully advised it is opinion of this department such witnesses would be entitled to threr

and returning from the court or grand jury by the near6 st practical conveyance. Whether they trav- alled on a railway pass, with peace officers, in state owned automobiles, or in their own automo- biles would be immaterial.

%owever, we wtsh to point out that Stat. employees cannot claim traveling expenses from the and also from the court in State cases. See Subdivision 12(a) of Section 2 of the Departmental Appropriation Bill 47th Legislature of Texas, which reads as foliowst

Ii*a, No traveling expenses shall be claimed, allowed, or paid unless incurred while traveling cn State business. Any State orricial or employee sntltled to traveling expenses out of State appro- priations herein made who Is legally or offlclally required to be presen 4 at the trial of any Stata (case, shall not claim traveling from the State and also from the Court wherein said case :pendlng, If by over sight, duplicate claims are ;fllsd .then said offlc8rs ror said expenses and collected,

or employees reimburse :r.efund to the State Treasurer

,thr respective under such witness rems and mileage claim.lD

We quote from opinion Ho. O-1526 of this department r0ii0w “Under the case of Lay VS. State, supra, it seems that the official character of ma&es no dirrerence as to the per diem, where statutes do not speolrlcally draw a line between orricers as witnesses and ordinary witnesses. Arti- cle Code or Crlmlnal Procedure supra present statute provldlng fees and m leage tor out or county witnesses does not make this distlnctlon.

Hon. 080. B. Shrppard, (O-3806)

It has long barn the departmental constraotion or the Comptrollerts office that State Highway Patrol- to mlleag8 and the $2.00 per diem men ar8 rntltled aa 0ut-0r-c0wy witnrssrs l.g a r8i0ay cas8 in the court and brrorr.thr grand jury investigating a r,810ay. Hcwrver, such highway patrolmrn rrorlving mileage fe8s and $2.00 per diem rrom the court are not entitled &?.OO per diem and also to oollect the mlleag8 frrs and the

the. travrllng l xp8nses allowed by the general appropriation bill, the per ,diem and mileage. under Article 1036 and the travaling expenses as allowed by thr general apprc- pxiation bill are oollected, then such highway patrolmen would be required to, reimburse and refund to, the State’ Treasurer to the sprctlve as such witness fee and mileage under Article supra; is, Highway Patrolmen when subpoenard as out-of-county

bafore in a felony case or before

gra,nd jury investigating a’ felony case cannot claim both the, mileage flea and per diem allowed by Article 1036, supra; and also

a:Llowed by the General Appropriation Bill. We be- lieve the Comptroller has correctly construed

law.”

Prticle 481, V.A.,C.C.P., reads’ as follows: “If a witnrss summoned from without the county refuse to obey a subpoena, he shall be rined by the court or magistrate not exceeding five hundred dol- lars, which rine and judgment shall be final, unless set asidr after due notice to show cause why it should not bd rinal whloh notice may immediately is- 8118, requiring the defaulting witness to appear at OIICI or at ths next term of said court, in the dis- cretion of the judge, to answer for such derault, The court may cause to be issued at the same .time an attachment county, ror said witness, dir8cted to the proper

commanding the ofricar to whom said writ directed to take said witness into custody and have h.im before said court at the time named in said writ; in which case such witness receivr no fees unless hit appears such disobedience la excusable, when ,the witness may receive the sam8 pay as if he pad not bean attached. Said find when made finals and ‘all costs thereon shall be collected as in other criminal cases. Bald finds and judgment may be set aside id” vacation 6r at the same or any subsequent term of the court for good cause shown, *4 4 (O-3806) Hon. (fro. H. Sheppard, arter the’wltness t@StiriQS ,or has b@Qn discharged.

!Ehe following words. shall b8 Wrltt@n or prl@ed on the face or such subpoena for out-county wltness8sr 18 disobedienc8 of this subpoena is punlshablr by fine not @xC@Qding riV8 hundred dollars,, to be col- lected as rlnes and costs In other criminal cases.”

A State employee may uSa a state owned automobile for “State buslnessw and not for “personal business@@. Whether a employer -attends court as a witness on “State buslnessw or @‘personal busin8ssn uill depend upon the facts in each case. For example , an auditor from the Comptroller~s OffiC8 who testl- fies as to a shortage In the accounts of a tax collector in a suit brought by thestate to recover on the official bond of the tax collector would clearly be on wState businessw; however, if the same auditor saw a murder committed and was summoned as a his attendance in court as a witness in the murder case would be wpersonal buslnessU and not “State businrssw. such auditor would be authorized to use a Stati automobile on the collection suit against tax collector and his surety, but would not be authorized to use the estate automobile on the mur- der case.

We assume from your first question that the State em- ployee using a State owned automobile was on “State business” If this be true he would be entitled to the

set out In the General Appropriation Bill and would not be en- to any witness rem8 or mileage rrom the State. If both were collected he would have to rerund to the St,ate the witness and q .ileage fees.

We assume from your second question had disobeyed a subpoena and was attached and placed In the legal custody of the sheriff. If it appeared such disobedience was excusable the witness would be entitled to his per diem and mileage fees. found that the dlsobed- lencn to the subpoena was not excusable the witness would not be entitled to any fees. It is our further that a witness who has been recognlz8.d or attached and given bond for his ap- pearance before any ,or before any grand jury, out of the county of his residenc8, to testify and who appeared the obllgatlons of such recognizance or bond, would be entitled to the mileage and per diem set out in the statute. Very truly yours APPROVED AUG~ 21, ATTORNEY GEEERBL OF TEXAS

/s/ Gerald C.. Mann By/s/ Wm. J. Fanning ATTOIINEY GENERAL OF TEXAS Wm. J. Fanning, Assistant APPROVED: OPINION COMMITTEE BY: GWB, CHAIRMAN

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