Untitled Texas Attorney General Opinion

THE ATTORNEW GENERAL OF-XAS

CEZAWPORD c. MARTlN AUSTIN.'~EXAB 787~ AT-rORNEYOENBRAI. May 19, 1971

Hon. Herbert Middleton Opinion No. M-863 County Auditor Taylor County Re: Advance of county funds to a Taylor County Courthouse subpoenaed out-of-State wit- Abilene, Texas ness while he Is waiting to be paid by the State. Dear Mr. Mlddletonz Your request for an opinion on the above subject matter asks the following question: "Can the County lenallv advance countv funds directly or lndlr&tly to a subpoenaed witness while he is waiting to be paid by the State?" The witness Involved In your request is an out-of-State material witness in a felony case.

__^_ Article 24.28, Vernon's Code of Crfmfnal Procedure, is tne UnlSorm Act to Secure Attendance of Witnesses from without the State. Section 4 thereof provides in part: "If the witness fs summoned to attend and testify fn this State he shall be tendered the sum of ten cents a mfle for each mile by the ordinary traveled route to and from the court where the prosecution is pending and ffve dollars for each day that he is required to travel and attend as a witness. A witness who has appeared fn accordance with the provisions of the summons shall not be required to remain withfn this State a longer perfod of time than the period mentioned in the certificate, unless otherwise ordered by the court, If such witness, after coming fnto this State, fails without good cause to attend and testify as dfrected in the summons, he shall be punished in the manner provided for the punish- ment of any witness who disobeys a summons issued from a court of record in this State."

-4188-Hon. Herbert Middleton, page 2 (M-863)

It should be noted that no provision is made in this Article as to who should pay out-of-state witnesses. Article 35.27, Texas Code of Criminal Rrocedure, deals with out-of-county witnesses, and Section 1 thereof explicitly provides that such out-of-county witnesses shall be paid by the State. No mention Is made therein of any payment or advance by a county to such witnesses. In Attorney General's Opinion No. C-720 (1966), this office held that the method of payment for out-of-State witnesses, pursuant to Article 24.28, supra, was to be the same as thatfor payment of other out-of-county witnesses, pursuant to Article 35.27, supra; In essence, that Opinion held that out-of-State witnesses were to be paid by the State. There Is no statutory authorization in either of the two foregoing Articles for a county's paying or advancing.funds to out-of-State or other out-of-county witnesses. It is a well-established rule of law that a county commissioners court is one of limited jurisdiction, and that such court has only such powers as are conferred upon It by the Constl- tution or statutes of this state, Section 18, Article V, Constitu- tion of Texas; Article 2351, Vernon's Civil Statutes; Bland v. Orr, 90 _. Tex. -----492. 19 -_-. __, __ S.W.- _ 558 - (18971: --_, . Mills v. Lamoasas Countv. 90 Tex. ..~~~~~ 603, 40 S.W. 403 (18971; Anderson v. Wood -137&x. 201 "152 S.W.2d 1084 (1941); hlln, 147 Tex: 169, 214 S.Wr2d 451 (1948) Starr County S.W.2d 179 (Tex.Civ.ADD. 1956, no wrtt); Fill V. Sterrett, 252 S.w.2~ I j66 (~&,~iv.App. 19529 error ref. n.r.e and Von Rosenberg V. Lovett, 173 S.W. 508 (Tex.Cl> w.App. 1915, error r Consequently, a county comnilssloners courtcan have no powers by necessary imDllcation-where there Is no power expressly-conferred upon It to do some act from which a power can be implied. We reaffirm the holding of Attorney General's Opinion No. C-720, supra, and hold that there is no statutory authorization for a county's paying, or advancing, witness fees to an out-of-State witness who is waiting to be paid by the State. Since receiving your request , we have conferred with the office of the State Comptroller of Public Accounts; that office has informed us that, at the present time, there are no funds available with which to pay fees for out-of-State witnesses. While it is true that the payment of fees to out-of-State witnesses Is a legal obligation of the State of Texas, we are also

-4189-Hon. Herbert Middleton, page 3 (M-863)

of the'opinion that the amount of funds appropriated for such purposes is within the discretion of the Legislature, and that such amount is a matter for legislative determination. Attorney General's Opinions No.WW-113 (1957) and No, V-1391 (1952). We are further of the opinion that the question of ad- vancing fees to out-of-State witnesses, prior to the performance of their duties as witnesses, is one to be determined by the Leg- islature. Your question Is, therefore, answered In the negative. SUMMARY Article 24.28, Texas Code of Criminal Pro- .: cedure, contains no authorization permitting or directing the advancing of county funds to a sub- poenaed out-of-State witness while such witness is waiting to be paid by the State. Accordingly, counties are not permitted to make such advances to such witnesses. Such witnesses are to receive compensation solely from

General of Texas

Prepared by Austin C, Bray, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Pat Bailey Houghton Brownlee Joseph Sharpley Arthur Sandlin

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. -Hon. Herbert Middleton, page 4 (M-863)

MEADE F. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLA WHITE First Assistant

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