Burttschell v. Sheppard

• Decision Date: 14 March 1934
• Docket Number: No. 6102.,6102.
• Citation: 69 S.W.2d 402
• Parties: BURTTSCHELL v. SHEPPARD.
• Court: Texas Supreme Court

Page 402

69 S.W.2d 402

BURTTSCHELL v. SHEPPARD.

No. 6102.

Supreme Court of Texas.

March 14, 1934.

Original proceeding in mandamus by John J. Burttschell, Sheriff of Lee county, against George H. Sheppard, Comptroller of Public Accounts.

Writ of mandamus granted.

Wm. O. Bowers, Jr., of Beaumont, for relator.

James V. Allred, Atty. Gen., and T. S. Christopher and Homer C. DeWolfe, Asst. Attys. Gen., for respondent.

PIERSON, Justice.

This is an original petition for mandamus brought by John J. Burttschell, sheriff of Lee county, Tex., to compel Hon. George H. Sheppard, comptroller of public accounts of the state of Texas, to issue a warrant or deficiency certificate to the relator for the amount of $775.40. It appears that the respondent had deducted this amount from relator's bill of costs claimed to be due him by the state of Texas as sheriff in felony cases tried at the April, 1931, term of the district court of Lee county. Respondent alleges that this amount had been previously approved and paid to the relator under his bill of costs for the October, 1930, term of court, and that such payment was made without authority under the law, and that relator was indebted to the state of Texas in this amount, and that under article 4350, Revised Civil Statutes 1925, he could not issue a warrant to relator as long as relator was indebted to the state.

This $775.40 represents claims for the summoning of witnesses in criminal cases who had been summoned at a previous term of court, but who were excused by the court and ordered resummoned at the October, 1930, term.

This case presents only two issues: First, whether the district judge has authority to excuse witnesses and order the district clerk to reissue additional subpœnas for the same witnesses in the same case for a later date during the same term or for the next term of the court, and whether the sheriff is entitled to his fees for serving such duplicate process; and, second, whether the state, having paid the fees for service of such duplicate process, unaware of the procedure followed by the officers, has a right to deduct the amount overpaid to the officer from a later account submitted by him.

It is contended by the respondent that the district judge, sitting as the district court, has no authority to discharge a witness and order him resubpœnaed for the same case at another term of the court; and hence, such purported process being void, that the sheriff is not entitled to collect fees for executing the second subpœna.

Article 103, Penal Code of Texas, reads as follows:

"Before the clerk or his deputy shall be required or permitted to issue a subpœna in any felony case pending in any district or criminal district court of this State of which he is clerk or deputy, the defendant or his attorney or the State's attorney shall make written sworn application to such clerk of each witness desired. Such application shall state the name of each witness desired, the location and avocation, if known, and that the testimony of said witness is believed to be material to the State or the defense. As far as practicable such clerk shall include in one subpœna the names of all witnesses for the State and the defendant and such process shall show that the witnesses are summoned for the State or defendant. If any such clerk or his deputy shall issue any subpœna for any witness in a felony case without complying with this article, or shall issue an attachment without an order of court, he shall be fined not less than twenty-five nor more than two hundred dollars. (Acts 1889, p. 145; Acts 1st C. S. 1897, p. 5; Acts 1913, p. 319.)"

See, also, article 463, Code of Criminal Procedure, as amended by Acts 1931, c. 143, § 4 (Vernon's Ann. C. C. P. art. 463).

It is the argument of the respondent that since the statutes do not expresly authorize the district judge to order subpœnas issued to compel the attendance of witnesses, he is without such power, and that subpœnas can issue only after sworn statements are filed with the clerk by attorneys in the case.

By the Constitution of the state of Texas the district judges are empowered "to issue * * * all writs necessary to enforce their jurisdiction." Const. art. 5, § 8.

Article 1914, Revised Civil Statutes, 1925, provides that "judges of the district courts may either in term time or in vacation, grant * * * all * * * writs necessary to the enforcement of the jurisdiction of the court."

The power to summon witnesses, and compel their attendance upon the court, to the end that justice may be administered, is inherent in the court, or implied from the act creating the court and vesting therein judicial powers. 7 R. C. L. 1033; 15 Corpus Juris 732, § 30; Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691; State ex rel. Rudolph v. Ryan, 327 Mo. 728, 38 S.W.(2d) 717.

In the case of Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 200, 36 L. R. A. 254, 60 Am. St. Rep. 691, the Ohio Supreme Court had under consideration a statute which it was contended abridged the power of the court to punish summarily for a contempt. In the course of the opinion, Judge Shauck for the court used the following language:

"The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end...