Mr. Weldon C. Wells . Opinion No. JM-627
McLennan County Auditor
500 Columbus Avenue Re: Payment of witness fees
Waco, Texas 76701 under section 35.27 of the
Code of Criminal Procedure
Dear Mr. Wells:
We have accepted your opinion request because you state that the
need for answers to your questions is urgent and the criminal district
attorney of McLennan County has failed to respond to your questlons.
V.T.C.S. art. 334.
You ask a number of questions which you state involve a construc-
tion of article 35.27, of the Code of Criminal Procedure, which pro-
vides for the compensation of nonresident witnesses:'
1. Are the emounts of 'reasonable and
necessary' expenses referred to in section 1
limited to the amounts the state is allowed to
reimburse for such expenses under section 2?
2. Is the anount the county is allowed to
advance to any witness under section 7 limited to
the amount of reimbursement the county is entitled
to receive from the state as an assignee?
3. Is the prosecutor authorized to obligate
the county to make payments to third parties for
expenses on behalf of any witness in lieu of
requesting an advance of funds to the witness as
provided in section 7?
4. Is the prosecutor authorized to obligate
the county to pay for expenses of any witness in
excess of the amounts eligible for reimbursement
from the state under section 7?
Section 2 of article 35.27 provides that the compensation paid by
the state to a nonresident witness shall not exceed 550 per day for
living expenses and 16 cents per miie for travel by personai auto-
mobile. Code Grim. Proc. art. 35.27, 92. While article 35.27 of the
Code of Criminal Procedure has been amended since 1973, we believe no
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Mr. Weldon C. Wells - Page 2 (m-627)
change has been made which affects the validity of the analysis
employed in Attorney General Opinion H-107 (1973) insofar as it is
pertinent to your first question. In that opinion it was concluded
that the amount provided per day for living expenses was not a fixed
per diem but is a reimbursement for actual expenses not to exceed that
amount. The amount per mile is a fixed amount for travel by
automobile.
Section 1 of article 35.27 provides that the nonresident witness
shall be compensated by the state for the reason-
able and necessary travel and daily living
expenses he incurs by reason of his attendance as
a witness at such proceedings.
Section 3 provides that a nonresident witness will be allowed
compensation for travel and living expenses . . .
[and] such other expenses as may be required by
the laws of this state or the state from which the
attendance of the witness is sought.
When sections 1, 2, and 3 of article 35.27 are read together
it is apparent that the Legislature, in language
which is clear, although somewhat broad, has made
provision for the reimbursement of actual expenses
incurred when the witness travels by bus, train,
or air.
Attorney General Opinion H-107 (1973) at 4. As to what is included
within the ambit of "such other expenses as may be required by the
laws of this state or the state from which the attendance of the
witness is sought." this provision, while broad in its language, is by
its very terms unsusceptible of greater clarity without reference to
particular statutes. See Code Grim. Proc. art. 24.28. The amounts of
"reasonable and necesrry" expenses to be compensated a nonresident
witness under article 35.27, section 1, are limited to the amounts
provided in article 35.27, sections 1, 2, and 3.
In your second question, you ask whether the amount the county is
allowed to advance any witness under section 7 of article 35.27 is
limited to the amounts of reimbursement the county is entitled to
receive from the state as an assignee. It is our opinion that section
7 sets the limits as to funds the county may advance to any witness
who will be entitled to
compensation under this Article in such amounts as
may be reasonabiy necessary to enable the witness
to attend as required or requested, including any
sumsin excess of the compensation provided for by
this Article which are required for compliance
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Mr. Weldon C. Wells - Page 3 (JM-627)
with Section 4 of Article 24.28 in securing the
attendance of a witness from another state under
the Uniform Act. . . .
Code Grim. Proc. art. 35.27, 17. Section 7 further provides that
"upon any such advance or advances, the county shall be entitled to
reimbursement by the State, as an assignee of compensation due a
witness from the State." (Emphasis added.)
It is our opinion that under section 7 of article 25.27, the
amount the county may advance any witness is limited to the amount of
reimbursement the county is entitled to receive from the state as an
assignee.
You next ask:
Is the prosecutor authorized to obligate the
county to make payments to third parties for
expenses on behalf of any witness in lieu of
requesting an advance of funds to the witness as
provided in section 7?
Insofar as compensation for a nonresident witness is provided for in
article 35.27, we are of the opinion that section 7 provides the
exclusive method by which the prosecutor may secure an advance of
funds from the county treasury to any witness who may be entitled to
compensation under this article. Section 7 provides for the
advancement of such funds "upon request of the district attorney or
other prosecutor charged with the duty of prosecution in the
proceeding." A county may not otherwise be obligated to make payments
to third parties. Attorney General Opinion H-125 (1973).
In answer to your last question, it is our opinion that the
prosecutor is not authorized to obligate the county for expenses for
any witness in excess of the amounts eligible for reimbursement from
the state under section 7 of article 35.27. We emphasize that our
opinion is limited to witnesses covered by article 35.27 of the Code
of Criminal Procedure.
SUMMARY
The amounts of "reasonable and necessary"
expenses to be compensated a nonresident witness
under article 35.27, section 1, of the Code of
Criminal Procedure, are limited to the amounts
provided in article 35.27, sections 1. 2, and 3.
The amount a county is allowed to advance a
nonresident witness under article 35.27, section
7, is limited to the amount of reimbursement the
county is entitled to receive from the state as an
assignee.
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Mr. Weldon C. Wells - Page 4 (JM-627)
Under the provisions of article 35.27,
section 7 provides the exclusive method by which
the prosecutor way secure an advance of funds for
a nonresident witness.
The prosecutor is not authorized to obligate
the county for expenses for any nonresident
witness in excess of the amounts eligible for
reimbursement from the state under article 35.27,
section 7.
Very Itruly yours
Q&
JIM MATTOX
Attorney General of Texas
JACK HIGRTOWKR
First Assistant Attorney General
MARY KFLLER
Executive,Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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