THE ATBYORNEY GENERAL
OF TEXAS
Arr-. TEXAH 787ll s-et
&- 720
October 11, 1973 %7-163
The Honorable Oscar McInnis Opinion No. H- 125
Criminal District Attorney
Hidalgo County Re: Requirement that the
Edinburg, Texas 78539 State Comptroller pay
fees of out-of-state
witnesses in advance.
Dear Mr. McInnis: Article 24. 28, V. T. C, CP.
Your request for our opinion concerns the interpretation of Article
24.28 of Vernon’s Texas Code of Criminal Procedure, also known as the
Uniform Act to Secure the Attendance of Witnesses from Without the State
in Criminal Proceedings. Your letter was submitted prior to the close of
the recent legislative session and could not take into account the provisions
of House Bill 844 (Acts 1973. 63rd Leg., ch. 477, p, 1285) which amended
Articles 24.28 and 35.27, both of the Code of Criminal Procedure.
Prior to those amendments confusion existed as to the payment of
fees of out-of-state witnesses. A series of opinions was rendered by this
Department in 1966 and thereafter. House Bill 844 was intended, in large
part, to meet some of the anomalies previously existing between the treat-
ment accorded witnesses from out-of-state and witnesses from within the
State but out-of county.
Article 24.28 of the Code of Criminal Procedure provides that a judge
of a court of record in this State may issue a certificate stating that an out-
of-state witness is a material witness in a prosecution pending in his court
or in a grand jury investigation about to commence. The certificate shall
state the number of days the witness will be required.
Section 4(b) provides, in part:
“If the witness is summoned to attend and testify
in this State he shall be tendered the compensation for
p. 606
. c
The Honorable Oscar Mcfnnis, page 2(H-125)
non-resident witnesses authorized by Article 35.27
of this Code, together with such additional compen-
sation, if any, required by the other State for com-
pliance. ”
Your question is:
“Since the statute requires the mileage and per
diem to be tendered with the certificate of the request-
ing court (Article 24.28, C. C.P.) when is the State
Comptroller required to issue such amounts?”
By its terms, Article 35. 27 now applies not only to out-of-county
witnesses but also to out-of-state witnesses. Sections 2 through 5 gener-
ally provide for the procedure by which, after the tiitness’s appearance,
a claim is to be filed with the Comptroller.
Section 6 in its entirety is as follows:
“Funds required to be tendered to an out-of-state
witness pursuant to Article 24. 28 of this Code shall be
paid by the Comptroller of Public Accounts into the
registry of the Court in which the case is to be tried
upon certificati.on by the Court such funds are necessary
to obtain attendance of said witness. The Court shall
then cause to be issued checks drawn upon the registry
of the Court to secure the attendance of such witness.
In the event that such funds are not used pursuant to this
Act, the Court shall return the funds to the Comptroller
of Public Accounts. ”
Our answer to your questi.on is that, upon certification by the court
in which the case is to be tried that funds in a certain amount are necessary
to obtain the attendance of a witness, the Comptroller of Public Accounts
should pay those funds into the registry of that court to be disposed of by it
in accordance with other provisions of the Code of Criminal Procedure to
secure the attendance of the witness.
p. 607
. -
’ .
.
The Honorable Oscar McInnis, page 3 (H-125)
For our opinion concerning other facets of fees for out-of-state
witnesses, we call to your attention Attorney General Opinion H-107 (1973).
We believe that the amendments to Articles 24.28 and 35.27 of
Vernon’s Texas Code of Criminal Procedure make the following opinions,
heretofore issued by this office, no longer effective: Attorney General
Opinion C-720 (1966) holding that out-of-state witnesses are to be paid in
accordance with the payment of other out-of-county witnesses and Attorney
General Opinion M-863 11971) holding that the county may not advance funds
to witnesses entitled to be reimbursed under Article 24.28 of the Texas Code
of Criminal Procedure. The amended statute specifically provides that the
county in which the proceeding is pending may advance funds to any witness
who will be entitled to compensation under the Article. Further it should
avoid the unfortunate circumstance involved in Opinion M-863 where, be-
cause of the unavailability of funds, the witness could not be compensated
even though he had appeared.
SUMMARY
Articles 24.28 and 35.27 of the Texas Code of
Criminal Procedure, as amended in 1973, require the
Comptroller to pay the statutory witness fee provided
for an out-of-state witness into the registry of the Court
upon certification by the judge that such witness fees are
necessary to compe1 the attendance of the witness. A
county may advance funds to a witness and will be entitled
to reimbursement by the State.
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 608