THE AITORNEY GENE
OFTEXAS
September 20, 197.3
&p&J&z%a-r3-3v
The Honorable Robert S. Calvert Opinion No. H- 107
Comptro:Ller of Public Accounts
State Finance Building Re: Various questions regarding
Austin, Texas House Bill 844, 63rd Legis-
ture, .L973, amending Articles
24.28 and 35.27, Texas Code
Dear Mr. Calvert: of Criminal Procedure
You have requested our opinion on a number of problems relating to
provisions of House Bill No. 844, Acts of the 63rd Legislature (1973),
amending Articles 24. 28 and 35.27 of the Texas Code of Criminal Procedure.
Article 24. 28, T. C. C. P., is generally known as the “Uniform A,ct to
Secure the A~ttendance of Witnes,ses frdti Without the State’.‘. and:,Article ,35; 27
relates t,o “witness fees. ”
The general effect of these amendments is to broaden the authority of
local and state officials in arranging for the testimony of out-of-state wit-
nessess and in authorizing compensation of witnesses who reside outside the
county in which the prosecution is pending. Paragraph (d) of $ 3 of Article
24.28, as amended, changes from an allowance of lO$ per mile and $5 per
day to adopt, by reference, the provisions for “compensation” and “additional
compensation” contained in Article 35. 27 of the Code, as amended.
Section .Lof amended Article 35.27 renders eligible for such “compen-
sation” a witness who has appeared in response to a subpoena or a written
request of the prosecuting attorney or the judge. Prior to the amendment,
only those witnesses who appeared under subpoena were eligible for witness
fees or mileage.
Your first three questions are as follows:
p. 506
The Honorable Robert S. Calvert, page 2 (H-107)
I”1
. Cou:ld the compensation or expenses allowed
under Article 35.27 C. C. P. be lega,Lly paid
to an out-of-State witness who is requested
in writing by the prosecuting attorney or the
court to appear as a witness in this State?
“2. Could the compensation or expenses allowed
under Article 35.27 C. C. P. be legally paid
to an in-state witness who is requested in
writing by the prosecuting attorney or the
court to appear as a witness?
“3. Must a witness be compelled to appear before
the court under a subpoena, summons, or
attachment before a witness would ,legally be
entitled to compensation or expenses? ”
We answer your first question in the affirmative because under § 1 of
Article 35. 27, as amended, a request in writing by the prosecuting attorney
or the court is on a parity with a subpoena or other legal compulsion.
Our answer to your second question is the same. Article 35.27
expressly applies to witnesses who reside “outside the state or the county
in which the prosecution is pending. ”
Our answers to questions no. 1 and 2 above compel a negative answer
to your third question.
In connection with your first three questions you state:
“The above three (3) questions are asked
pursuant to the provisions of Attorney General
Opinions Nos. WW-288,0-4251,0,-73,27, V-24, C-579
and Article 1, Section 10 of the Constitution, and
Article III, Section 51 of the Constitution. ”
p. 507:~:
The Honorable Robert S. Calvert. page 3 (H-107)
The Attorney General Opinions that you cite [with the exception of
Opinion No. V-24 (1947)] represent interpretations of the law made prior
to the recent amendments. We believe that the amendments render those
opinions ineffective and that they are superceded by the answers we have
given to your questions.
Article 1 $10 of the Texas Constitution provides in part:
“In all criminal prosecution the accused . . .
shal:l have compu:lsory process for obtaining witnesses
in his favor, except that when the witness resides out
of the State and the offense charged is a violation of
any of the anti-trust laws of this State, the defendant
and the State shall have the right to produce and have
the evidence admitted by deposition, under such rules
and laws as the Legislature may hereafter provide. . . . ”
We do not believe that this constitutional provision impylies any pro-
hibition against compelling out-of-state witnesses to appear as outlined in
Article 24.28.
Section 5:l of Article 3 of the Texas Constitution prohibits gratuities
of public moneys to individuals. Attorney General Opinion No. WW-288
holds that, when a witness was under no “legal obligation” to appear in a
criminal proceeding, the payment of his expenses constituted a “gratuity. ”
We believe that witnesses requested’by the prosecution or the judge to
appear under the provisions of Article 24. 28 are under a “legal obligation”
to appear. If he refuses he can be effectively subpoenaed. Thus payment
of his expenses is not a gratuity and is not violative of $ 51 of Article 3 of
the Texas Constitution.
Your fourth question is as follows:
“4. Is the compensation provided for in Article
35.27 C.C.P., Section 2, a per diem of
$25.00 per day or a reimbursement for actual
expenses not to exceed $25.00 per day? ”
p. 508
The Honorable Robert S. Calvert, page 4 (H-107)
In our opinion $2 of Article 35.27 authorizes the re-imbursement
of the witness for his actual expenses not to exceed $25 per day plus mile-
age. This conc’lusion is based upon the provisions which require the wit-
ness to “make an affidavit setting out the travel and daily living expenses
. . * ” and upon the provision that such compensation “shall not exceed
$25 per day for living expenses and twelve cents per mile fo.r travel by personal
automobi,le. ”
Your fifth question is as fo:llows:
“5. Is the travel by personal automobile at
twelve cents per mile a Legislatively
determined amount for each mile traveled? ”
We believe that 12$ per mile was intended by the Legislature to
establish a fixed charge per mile, similar to the reimbursement’: of,
state emp:loyees for personal automob& trave,l, and that the witness does
not have to prove an actual expense of this amount per mile traveled in
order to be entitled to reimbursement at this rate. Accordingly, your
fifth question is answered affirmatively.
Your sixth question is as follows:
“6. If a witness traveled by bus, train, or air,
what reimbursement cou,ld be allowed to
said witness for said travel? ”
Section :Lof Article 35. 27 provides that the non-resident witness
“shall be compensated by the state for the reasonable and necessary travel
and daily living expenses he incurs by reason of his attendance as a witness
at such proceedings. ” Section 2 covers per diemand automobile allowances.
Section 3 contemplates that a witness will be al.lowed “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 these provisions are read together it is apparent that the
Legis,lature, in language which is c:lear, although somewhat broad, has made
provision for the re-imbursement of actual expenses incurred when the wit-
ness travels by bus, train, or air.
p. 509
The Honorable Robert S. .Calvert, page 5 (H-107)
Your seventh question is as foliows:
“7. Is the State authorized to pay a witness compen-
sation or expenses to an out-of-State witness
summoned to testify in any misdemeanor case
or only in those cases for which a jai11 sentence
may be the punishment? (In this connection see
Article 24.16 C. C. P.) ”
Article 24.16 provides as follows:
“Where, in misdemeanor cases in which confine-
ment in jail is a permissible punishment, or in felony
cases, a witness resides out of the county in which the
prosecution is pending, the State or the defendant shall
be entitled, either in term-time or in vacation, to a
subpoena to compel the attendance of such witness on
app:lication to the proper clerk or magistrate. . . .
Witnesses in such tiisdemeanor ‘cases shall
be’,conipensated in: thesame manner as in ’
felony iases.‘. . ., . ” [T,his. provi’sion wan iater-
preted in A tt o.rney General Opinion C-S79 (1966) to
authorize payment of witnesses subpoena&in misdemeanor
cases in which confinement in jail is a permissible punish-
ment. ]
Section :4(a); of Articyle 24. 28, as amended by House Bill 844; applies
to any “prosecution pending in a court of record in this State. ”
Article 35. 27, as amended, applies to any witness “in a criminal
proceeding who resides outside the State or the county in which the prose-
cution is pending. . . . ”
In the few instances wherein a misdemeanor prosecution may be
pending in a “court of record” in which confinement in jail is not a permis-
sible punishment, we believe that an out-of-state witness can be subpoenad
and paid under the provisions of Articles 24.28 and 35. 27; whereas a witness
merely outside of the county cannot be paid because of the ,limitation of Arti-
cle 24.16.
p. 510
The Honorable Robert S. Calvert, page 6 (H-107)
This is presently a moot question because, as shown by the appro-
priation bill quoted herein below, the moneys appropriated for expenses
of witnesses under Article 24.28 is confined to “felony cases”.
Your 8th question is as fo,llows:
“8. In the securing of witnesses from without the
State, could this department pay a witness
who is summoned by a judge of that state to
appear in Texas, if that state has not adopted
the Uniform A.ct? (In this connection I refer
you to State vs. Jordan 320 P. 2d 446, 83
ARIZ. 248, 78 S. CT 1364, 357 U.S. 922, 2
L. ED. 1367, 79 S. CT 17, 358 U.S. 859, 3
L. ED. 2d 93. ”
Attorney General Opinion No. M-1038 (1972) holds that even though
the State of Georgia has not adopted the Uniform Act, a witness who is
subpoenaed by a Texas court in accordance with the provisions of $2 of
Article 24. 28 and who obeys the subpoena and testifies in Texas is entitled
to be paid witness fees and mileage in accordance with the statute. The
1973 amendment would support the same result, and we are not required
to reconsider Opinion M-1038. State v, Jordan, 320 P 2d 446 (Ariz..Sup.
1958, cert. den. 357 U.S. 920, reh. den. 358 U.S. 859) does not limit the
Legislature’s authority to provide re-imbursement for the expenses of
witnesses, regardless of where they live and regardless of the adoption of
the Uniform Act by the state where they live.
Your 9th question is as follows:
“9. If more than one witness rides in the same
car , could each witness be legally paid 12$
per mile? ”
The answer to this question is “no”. Only the person furnishing the
automobile and paying the expenses of its operation incurs any “reasonab,le
and necessary ” travel expense for its use and only he can be reimbursed. If
the witnesses share the expenses, nevertheless only 12$ per milk can be
reimbursed, to be divided as the witnesses agree among themselves.
p. 511
The Honorable Robert S. Galvert, page 7 (H-107)
Your tenth question is as follows:
“10. Could a witness travel back and forth
between his home and the court and
receive 12$ per mile for each trip or
would permission from the judge need
to be had before additional trips could
be made? ”
Sedtion 2 of Article35. 27, as amended, furnishes only general guide-
lines for the payment of mileage. The.rights of a witness tomrecover mile-
age for commuting~ back and forth to court would, we believe, be determined
by the word “necessitated” contained in $2. Mileage for commuting~would
be “necessitated” if it would constitute a smaller claim than would result
from a claim for per diem; ‘or-if, because of the health or personal affairs
of thenwitness, it would be necessary for the witness to commute. Since
.
the witness is required by $ 2 to submit his claim in affidavit form, and
since the payment of such claim i’s subject to approval by the judge of the
court ($ 4), it i-nay be incumbent upon the witness, as a practical matter,
to secure the judge’s approval before he decides to commute. Therefore,
the answer to Question No. 10 would be that the witness is confined to nec-
essary travel expenses, including mileage which may include multiple trips
and that these trips do not necessarily have to be approved in advance by the
judge. Such trips are ,subject,to disapproval if they are not necessary.
Your eleventh question is as follows:
“11. Could a witness, where a case has been set
for trial and the witness appear and the case
is postponed to a future date of the same term
of coyit and the witness is directed to return
to the court at that time, be entitled to the 12$
per mile?”
The discussion under Question No. 10 is applicable here. If the witness
is directed by the judge to re-appear from time to time, his mileage would be
“necessary” upon each trip to the court.
In connection with Questio.ns 10 and 11 you call our attention to Attor-
ney General Opinions No. Is O-1594 (1939), O-6456 (1945) and a letteropinion
dated March 13, 1934: These opinions all construe Article 1036, Texas Code
p. 512
The Honorable Robert S. Calvert, page 8 (H-107)
of Criminal Procedure, which was the predecessor of Article 35.27.
The new statute bears little resemblance to the old, and the prior inter-
pretation of Article 1036 furnished little guidance or relevance in answer-
ing questions 10 and 11.
Your 12th question is as follows:
“12. Article 35. 27 C. C. P., Section 3 provides
for other expenses. Who should make the
claim for this type of expense and to whom
would it be payable, and is there any money
appropriated for :the payment of this type of
expense? ”
Section 3 of Article 35. 27, as amended, provides:
“In addition to compensation for travel and
living expenses, the Comptroller of Public Accounts,
upon proper application by the attorney for the State,
shall pay 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. ”
The three questions are answered as follows: (1) The application is made
by the attorney for the state; (2) The claim normally would have to be made
payable to the witness; (3) The Appropriation Bill contains an appropriation
for the payment of this type of expense.
The General Appropriations Act for 1974-1975, at page l-16, contains
the following appropriations:
11. “Expenses of attached witnesses,
witness fees and mileage allowed
witnesses where the witness lives
outside the county where the case
is being tried, allowed under
Article 35. 27, C. C. P. 70,000 70,000
p. 513
The Honorable Robert S. Calvert, page 9 (H-107)
I’.. . .
13. “Expenses of witnesses
in felony cases or before
a grand jury summoned
under the provisions of
Article 24.28, C. C. P.
to attend and testify in
this State. 6,000 6,000
14. “To pay the Deficiency
Certificates issued by the
State Comptroller under
the provisions of Article
35.27, C. C. P. for witness
fees issued for the fiscal
year beginning September 1,
1971 through August 31, 1972. 2, 000”
Paragraph (b) of $ 4 of Article 24.28 adopts the provision of Article
35. 27 with respect to the compensation of non-resident witnesses.
It will be observed that Item 13 in the Appropriation Bill does not
confine itself to a particular type of expense, such as witness fees or
mileage. Therefore, in our opinion, this language is broad enough to
constitute an appropriation of funds with which to reimburse an out-of-state
witness, not only for the travel and living expenses referred to in § § 1 and
2, but also the “other expenses” referred to in $3 of Article 35. 27, as
amended. As noted above, item 13 is limited to felony cases and apparently
no money has been appropriated to pay out-of state witnesses who appear in
any kind of misdemeanor case under the provisions of Article 24. 28.
SUMMARY
Under the provisions
1. of Articles 24.28 and
35.27, Texas Code of Criminal Procedure, as amended
by House Bill 844, both out-of-state witnesses and out-
p. 514
The Honorable Robert S. Calvert, page 10 (H-107)
of-county witnesses can be legally paid reasonable
and necessary expenses if they are requested in
writing by the prosecuting attorney or the court to
appear as a witness in this State.
2. The $25 per day provided for in Article
35.27, T.C.C.P., is not a fixed per diem but is a
reimbursement for actual expenses not to exceed
$25 per day.
3. The 12$ per mile provided in Article 35.27,
T. C. C. P., is a legislatively determined and fixed
amount for each mile traveled.
4. A witness who travels by bus, train or air
is reimbursed for his actual out-of-pocket expense,
provided that such method of travel is reasonable and
necessary.
5. Under Article 24.28 the State can pay an
out-of-state witness compensation for appearing to
testify in any misdemeanor, but a merely out-of-county
witness can only be paid for testimony in a misdemeanor
case for which a jail sentence may be the punishment
under Article 24.16.
6. The State Comptroller can pay a witness who
is summoned to appear in Texas by a judge of a state
that has not adopted the Uniform Act.
7. If more than one witness rides in the same
care, only the owner of the car can be legally paid 12$
per mile.
8. When a witness travels back and forth by personal
automobile between his home and the court either during a
trial or when a case has been set for trial and postponed, he
p. 515
The Honorable Robert S. Calvert, page 11 (H-107)
is entitled to 12$ per mile for each trip providing
the same is reasonable and necessary and is
approved by the judge.
91 The “other expenses” in addition to travel
and living expenses, contemplated by $ 3 of Article
35.27 should be applied for by the attorney for the
state, paid to the party who incurred the expenses
and money has been appropriated for such payment.
OHN L. HILL
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 516
Untitled Texas Attorney General Opinion
Combined Opinion