Honorable Wm. Hunter Opinion NO. c-720
District Attorney
Dalhart, Texas Re: Whether the counties bear
the expense of witness
mileage and per diem
under the Uniform Act to
secure the attendance of
witnesses from without
the State In criminal
Dear Mr. Hunter: proceedings,
In your opinion request you ask the captioned
question. Article 24.28, Vernonls Code of Criminal
Procedure,is the Uniform Act to Secure Attendance of
Witnesses from without the State. Section 4 thereof
provides, in part:
"Sec. 4. If a person in any State,
which by its laws has made provision for
commandingpersons within its borders
to attend and testify in criminal prose-
cutlons, or grand jury Investigations
commenced or about to commence, in this
State, is a material witness in a prose-
cution pending in a court of record in
this State, or in a grand jury lnvesti-
gatlon which has commenced or is about
to commence, a judge of such court may
issue a certificateunder the seal of
the court stating these facts and spe-
cifying the number of days the witness
will be required, Said certificate
may include a recommendationthat the wit-
ness be taken Into immediate custody and
delivered to an officer of this State
to assure his attendance in this State.
This certificateshall be presented to
a judge of a court of record in the
county in which the witness is found.
"If the witness Is summoned to at-
tend and testify in this State he shall
be tendered the sum of ten cents a mile
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Honorable Wm. Hunter, page 2 (C-720 )
for each mile by the ordinary traveled
route to and from the court where the
prosecution is pending and five dollars
for each day that he is required to travel
and attend as a witness, A witness who
has appeared in accordancewith the pro-
visions of the summons shall not be re-
quired to remain within this State a
longer period of time than the period
mentioned in the certificate,unless
otherwise ordered by the court. If
such witness, after coming into this
State, fails without good cause to at-
tend and testify as directed in the
summons, he shall be punished in the
manner provided for the punishment of any
witness who disobeys a summons issued
from a court of record in this State."
As you point out, no provision is made in this
Article as to who should pay such witnesses, There Is,
however, a provision as to who should pay out of county
witnesses contained in Article 35.27, Vernonls Code of
Criminal Procedure,which provides:
"(1) Any witness who has been sub-
poenaed, or has been attached and given
bond for his annearance before anv court.
or before any grand jury, out of 'thecounty
of his residence, to testify in a case
regardless of dispositionof said case,
and who appears in compliancewith the
I obligationsof such subpoena or bond,
shall be allowed seven cents per mile
going to and returning from the court
or grand jury, by the nearest practical
conveyance,and ten dollars per day for
each day he may necessarilybe absent
from home as a w’rtness in such case,
"Provided,any witness who has been
subpoenaedor has been attached and
.g;;;;bond for his appearance before any
out of the county of his residence,
to te;tify in a case, and who appears in
compliancewith said subpoena or with the
obligationsof such bond, and the case
in which he is a witness is reset for a
later day in the same term of court, not
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, -
Honorable Wm. Hunter, page 3 (C- 720)
exceeding four days, shall not be paid
mileage for any additional trip to or
from court he may make by reason of the
resetting of said case unless permission
first had and obtained from the trial
judge to make said trip, but shall be
entitled to receive his per diem for the
additional days he may be in attendance
upon court by reason of the resetting
of the case,
"Witnessesshall receive from the State,
for attendance won courts and nrand juries
in counties other than that of Their Gesi-
denoe in obedience to subpoenas issued
under the provisions of law seven cents
per mile, going to and returning from the
court or grand jury by the nearest prac-
tical conveyance,and ten dollars per
day for each day they may necessarilybe
absent from home as a witness to be paid
as now provided by law; and the foreman
of the grand jury, or the clerk of the
court shall issue such witness certifi-
cates therefor, after deducting therefrom
the amounts advanced by the officers serv-
ing said subpoenas,as shown by the re-
turns on said subpoenas;which certificates
shall be approved by the judge and recorded
by the clerk in a well-bound book kept for
that purpose; provided, that when an indict-
ment can be found from the evidence taken
before an inquest or examining trial, no
subpoena or attachment shall issue for a
witness who resides out of the county in
which the prosecutionis pending to appear
before a grand jury. When the grand jury
shall certify to the judge that sufficient
evidence cannot be secured upon which to
find an indictment, except upon testimony
of non-residentwitnesses, the judge may
have subpoenas issued as provided for by
law to other counties for witnesses to
testify before the grand jury, not to ex-
ceed one witness to any one fact, nor more
than three witnesses to any one case pend-
ing before the grand jury,'
It Is the opinion of this office that the pro-
cedure for payment of the out of state witness Is the
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Honorable Wm. Hunter, page 4 (C-720 )
same as for any other out of county witness. Article
24.28, Sec. 4, Vernon's Code of Criminal Procedure,
merely changes the amount of compensationsuch wit-
ness is entitled to receive,
We are bolstered in this opinion by the fact
that the 59th Legislature,in the General App;og;F;;gn
Bill, appropriatedthe sum of Two Thousand
Dollars for the payment of the expenses of witt?essds
in felony cases or before a rand jury summoned under
the provisions of Article 482a, old Code of Criminal
Procedure,now Article 24.28, Vernonas Code of Crimi-
nal Procedure,to attend and testify in this State.
(59th Legislature,Regular Session (1965), Chapter 720,
H. B. No, 12, page 1691.)
SUMMARY
Out of state witnesses subpoenaed
to apnear in Texas courts are paid in
accordance with the payment of other
out of county witnesses as set forth
in Article 35.27, Vernon's Code of
Criminal Procedure;however, the amount
such witnesses are paid is In accordance
with Article 24.28, Vernon's Code of Crim-
inal Procedure.
Yours very truly,
WAGGONER CARR
AttorneyJjeneralof Texas
By:
REO/er Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V$ Geppert, Chairman
Sam Kelley
Bob Towery
Charles Swanner
James McCoy
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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