. -
THE AYTORNEY GENERAL
OF TEXAS
AUSTIN aa.TEXAR
Rondrable W, K, McClaln
Criminal Dlstrldt Attorney
Georgetown, Texas
Dear Sir: Opinion No.~O-2949
Re: Does the State have the right-
under the law to pay out of county
wftnesses in the trial'of an of-
fense as defined by Article 1157
of the Penal code?
Your letter of recent date Pequestlng our opftilonupoK
the above stated questlon has been~recelved, For ftictualLick
ground of your request we quote the following portlons of your
letter;
"The constable of this County was Indicted by
the Grand Jury for an offense as defined by
Article 1157 of the Penal Code, o a D
"In order for the State to successfully
prosecute this case It wfll be tiecetisarg
td sum-
mons witnesses outside of Williamson County,
"9UESTION
"Does the State have the right, under the
law, to pay out of county witnesses In the trial
of the above offense?'
Article 1157 of the Penal Code reads:
"Any sheriff, deputy sheriff; constable,
deputy, const&le,~Texas Ranger, citg.marshfill,
chief of pollcem8n,,or any &her officer having
under his arrest or fn hla custodg~ang person
as a prisoner who shall torture, torment or pun-
ish such peeson by Inflicting upon him any phgsl-
tialOP mental pain for the purpose.of making
br attemptlng to make'such person confess to
any knowledge of the commission of an offense
against the laws of this State, shall be fined
not less than $l,OO nor more th&n $1,000 oi+
be imprisoned In jail not to exceed one gear,
Honorable W. K. McClaln, page 2 O-2949
'orboth such fine and Imprisonment, and in
aadltlon thereto the jury may state In Its
verdict that the defendant should never there-
after be allowed to hold any office of profit
or trust under the laws of this State, or any
subdivision thereof, nor any city or town
thereof. Should the jury SO state in Its
verdict, the court trying said case shall ren-
der judgment In accordance with'said verdict
and t'hereafterthe defendant shall forever be
barred from holding any such office."
Article 47 of the Penal Code reads:
"An offense'ls an act oromission forbladen~
by positive law, and to which is annexed, on con-
vlotlon, any punlshment prescribed In this Code.
An offense which may -- not must -- be punlshable
by death orbg confinement In the penltentlar~y
Is a felony; every other offense Is a misdemeanor.
Felonies are elther capital or not capital.' An
offense for which the highest penalty Is death
Is a capital felony. Offenses are divided Into
felonies and misdemeanors."
It Is clear from readlng Articles 47 and'1157 of'the
Penal Code;supra, that the offense deflned,by said.Artlcle
1157, suma, is a-misdemeanor. Furthermore; the caption of
Senate-.Blll:No.8, Chapter 129 of the Acts of 2 23; 38th
Legislature, page 269 (Article 1157, Penal-'Code
7 provides
that a violation of said article shall be a misdimeanor.
i ,
Article 5, Section 8, of the Constitution of Texas,
which fixes the orlglnal jurisdiction of cases lnvolvl'ng
official misconduct in the District Court, reads ln part:
"The~Distrlct Court shall have original
jurlsalctlon in all criminal cases of the'grade
of a felony; s . . of all mlsdeme;nors lnvolv-
lng official misconduct; 0 0 0 .
The Court.of Criminal A peals~of Texas Inthe case'of
Simpson v. State, 137 S.W. (2dP 1035, held -~
thatviolations of
Article 1157 of the Penal Code,Constltute "officla~~mlsconduct",
and that such violations come within the exclusive original jur-
isdiction of the District Court.
Article 1036, Code of Crlmlnal Procedure, authorizes
and provides for compensation of any witness who may have
been recognized, subpoenaed, attached and given bond for his
Honorable W. R, McCZain, page 3 O-2949
appearance before any court OP before any Grand Jury, out of
the county of hLs residence to testify in a felony case, and
who appears in Compliance with the obligations of such recog-,
nizance or bond; thls'statute fur,therprovides wftness fees to
be allowed only to such witnesses as may have been summoned on
the sworn written application of the Stat,e'sattorney OP th8
defendant or his attorney as provided in APtlCl8 463; Code of
Criminal Procedure, which sworn application must be made at
the~tlme of the-procuring of the subpoena, attachment for, or
recognfzance of, the witness.
Article 1036, Code of Criminal Procedure~supra, ap-
plies only to out of'county witnesses in felony cases before
the District Courts and has no applfcation as to witnesses in
misdemeanor cases in the District Courts.
After a thorough search of the Statutes, we are unable
to ffnd any authority for the State compensating witnesses
in misdemeanor cases of the character with which we are here
coneemed o
Trusting that the foregoing disposes of your inquiry,
we remain
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/D, Burle Davlss
D, Burl8 Daviss
Assfstant
APPROVED JAN 4,~1941
s/Gerald C, Mann
ATTORNEY GENERAL OF TEXaS
Approved Opinion Committee By s/BWB Chairman