Untitled Texas Attorney General Opinion ( 1966 )

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 -3469- 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 -3470- , - 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 -3471- 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 -3472-