Honorable H. D. Stringer 

County Attorney 

Hall Cbunty 

Memphis, Texas 

Dear Sir: Opinion no. O-3633 

Re: Does the State or a 

defendant have the 

right to subpoena 

and attach out of 

county witnesses in 

a misdemeanor case? 

This is to acknowledge receipt of your recent 

letter asking our opinion as stated in the above question. 

While we have made a careful study of the question, in the 1Fght of the statutes and the case cited by 

you, we are unable to find any authority authorizing the 

use of a subpoena or attachment for out of county witnesses 

in misdemeanor cases. 

In the case of Cotbren v. State, 139 Tex. Cr. R. 

644, 141 S.W. (2d) 594, cited in your letter of June 7th, 

the appellant was convicted in the county court of San 

Saba County on a misdemeanor charge and assessed a fine. 

ou motion for rehearing appellant insisted that error was 

committed in the refusal of a continuance because of an 

absent witness. We quote from Judge Grave's opinion on the 

motion for rehearing: 

"Appellant's request for a continuance was 

denied, as well as his request to have a subpoena issued for such witness, the trial court 

stating that he did not think such was necessary. 

Nowhere did appellant state what he expected to 

prove by the son of the State's witness, and it 

is evident from the record that he did not know, 

as he only found out that such witness was 

present at the alleged sale when the agent so 

testified. It was also shown that the witness 

was not in the county at the time of the trial, 
Honorable Il. D. Stringer, page 2 

but was supposed to be In Corpus Christi, 

and therefore not amenable to a subpoena 

Issued out of the county court." (Emphasis 

ours) 

As stated above, we have been unable to find any 

other expressions of the Court of Criminal Appeals relative 

to process for witnesses in misdemeanor cases in counties 

outside the county of prosecution. The rule that such process is unavailable, however, seems to be generally recognized. That the Legislature of this State recognizes such 

rule is evident from the insertion of Section 5 In the 

present so-called "Rot Check Law." Such sectlon requlres 

process to be Issued and served "In the County or out of the 

?EP 

." provides that such process shall "ha the same 

b n ing force and effect as though the offensrb eing prosecuted were a felony;" and further declares: "and all officers 

issuing ana serving such process In or out of the county wherein the prosecution is pendinR. and all witnesses from within 

or without the county wherein the uroseoutlon is pendlng, 

shall be compensated in like manner as though the offense 

were a felony in grade." (Emphasis ours). See General Laws, 

46th Legislature, p. 246; Art. 567b, Vernon's Annotated 

Penal Code, pocket supplement, Sec. 5. 

In vFew of the above expressions by the Court of 

Crlmlnal Appeals and the Legislature, we are impelled to 

adhere to the opinions heretofore rendered by this Department that the question as stated should be answered in the 

negative. 

Yours very truly 

APPROVED JUN 14, 1941 

/s/ Grover Sellers 

ATTORNEY GERERAL OF TEXRS 

FIRST ASSISTANT 

ATTORNEY GENERAL 

BY /S/ 

Benjamin Woodall 

Assistant 

BW:db/mjs 

APPROVED 

OPINION 

coMMITTEE 

BY BWB 

Chairman