THE AITORNEY GENE 

OFTEXAS 

September 20, 197.3 

&p&J&z%a-r3-3v 

The Honorable Robert S. Calvert 

Comptro:Ller of Public Accounts 

State Finance Building 

Austin, Texas 

Dear Mr. Calvert: 

Opinion No. H- 107 

Re: Various questions regarding 

House Bill 844, 63rd Legisture, .L973, amending Articles 

24.28 and 35.27, Texas Code 

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 witnessess 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 .L of amended Article 35.27 renders eligible for such “compensation” 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 prohibition 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 mileage. This conc’lusion is based upon the provisions which require the witness 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 :L of 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 witness 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 compensation 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 confinement 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 iaterpreted 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 punishment. ] 

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 prosecution 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 permissible 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 Article 24.16. 

p. 510 
The Honorable Robert S. Calvert, page 6 (H-107) 

This is presently a moot question because, as shown by the appropriation 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 guidelines for the payment of mileage. The.rights of a witness tom recover mileage 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 then witness, 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 necessary 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 Attorney 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 interpretation of Article 1036 furnished little guidance or relevance in answering 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 

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” 

6,000 

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 

1. Under the provisions of Articles 24.28 and 

35.27, Texas Code of Criminal Procedure, as amended 

by House Bill 844, both out-of-state witnesses and outp. 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