# THE AITORNEY GENE OFTEXAS

September 20, 197.3



# &p&J&z%a-r3-3v The Honorable Robert S. Calvert Comptro:Ller ofPublic 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 ona number ofproblems relating to provisions ofHouse Bill No. 844, Acts ofthe 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 theA~ttendance ofWitnes,ses frdti Without the State’
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.and:,Article ,35; 27 relates t,o“witness fees. ” The general effect ofthese amendments is to broaden the authority of local and state officials inarranging for the testimony ofout-of-state witnessess and in authorizing compensation ofwitnesses who reside outside the county inwhich the prosecution is pending. Paragraph (d)of $3ofArticle 24.28, as amended, changes from an allowance of lO$per mile and $5 per day to adopt, by reference, the provisions for “compensation” and “additional compensation” contained inArticle 35. 27 ofthe Code, as amended. Section .Lofamended Article 35.27 renders eligible for such “compensation” a witness who has appeared in response to a subpoena or a written request ofthe prosecuting attorney or thejudge. 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. 506The 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 inwriting by the prosecuting attorney or the court to appear as awitness inthis 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 toappear as awitness?

“3. Must awitness 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 §1of Article 35. 27, as amended, a request inwriting by the prosecuting attorney or the court is ona parity with a subpoena or other legal compulsion. Our answer to your second question is the same. Article 35.27 expressly applies towitnesses who reside “outside the state or the county in which the prosecution is pending. ” Our answers toquestions no. 1and 2above 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 ofAttorney General Opinions Nos. WW-288,0-4251,0,-73,27, V-24, C-579 and Article 1, Section 10of the Constitution, and Article III, Section 51ofthe 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 ofthe law made prior tothe recent amendments. We believe that the amendments render those opinions ineffective and that they are superceded by the answers we have given toyour questions. Article 1$10 ofthe Texas Constitution provides in part:

“In all criminal prosecution the accused
. . . shal:l have compu:lsory process for obtaining witnesses inhis favor, except that when the witness resides out ofthe State and the offense charged is a violation of any ofthe anti-trust laws ofthis 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:lofArticle 3ofthe Texas Constitution prohibits gratuities of public moneys to individuals. Attorney General Opinion No. WW-288 holds that, when awitness was under no “legal obligation” to appear in a criminal proceeding, the payment ofhis expenses constituted a “gratuity. ” We believe that witnesses requested’by the prosecution or thejudge to appear under the provisions ofArticle 24. 28 are under a “legal obligation” to appear. Ifhe refuses he can be effectively subpoenaed. Thus payment ofhis expenses is not a gratuity and is not violative of $51ofArticle 3of the Texas Constitution. Your fourth question is as follows:

“4. Is the compensation provided for inArticle 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. 508The Honorable Robert S. Calvert, page 4 (H-107)

In our opinion $2 ofArticle 35.27 authorizes the re-imbursement ofthe 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 centsper mile fo.rtravel bypersonal 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, andthat the witness does not have to prove an actual expense ofthis 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. Ifawitness traveled by bus, train, or air, what reimbursement cou,ld be allowed to said witness for said travel? ” Section :LofArticle 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 ofhis attendance as a witness at such proceedings. ” Section 2covers per diemand automobile allowances. Section 3contemplates that awitness will be al.lowed “compensation for travel and living expenses” and “such other expenses as may be required by the laws ofthis State or the state from which the attendance ofthe 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 ofactual expenses incurred when the witness travels by bus, train, or air.

p. 509The Honorable Robert S. .Calvert, page 5 (H-107)

Your seventh question is as foliows:

“7. Is the State authorized to pay awitness compensation or expenses to an out-of-State witness summoned to testify in any misdemeanor case or only in those cases for which ajai11sentence may be the punishment? (Inthis connection see Article 24.16 C. C.P.) ” Article 24.16 provides as follows:

“Where, in misdemeanor cases in which confinement injail is a permissible punishment, or in felony cases, awitness resides out ofthe 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 Atto.rney General Opinion C-S79 (1966) to authorize payment ofwitnesses subpoena&in misdemeanor cases inwhich confinement injail is a permissible punishment. ] Section :4(a); ofArticyle 24. 28, as amended by House Bill 844; applies to any “prosecution pending ina 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 inwhich the prosecution is pending.
. . .” Inthe few instances wherein a misdemeanor prosecution may be pending in a “court of record” inwhich confinement injail is not a permissible punishment, we believe that an out-of-state witness can be subpoenad and paid under the provisions ofArticles 24.28 and 35. 27; whereas a witness merely outside ofthe county cannot be paid because ofthe ,limitation ofArticle 24.16.

p. 510The 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 ofwitnesses under Article 24.28 is confined to “felony cases”
. Your 8thquestion is as fo,llows:

“8. Inthe securing ofwitnesses from without the State, could this department pay awitness who is summoned by ajudge ofthat state to appear in Texas, if that state has not adopted the Uniform A.ct? (Inthis connection Irefer 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, awitness 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 inaccordance 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 ofwhere they live and regardless of the adoption of the Uniform Act by the state where they live. Your 9th question is as follows:

“9. Ifmore 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 ofits 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 asthewitnesses agree among themselves.

p. 511The Honorable Robert S. Galvert, page 7 (H-107)

Your tenth question is as follows:

“10. Could awitness travel back and forth between his home and the court and receive 12$ per mile for each trip or would permission from thejudge need to be had before additional trips could be made? ” Sedtion 2of Article35. 27, as amended, furnishes only general guidelines for the payment ofmileage. The.rights ofawitness 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 itwould 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, itwould be necessary for the witness to commute. Since

. the witness is required by $2to submit his claim inaffidavit form, and since the payment of such claim i’s subject to approval by thejudge of the court ($4), it i-naybe incumbent upon the witness, as a practical matter, to secure thejudge’s approval before he decides to commute. Therefore, the answer to Question No. 10would 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 tobe approved in advance by the judge. Such trips are ,subject,to disapproval ifthey are not necessary.

Your eleventh question is as follows:

“11. Could awitness, where a case has been set for trial and the witness appear and the case is postponed to afuture 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. 10is applicable here. Ifthe witness is directed by thejudge to re-appear from time to time, his mileage would be “necessary” upon each trip to the court. Inconnection with Questio.ns 10and 11you call our attention to Attorney General Opinions No. IsO-1594 (1939), O-6456 (1945) and a letteropinion dated March 13, 1934: These opinions all construe Article 1036, Texas Code

p. 512The 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 inanswering questions 10and 11. Your 12th question is as follows:

“12. Article 35. 27 C. C. P., Section 3provides for other expenses. Who should make the claim for this type of expense and to whom would itbe payable, and is there any money appropriated for :thepayment ofthis type of expense? ” Section 3of 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 ofthis State or the state from which the attendance ofthe 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, atpage l-16, contains the following appropriations:

11. “Expenses ofattached 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. 513The Honorable Robert S. Calvert, page 9 (H-107)

I’
.. . . 13. “Expenses ofwitnesses 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 ofArticle 35.27, C.C. P. for witness fees issued for the fiscal year beginning September 1, 1971through August 31, 1972. 2, 000” 6,000

Paragraph (b) of $4 ofArticle 24.28 adopts the provision ofArticle 35. 27 with respect to the compensation of non-resident witnesses. Itwill be observed that Item 13inthe Appropriation Bill does not confine itself to aparticular type of expense, such as witness fees or mileage. Therefore, in our opinion, this language is broad enough to constitute an appropriation offunds with which to reimburse an out-of-state witness, not only for the travel and living expenses referred to in §§1and 2, but also the “other expenses” referred to in $3 of Article 35. 27, as amended. As noted above, item 13is 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 ofArticle 24. 28. SUMMARY 1. Under the provisions ofArticles 24.28 and 35.27, Texas Code of Criminal Procedure, as amended by House Bill 844, both out-of-state witnesses and outp. 514The Honorable Robert S. Calvert, page 10(H-107)
of-county witnesses can be legally paid reasonable and necessary expenses ifthey are requested in writing by the prosecuting attorney or the court to appear as awitness inthis State. 2. The $25 per day provided for inArticle 35.27, T.C.C.P., is not afixed per diem but is a reimbursement for actual expenses not to exceed $25 per day. 3. The 12$ per mile provided inArticle 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 amisdemeanor case for which ajail sentence may be the punishment under Article 24.16. 6. The State Comptroller can pay awitness who is summoned to appear in Texas by ajudge of a state that has not adopted the Uniform Act. 7. Ifmore than one witness rides inthe same care, only the owner ofthe car can be legally paid 12$ per mile. 8. When awitness 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. 515The 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 thejudge. 91 The “other expenses” inaddition to travel and living expenses, contemplated by $3ofArticle 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