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THE AYTORNEY GENERAL OF TEXAS
AUSTIN aa. **TEXAR**

Rondrable W, K, McClaln CriminalDlstrldt Attorney Georgetown, Texas
Dear Sir: OpinionNo.~O-2949 Re: Does the State have the rightunder the law to pay out of county wftnesses in the trial'of an offense as defined by Article 1157 of the Penal code?
Your letter of recent date Pequestlng our opftilon upoK the above statedquestlon has been~recelved, For ftictual Lick ground of your request we quote the followingportlons of your letter;"The constable of this Countywas Indictedby 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 summons witnesses outside of Williamson County, "9UESTION
"Does the State have the right, under the law, to pay out of countywitnesses 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,,orany &her officer having under his arrest or fn hla custodg~angperson as a prisonerwho shall torture, torment or punish such peeson by Inflictingupon him any phgsltialOP mental pain for the purpose.ofmaking 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,OOnor more th&n $1,000 oi+ be imprisoned In jailnot to exceed one gear,Honorable W. K. McClaln, page 2 O-2949

'or both such fine and Imprisonment,and in aadltlon thereto the jurymay state In Its verdict that the defendant shouldnever thereafter be allowed to hold any office of profit or trust under the laws of this State, or any subdivisionthereof,nor any city or town thereof. Should the jury SO state in Its verdict, the court trying said case shallrender judgment In accordancewith'said verdict and t'hereafter

the defendant shall foreverbe barred from holding any such office." Article 47 of the Penal Code reads:
"An offense'lsan act oromission forbladen~ by positive law, and to which is annexed, on convlotlon, any punlshmentprescribed In this Code. An offensewhich 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 highestpenalty 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 offensedeflned,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 (Article1157, Penal-'Code 7 provides that a violation of said article shallbe a misdimeanor. i , Article 5, Section 8, of the Constitution of Texas, which fixes the orlglnal jurisdictionof cases lnvolvl'ng official misconduct in theDistrict Court, reads ln part:

"The~DistrlctCourt shall have original jurlsalctlon in all criminal cases of the'grade of a felony; s . .of all mlsdeme;nors lnvolvlng officialmisconduct; 0 0 0

. The Court.of CriminalA peals~of Texas Inthe case'of Simpson v. State, 137 S.W. (2d P -~ 1035, held thatviolations of Article 1157 of the Penal Code,Constltute "officla~~mlsconduct", and that suchviolations comewithin the exclusive original jurisdiction of theDistrict 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 hisHonorableW. 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 Compliancewith the obligations of such recog-, nizance or bond; thls'statute fur,ther provides wftness fees to be allowed only to suchwitnesses as may havebeen summonedon the swornwritten application of the Stat,e's attorney OP th8 defendant or his attorney as provided inAPtlCl8 463; Code of Criminal Procedure,which sworn applicationmust 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, applies only to out of'countywitnesses in felony cases before theDistrict Courts and has no applfcation as to witnesses in misdemeanor cases in theDistrict Courts.

After a thorough search of the Statutes,we are unable to ffnd any authority for the State compensatingwitnesses in misdemeanor cases of the characterwith which we are here coneemed o

Trusting that the foregoingdisposes of your inquiry, we remain
Yours very truly ATTORNEY GENERAL OF TEXAS

By s/D, BurleDavlss D, Burl8 Daviss Assfstant

APPROVED JAN 4,~

1941 s/Gerald C, Mann ATTORNEY GENERAL OF TEXaS Approved Opinion CommitteeBy s/BWB Chairman