. - 

THE AYTORNEY GENERAL 

OF TEXAS 

AUSTIN aa. TEXAR 

Rondrable W, K, McClaln 

Criminal Dlstrldt Attorney 

Georgetown, Texas 

Dear Sir: Opinion No.~ 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 stated questlon has been~ recelved, For ftictual Lick 

ground of your request we quote the following portlons of your 

letter; 

"The constable of this County was Indicted by 

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 county witnesses 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,,or any &her officer having 

under his arrest or fn hla custodg~ang person 

as a prisoner who shall torture, torment or punish such peeson by Inflicting upon him any phgsltial OP mental pain for the purpose.of making 

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,OO nor more th&n $1,000 oi+ 

be imprisoned In jail not to exceed one gear, 
Honorable W. K. McClaln, page 2 O-2949 

'or both such fine and Imprisonment, and in 

aadltlon thereto the jury may state In Its 

verdict that the defendant should never thereafter be allowed to hold any office of profit 

or trust under the laws of this State, or any 

subdivision thereof, nor any city or town 

thereof. Should the jury SO state in Its 

verdict, the court trying said case shall render judgment In accordance with'said verdict 

and t'hereafter the defendant shall forever be 

barred from holding any such office." 

Article 47 of the Penal Code reads: 

"An offense'ls an act oromission forbladen~ 

by positive law, and to which is annexed, on convlotlon, any punlshment prescribed In this Code. 

An offense which 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 highest penalty 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 offense deflned,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 (Article 1157, Penal-'Code 7 provides 

that a violation of said article shall be a misdimeanor. i , 

Article 5, Section 8, of the Constitution of Texas, 

which fixes the orlglnal jurisdiction of cases lnvolvl'ng 

official misconduct in the District Court, reads ln part: 

"The~Distrlct Court shall have original 

jurlsalctlon in all criminal cases of the'grade 

of a felony; s . . of all mlsdeme;nors lnvolvlng official misconduct; 0 0 0 . 

The Court.of Criminal A 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 such violations come within the exclusive original jurisdiction of the District 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 his 
Honorable W. 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 Compliance with the obligations of such recog-, 

nizance or bond; thls'statute fur,ther provides wftness fees to 

be allowed only to such witnesses as may have been summoned on 

the sworn written application of the Stat,e's attorney OP th8 

defendant or his attorney as provided in APtlCl8 463; Code of 

Criminal Procedure, which sworn application must 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'county witnesses in felony cases before 

the District Courts and has no applfcation as to witnesses in 

misdemeanor cases in the District Courts. 

After a thorough search of the Statutes, we are unable 

to ffnd any authority for the State compensating witnesses 

in misdemeanor cases of the character with which we are here 

cone emed o 

Trusting that the foregoing disposes of your inquiry, 

we remain 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/D, Burle Davlss 

D, Burl8 Daviss 

Assfstant 

APPROVED JAN 4,~ 1941 

s/Gerald C, Mann 

ATTORNEY GENERAL OF TEXaS 

Approved Opinion Committee By s/BWB Chairman