## THE ATTORNEY GENERAL OF TEXAS

January 9, 1968

Hon. Robert S. Calvert OpinionNo. M-185 Comptroller of PublicAccounts Capitol Building Re: Whethermileage Austin, Texas ment and $10.00
._ - reimburse-

-. per diem,

Dear Mr. Calvert: as provided InArticle 35.27, Vernon's Code of Criminal Procedure, is payable to a witness for ,attending the same court under subpoena in four separate cases on the sameday, so that the witness would collect four mileages and $40iO0.

In your recent opinion request to this office you present the question as to whether or not a witness is entitled to a fee andmileage in each casewhen subpoenaed to appear before the same court on the same day in more than one case. Pertinent sections ofArticle 35.27,Vernon's Code of Criminal Procedure, read in part as follows:

"(1) Any witness who has been subpoenaed, or has been attached and given bond for his appearancebefore any court, or before any grand jury, out of the county of his residence, to testify in a case regardless of dispositionof said case, and who appears in compliancewith the oblications of such subooenaor bond. shall be allowed seven ce;ts per mile going to and returning from the court,.qo.grand Jury,by the nearest practical conveyante,and ten dollars per day for each day he may necessarilybe absent from home as a witness in such case.

“(2) "(3) The witness shallmake an affidavit stating the number ofmiles he will have traveledgoing to and returning from the court, by the nearestpractical conveyance, -882-Hon. Robert S. Calvert,page 2, (M-185)

and the number of days he will have been necessarilyabsent in going to and returnxng from the place of trial;

. . . W (Emphasisadded) Construing these sections together, it is our opinion that the Legislature intended to allow such a witness to charge only for the necessarymileage going to and returning from the locationwhere court is being held and ten dollars per diem for each day he may necessarilybe absent fromhome irrespectiveof the number of cases forwhich he may have been subpoenaed. This is consistentwith previous rulings by this office that an attorney can collect only one fee for representing indigents for each day spent at court regardless of the number of indigents representedand regardless of the number of different courts in the county inwhich he may have to appear (SeeAttorney General's OpinionNo. C-713 (1966)).and that a District Judge holding court in a county outside of his district and hearing cases pending in two ormore District Courts in that county could collect compensation in addition to his salary of only $25.00 for each day in court rather than $25.00 a day additional for each court in which he appeared. (SeeAttorney General's OpinionNo. C-339 (1964)).
SUMMARY Where a witness attends the same court under subpoena in four separate cases on the same day, Article 35.27,Vernon's Code of Criminal Procedure, provides only for payment ofmileage going to and returning from "the court" and per diem for each day he may necessarilybe absent fromhome irrespective of the number of cases f rxhich he attends "the court." P/

Preparedby Monroe Clayton, Assistant Attorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips,Chairman Kerns Taylor, Co-Chairman

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## 883 -,.

Hon. Robert S. Calvert, page 3, (M-185)

Douglas Chilton Dunklin Sullivan BillAllen John Reeves STAFF LEGALASSISTANT A.J. Carubbi,Jr.