May 3, 1965 

Hon. Henry Wade Opinion No. C-430 

District Attorney 

Dallas County1 Re: Necessity of making a 

Dallas, Texas tender of the witness 

fee and six cents per 

mile for travel expenses 

Dear Mr. Wade: under facts submitted. 

Your letter requesting an opinion of this office reads 

In part as follows: 

"We are in receipt of the following questions 

from the Honorable Moore Lynn, County Auditor of 

Dallas County, Texas, which we submit to your office with the accompanying brief and respecttilly 

request your opinion: 

"1 . In subpoenaing a witness in a civil suit, 

who is in fact the party defendant to the 

suit, Is it necessary to tender said witness the sum of $1.00 as a witness fee in 

order to later be in a position to subject 

said witness to the contempt penalties as 

set out in Rule 179 of the Texas Rules of 

Civil Procedure? 

"2. Alternatively, if the answer to question 

No. 1 is 'Yes', then is it necessary In 

addition to the $1.00 submitted to the 

witness, to further submit the sum of 

64 per mile for travel 

to and from the court?" 

expenses in going 

Article 3708, Vernon's Civil Statutes, provides aa 

follows: 

“Witnesses shall be allowed a fee of 

one dollar for each day they may be in attendance 

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Hon. Henry Wade, page 2 (C-430) 

on the court, and six cents for every mile they 

have to travel In going to and returning therefrom, which shall be paid on the certificate of 

the clerk, by the party summoning them; which 

certificate shall be given on the affidavit of 

the witness before the clerk. Such compensation 

and mileage of witnesses shall be taxed In the 

bill of costs as other costs.' 

Rule 179 of the Texas Rules of Civil Procedure provides 

in part as follows: 

9, 

. . .If any witness, after being duly 

summoned, shall fail to attend, such witness 

may be fined by the court as for contempt of 

court, and an attachment may issue against the 

body of such witness to compel the attendance 

of such witness; but no such fine shall be imposed, nor shall such attachment issue in a 

civil suit until it shall be shown to the court, 

by affidavit of the party, his agent or attorney, 

that all lawful fees have been paid or tendered 

to such witness. 

It is well settled In Texas that a party to a suit is 

not entitled to witness fees. Cause v. Edminston; 35 Tex. 69 

(1871); Texas Midland R. Co. v. Parker, QQ 

1902); Altg It Callaghan, 144 S W 

Villanueva "v. Rgdrigues, 

3 

300 S.W.21' '. 

n.r.e. 1990 , 

_ -_ 

s.w.583 (Tex,Civ;App. 

1166 (Tex.Civ.App. 1913); 

d 668 (Tex.Clv.App., error ref. 

The "paid or tendered" clause after the semi-colon in 

the last sentence of Rule 179 does not apply to party defendants, 

as that portion provides that "all lawful fees" must be paid or 

tendered. It is our opinion that no payment or tender is necessary of any sum as a witness fee to the party defendant before 

the penalties Imposed by Rule 179 become operatlve If said party 

has been duly summoned and failed to appear. The party defendant 

is not entitled to a witness fee; therefore, said party subjects 

himself to contempt of court or attachment proceedings under Rule 

179 if he fails to appear after being duly summoned. 

As the answer to your first question Is "no," your 

second question is also answered in the negative as a party defendant is not entitled to witness fees. 

SUMMARY 

No payment or tender is necessary of any sum 

as a witness fee to the party defendant before the 

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Hon. Henry Wade, page 3 (C-430) 

penalties imposed by Rule 179, Texas Rules of Civil 

Procedure, become operative if said party has been 

duly summoned and failed to appear, as a party to a 

suit is not entitled to witness fees. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

Byk : & 

Gordon Houser 

Assistant 

GH:cg:mkh 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Malcolm Quick 

Carlo8 Vela 

Terry Goodman 

Robert Norris 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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