May 3, 1965

Hon. Henry Wade OpinionNo. C-430 DistrictAttorney Dallas County1 Re: Necessityof 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 requestingan opinion of this office reads In part as follows:

"We are in receipt of the followingquestions 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 defendantto the suit, Is it necessaryto 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 contemptpenaltiesas 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 additionto the $1.00 submittedto 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,providesaa follows:
**“Witnesses** shall be alloweda fee of one dollar for each day they may be in attendance

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on the court, and six cents for everymile they have to travel In going to and returningtherefrom, which shall be paid on the certificateof the clerk, by the party summoning them; which certificateshall be given on the affidavitof 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 Procedureprovides 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 contemptof court, and an attachmentmay issue against the body of such witness to compel the attendance of such witness;but no such fine shall be imposed, nor shall such attachmentissue in a civil suit until it shall be shown to the court, by affidavitof 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-colonin the last sentenceof Rule 179 does not apply to party defendants, as that portionprovides 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 defendantbefore the penalties Imposedby Rule 179 become operatlveIf said party has been duly summonedand failed to appear. The party defendant is not entitledto a witness fee; therefore,said party subjects himself to contemptof court or attachmentproceedings 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 negativeas a party defendant is not entitled to witness fees. SUMMARY No payment or tender is necessaryof any sum as a witness fee to the party defendantbefore the

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penalties imposedby Rule 179, Texas Rules of Civil Procedure,become operative if said party has been duly summonedand failed to appear, as a party to a suit is not entitledto witness fees. Very truly yours, WAGGONER CARR AttorneyGeneral

Byk & : Gordon Houser Assistant GH:cg:mkh APPROVED: OPINION COMMITTEE W. V. Geppert,Chairman Malcolm Quick Carlo8Vela Terry Goodman Robert Norris APPROVEDFOR THE ATTORNEY GENERAL BY: Stanton Stone

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