Honorable Wm. Hunter Opinion NO. c-720 

District Attorney 

Dalhart, Texas Re: Whether the counties bear 

the expense of witness 

mileage and per diem 

under the Uniform Act to 

secure the attendance of 

witnesses from without 

the State In criminal 

Dear Mr. Hunter: proceedings, 

In your opinion request you ask the captioned 

question. Article 24.28, Vernonls Code of Criminal 

Procedure, is the Uniform Act to Secure Attendance of 

Witnesses from without the State. Section 4 thereof 

provides, in part: 

"Sec. 4. If a person in any State, 

which by its laws has made provision for 

commanding persons within its borders 

to attend and testify in criminal prosecutlons, or grand jury Investigations 

commenced or about to commence, in this 

State, is a material witness in a prosecution pending in a court of record in 

this State, or in a grand jury lnvestigatlon which has commenced or is about 

to commence, a judge of such court may 

issue a certificate under the seal of 

the court stating these facts and specifying the number of days the witness 

will be required, Said certificate 

may include a recommendation that the witness be taken Into immediate custody and 

delivered to an officer of this State 

to assure his attendance in this State. 

This certificate shall be presented to 

a judge of a court of record in the 

county in which the witness is found. 

"If the witness Is summoned to attend and testify in this State he shall 

be tendered the sum of ten cents a mile 

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Honorable Wm. Hunter, page 2 (C-720 ) 

for each mile by the ordinary traveled 

route to and from the court where the 

prosecution is pending and five dollars 

for each day that he is required to travel 

and attend as a witness, A witness who 

has appeared in accordance with the provisions of the summons shall not be required to remain within this State a 

longer period of time than the period 

mentioned in the certificate, unless 

otherwise ordered by the court. If 

such witness, after coming into this 

State, fails without good cause to attend and testify as directed in the 

summons, he shall be punished in the 

manner provided for the punishment of any 

witness who disobeys a summons issued 

from a court of record in this State." 

As you point out, no provision is made in this 

Article as to who should pay such witnesses, There Is, 

however, a provision as to who should pay out of county 

witnesses contained in Article 35.27, Vernonls Code of 

Criminal Procedure, which provides: 

"(1) Any witness who has been subpoenaed, or has been attached and given 

bond for his annearance before anv court. 

or before any grand jury, out of 'the county 

of his residence, to testify in a case 

regardless of disposition of said case, 

and who appears in compliance with the 

I obligations of such subpoena or bond, 

shall be allowed seven cents per mile 

going to and returning from the court 

or grand jury, by the nearest practical 

conveyance, and ten dollars per day for 

each day he may necessarily be absent 

from home as a w’rtness in such case, 

"Provided, any witness who has been 

subpoenaed or has been attached and 

.g;;;; bond for his appearance before any 

out of the county of his residence, 

to te;tify in a case, and who appears in 

compliance with said subpoena or with the 

obligations of such bond, and the case 

in which he is a witness is reset for a 

later day in the same term of court, not 

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, - 

Honorable Wm. Hunter, page 3 (C- 720) 

exceeding four days, shall not be paid 

mileage for any additional trip to or 

from court he may make by reason of the 

resetting of said case unless permission 

first had and obtained from the trial 

judge to make said trip, but shall be 

entitled to receive his per diem for the 

additional days he may be in attendance 

upon court by reason of the resetting 

of the case, 

"Witnesses shall receive from the State, 

for attendance won courts and nrand juries 

in counties other than that of Their Gesidenoe in obedience to subpoenas issued 

under the provisions of law seven cents 

per mile, going to and returning from the 

court or grand jury by the nearest practical conveyance, and ten dollars per 

day for each day they may necessarily be 

absent from home as a witness to be paid 

as now provided by law; and the foreman 

of the grand jury, or the clerk of the 

court shall issue such witness certificates therefor, after deducting therefrom 

the amounts advanced by the officers serving said subpoenas, as shown by the returns on said subpoenas; which certificates 

shall be approved by the judge and recorded 

by the clerk in a well-bound book kept for 

that purpose; provided, that when an indictment can be found from the evidence taken 

before an inquest or examining trial, no 

subpoena or attachment shall issue for a 

witness who resides out of the county in 

which the prosecution is pending to appear 

before a grand jury. When the grand jury 

shall certify to the judge that sufficient 

evidence cannot be secured upon which to 

find an indictment, except upon testimony 

of non-resident witnesses, the judge may 

have subpoenas issued as provided for by 

law to other counties for witnesses to 

testify before the grand jury, not to exceed one witness to any one fact, nor more 

than three witnesses to any one case pending before the grand jury,' 

It Is the opinion of this office that the procedure for payment of the out of state witness Is the 

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Honorable Wm. Hunter, page 4 (C-720 ) 

same as for any other out of county witness. Article 

24.28, Sec. 4, Vernon's Code of Criminal Procedure, 

merely changes the amount of compensation such witness is entitled to receive, 

We are bolstered in this opinion by the fact 

that the 59th Legislature, in the General App;og;F;;gn 

Bill, appropriated the sum of Two Thousand 

Dollars for the payment of the expenses of witt?essds 

in felony cases or before a rand 

the provisions of Article 48 2 a, 

jury summoned under 

old Code of Criminal 

Procedure, now Article 24.28, Vernonas Code of Criminal Procedure, to attend and testify in this State. 

(59th Legislature, Regular Session (1965), Chapter 720, 

H. B. No, 12, page 1691.) 

SUMMARY 

Out of state witnesses subpoenaed 

to apnear in Texas courts are paid in 

accordance with the payment of other 

out of county witnesses as set forth 

in Article 35.27, Vernon's Code of 

Criminal Procedure; however, the amount 

such witnesses are paid is In accordance 

with Article 24.28, Vernon's Code of Criminal Procedure. 

Yours very truly, 

WAGGONER CARR 

AttorneyJjeneral of Texas 

By: 

REO/er 

APPROVED: 

OPINION COMMITTEE 

W. V$ Geppert, Chairman 

Sam Kelley 

Bob Towery 

Charles Swanner 

James McCoy 

Assistant Attorney General 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

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