HonorableWm. Hunter Opinion NO. c-720

DistrictAttorney Dalhart,Texas Re: Whether the countiesbear the expense of witness mileage and per diem under the UniformAct to
secure the attendanceof witnesses from without the State In criminal Dear Mr. Hunter: proceedings,

In your opinion requestyou ask the captioned question. Article 24.28,Vernonls Code of Criminal Procedure,is the UniformAct to Secure Attendanceof 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 commandingpersons within its borders to attend and testify in criminalprosecutlons,or grand jury Investigations commencedor about to commence,in this State, is a materialwitness in a prosecution pending in a court of record in this State, or in a grand jury lnvestigatlon which has commencedor 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 immediatecustodyand deliveredto an officer of this State to assure his attendancein this State. This certificateshall be presentedto
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 -3469-HonorableWm. Hunter, page 2 (C-720 )

for each mile by the ordinary traveled route to and from the court where the prosecutionis pending and five dollars for each day that he is required to travel and attend as a witness, A witnesswho has appeared in accordancewith 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 otherwiseordered 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 punishmentof 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 provisionas to who should pay out of county witnesses containedin Article 35.27,Vernonls Code of Criminal Procedure, which provides:

"(1)Any witness who has been subpoenaed, or has been attachedand given bond for his annearancebefore anv court.
or before any grand jury, out of 'the county of his residence,to testify in a case regardlessof dispositionof said case, and who appears in compliance with the I obligationsof such subpoenaor bond, shall be allowed seven cents per mile going to and returning from the court
or grand jury, by the nearestpractical 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 subpoenaedor has been attachedand .g;;;; bond for his appearancebefore any out of the county of his residence, to te;tify in a case, and who appears in compliance

with said subpoenaor with the obligationsof such bond, and the case in which he is a witness is reset for a later day in the same term of court, not -3470-, -

HonorableWm. Hunter, page 3 (C- 720)

exceeding four days, shall not be paid mileage for any additionaltrip to or from court he may make by reason of the resettingof 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 additionaldays he may be in attendance upon court by reason of the resetting of the case,
"Witnessesshall receive from the State, for attendancewon courts and nrand juries in counties other than that of Their Gesidenoe in obedienceto subpoenasissued under the provisionsof law seven cents per mile, going to and returningfrom the court or grand jury by the nearest practical conveyance,

and ten dollarsper day for each day they may necessarily be absent from home as a witness to be paid
as now providedby 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 advancedby the officers serving said subpoenas,as shown by the returns on said subpoenas; which certificates shall be approvedby the judge and recorded by the clerk in a well-boundbook kept for that purpose;provided,that when an indictment can be found from the evidence taken before an inquest or examiningtrial, no subpoenaor attachmentshall issue for a witnesswho resides out of the county in which the prosecutionis pending to appear before a grand jury. When the grand jury shall certify to the judge that sufficient evidence cannot be securedupon which to find an indictment, except upon testimony of non-resident

witnesses,the judge may have subpoenasissued as provided for by law to other counties for witnessesto testifybefore the grand jury, not to exceed one witness to any one fact, nor more than three witnessesto 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 -3471-HonorableWm. 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 compensationsuch witness is entitled to receive,

We are bolstered in this opinionby the fact that the 59th Legislature,in the GeneralApp;og;F;;gn Bill, appropriatedthe sum of Two Thousand Dollars for the payment of the expensesof witt?essds in felony cases or before a rand the provisionsof Article 48 a, 2 jury summonedunder 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 accordancewith the payment of other out of county witnesses as set forth in Article 35.27, Vernon'sCode of Criminal Procedure; however, the amount such witnesses are paid is In accordance with Article 24.28,Vernon'sCode 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 AssistantAttorney General

APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright

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