DAN MORALES 

ATTORNE\ GENERAL ’ 

QBffice of tfie I?lttornep @enera 

dbtate of Qexae 

April 7, 1995 

Honorable Smfronia Thompson 

Chaif 

Committee on Judicial Atihirs 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Dear Representative Thompson: 

Qpiion No. DM-342 

Re: Whether witness fees under 

section 22.01, Texas Civil Practice and 

Remedies Code, must be paid to a 

person who is subpoenaed to appear 

and give testimony at a location other 

than the courthouse (RQ-667) 

You have requested an opinion from this office construing section 22.001, Texas 

Civil Practice and Remedies Code. Section 22.001 was amended by House Bill 887 

during the seventy-third legislative session, to require that a flat fee of $10 be paid to 

witnesses who were subpoenaed to appear in court. Act of April 28, 1993, 73d Leg., 

RX, ch. 103, 1993 Tex. Sess. Law Serv. 192, 193. Pursuant to this amendment you ask 

whether witness fees under the section must be paid to a person who is subpoenaed to 

appear and give testimony at a location other than a courthouse. Section 22.001 provides: 

(a) Except as provided by Section 22.002r, a witness is entitled 

to 10 dollars for each day the witness attends court. This fee 

includes the entitlement for travel and the witness is not entitled to 

any reimbursement for mileage traveled. 

(b) The party who summons the witness shall pay that witness’s 

fee for one day, as provided by this section, at the time the subpoena 

is served on the witness. 

(c) The witness fee must be taxed in the bii of costs as other 

COStS. 

Civ. Prac. & Rem. Code $22.001 (footnote added). You suggest that the legislative 

intent of section 22.001 was to tacitly exclude payment of such fees to witnesses who 

were subpoenaed for deposition at a place other than the courthouse.. However, we 

%ction 22.022 prcvtrJca that “[a] witass who is xprcsa~tcd to tide 150 miles or less from B 

county in which a tit is pending or who may be found within that distanoz at the time of trial on the suit 

may be sulqmmd in the suit.” 
Honorable Senfronia Thompson - Page 2 (~~-342) 

believe that the word “court,” as used in this provision, does not have the narrow meaning 

of the courthouse but includes any evidentiary proceeding within the lawsuit. 

We begin our analysis by considering the scope of the term “attends court” and 

similar expressions in section 22.001 and its predecessors. An analysis of the history of 

the predecessor of section 22.001, V.T.C.S. article 3708, and its connection with the other 

articles that were moved into part II, section 9, of the Rules of Civil Procedure is 

instructive. Former V.T.C.S. articles 3404 to 3769 (repealed by Act of May 12, 1939, 

46th Leg., R.S., ch. 25, $ I, 1939 Tex. Gen. Laws 201, 201) addressed witnesses and 

evidence, as well as depositions. These provisions did not distinguish between trial and 

deposition testimony. Article 3708 addressed fees of witnesses and provided that 

[wlitnesses shall be allowed a fee of one dollar for each day they 

may be in attendance on the court, and six cents for every mile they 

may 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. 

We note that although this provision has been amended and rewritten, it has not been 

substantively changed. Such continuity suggests that the underlying purpose of this 

provision has not been altered. 

Further, rule 201 of the Texas Rules of Civil Procedure, which provides that “[a]ny 

person may be compelled to appear and give testimony by deposition* in a civil action” 

(footnote added), was originally derived in part from former article 3754 unchanged and 

originally provided in part: “Any person may be compelled to appear and depose in Ihe 

*According 10 Texas Jurisprudence, 

The tcnn “deposition” is sometimes used in a broad sense 10 describe any 

written statement verified by oath, but in its more appropriate snd technical 

sense, the meaning of the word is limited to the uanscribzd testimony of the 

witness given in the course of a judicial proceeding, in advance of trial or 

hearing, upon oral examination or in response to tinen interrogatories, where 

an oppoltunity is given for cross examination. 

31 TEX. Jva. 3~Discovery md Deposifions $49 (1994) (foolnote omitted); see 3 AM JUR. 2DAfldovif 8 1 

(1986) (distinction behveen aflidavit and deposition). 

On proof of service of a notice 10 take a depositioo, winen or oral, the clerk 

or any off~cer authorized to take depositions and any ceHXkd shorthand reporter 

must immediately issue and cause to be served on Ihe witness a subpoena 

directing the witness to appear before the off~iar at the time and place stated in 

fhc notice for the purpose of giving the witness’ deposition. 

3 1 Trx. Jua. 3~ Discovery and Depositions 5 65 (1994) (footnote omitted). 

p. 1821 
Honorable Senfionia Thompson - Page 3 (DM-342) 

same manner as witnesses may be compelled to appear and tes@ in court. .“a 

Tex. R. Cii. P. 201 historical note (emphasis added); see V.T.C.S. art. 3754 (repealed by 

Act ofMay 12, 1939,46th Leg., R.S., ch. 25, 5 1, 1939 Tex. Gen. Laws 201,201). This 

provision seems to indicate that witnesses compelled to appear for the purpose of being 

deposed were entitled to the same fee as those compelled to appear to test@ at the 

courthouse. Over the years rule 201 has been amended by the supreme court; the changes 

to the rule have not overruled the entitlement to witness fees. See Tex. R. Civ. P. 201 

historical note (Vernon 1976 & Supp. 1994). As stated above, former V.T.C.S. articles 

3704 to 3769 (repealed 1939) combined all provisions concerning witnesses and evidence 

with those addressing depositions, making no distinction between witnesses testifying 

during trial and those providing deposition testimony at locations other than the 

courthouse. Further, a deposition transcript may be read into evidence at trial, Tex. R. 

Civ. P. 207; see Tex. R. Civ. Evid. 801(e)(3), where, in most instances, the parties have 

reserved their evidentiary objections, see Tex. R. Civ. P. 204(4). We conclude that at any 

such proceeding, witnesses appearing pursuant to a subpoena are “attend[ing] court,” 

pursuant to Civ. Prac. & Rem. Code 3 22.001(a), and so are entitled to the payment of 

witness fees at the time of service. 

Similarly, an individual who is compelled to act in response to a subpoena for the 

production of records, in addition to appearance as a witness, is entitled to a witness fee at 

the time of service. A witness may not be fined for failure to attend court, nor shall 

attachment issue in a civil suit, until it is shown to the court, by affidavit of the 

subpoenaing party or the party’s agent or attorney, that all lawhrl fees have been paid or 

tendered to the witness. Tex. R. Civ. P. 179; Texus &Pacific Ry, v. Hall, 19 SW. 121, 

122 (Tex. 1892); Kie&r v. Miller, 560 S.W.2d 431, 432 (Tex. Civ. App.-Beaumont 

1977, writ ref d n.r.e.). 

Furthermore, the legislative history of section 22.001 indicates that the 

amendments to the section were made in an effort to 

simplify the computation of and slightly increase the fees a witness is 

entitled to under the Civil Practices [sic] and Remedies Code. This 

bill also extends the distance of privileged travel for a witness 

traveling to and from a proceeding from 25 miles to 150 [miles]. 

House Comm. on Judicial Affairs, Bill Analysis, H.B. 887, 73d Leg. (1993). When 

ascertaining legislative intent, words and phrases shall be read in context and construed 

according to rules of grammar and common usage. Linick v. Employers Mut. Casualfy 

Co., 822 S.W.2d 297 (Tex. App.--San Antonio 1991, no writ); Gov’t Code 5 311.011. 

Further, where language of the statute is unambiguous and its meaning is clear, effect is 

3Rules 201, 202, and 203 as originally adopted contained the previsions of ankles 3754, 3755, 

and 3756, unchanged. See Tex. R. Civ. P. 201 historical note; see o/so id. Rules 202-203 historical note 

(repealed 1971). 

p. 1822 
Honorable Senftonia Thompson - Page 4 (DM-342) 

given to the statute according to its terns. Mathews Const. Co. v. Jaqer Hous. Const. 

Co., 528 S.W.2d 323 (Tex. Cii. App.-Beaumont 1975, writ refd n.r.e.). Thus, we 

conclude that witness fees under section 22.001, Civil Practice and Remedies Code, must 

be paid to all persons who are subpoenaed to appear and give testimony, regardless of the 

location set in the subpoena. 

SUMMARY 

Witness fees under section 22.001, Texas Civil Practice and 

Remedies Code, must be paid to all persons who are subpoenaed to 

appear and give testimony, regardless of the location set in the 

subpoena. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH I. SHIRLEY 

Chair, Opinion Committee 

Prepared by Toya Cirica Cook 

Assistant Attorney General 

p. 1823