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                THE    AYTORNEY             GENERAL

                            OF    TEXAS

                           AUSTIN    aa.TEXAR




        Rondrable W, K, McClaln
        Criminal Dlstrldt Attorney
        Georgetown, Texas
        Dear Sir:            Opinion No.~O-2949
                             Re: Does the State have the right-
                                  under the law to pay out of county
                                  wftnesses in the trial'of an of-
                                  fense as defined by Article 1157
                                  of the Penal code?
               Your letter of recent date Pequestlng our opftilonupoK
        the above stated questlon has been~recelved, For ftictualLick
        ground of your request we quote the following portlons of your
        letter;
              "The constable of this County was Indicted by
           the Grand Jury for an offense as defined by
           Article 1157 of the Penal Code, o a D
               "In order for the State to successfully
            prosecute this case It wfll be tiecetisarg
                                                     td sum-
            mons witnesses outside of Williamson County,
                              "9UESTION
               "Does the State have the right, under the
            law, to pay out of county witnesses In the trial
            of the above offense?'
              Article 1157 of the Penal Code reads:
              "Any sheriff, deputy sheriff; constable,
           deputy, const&le,~Texas Ranger, citg.marshfill,
           chief of pollcem8n,,or any &her officer having
           under his arrest or fn hla custodg~ang person
           as a prisoner who shall torture, torment or pun-
           ish such peeson by Inflicting upon him any phgsl-
           tialOP mental pain for the purpose.of making
           br attemptlng to make'such person confess to
           any knowledge of the commission of an offense
           against the laws of this State, shall be fined
           not less than $l,OO nor more th&n $1,000 oi+
           be imprisoned In jail not to exceed one gear,
Honorable W. K. McClaln, page 2         O-2949


    'orboth such fine and Imprisonment, and in
    aadltlon thereto the jury may state In Its
    verdict that the defendant should never there-
    after be allowed to hold any office of profit
    or trust under the laws of this State, or any
    subdivision thereof, nor any city or town
    thereof. Should the jury SO state in Its
    verdict, the court trying said case shall ren-
    der judgment In accordance with'said verdict
    and t'hereafterthe defendant shall forever be
    barred from holding any such office."
       Article 47 of the Penal Code reads:
      "An offense'ls an act oromission forbladen~
   by positive law, and to which is annexed, on con-
   vlotlon, any punlshment prescribed In this Code.
   An offense which may -- not must -- be punlshable
   by death orbg confinement In the penltentlar~y
   Is a felony; every other offense Is a misdemeanor.
   Felonies are elther capital or not capital.' An
   offense for which the highest penalty Is death
   Is a capital felony. Offenses are divided Into
   felonies and misdemeanors."
       It Is clear from readlng Articles 47 and'1157 of'the
Penal Code;supra, that the offense deflned,by said.Artlcle
1157, suma, is a-misdemeanor. Furthermore; the caption of
Senate-.Blll:No.8, Chapter 129 of the Acts of 2 23; 38th
Legislature, page 269 (Article 1157, Penal-'Code
                                               7 provides
that a violation of said article shall be a misdimeanor.
                                                       i ,
       Article 5, Section 8, of the Constitution of Texas,
which fixes the orlglnal jurisdiction of cases lnvolvl'ng
official misconduct in the District Court, reads ln part:
       "The~Distrlct Court shall have original
    jurlsalctlon in all criminal cases of the'grade
    of a felony; s . . of all mlsdeme;nors lnvolv-
    lng official misconduct; 0 0 0 .
       The Court.of Criminal A peals~of Texas Inthe case'of
Simpson v. State, 137 S.W. (2dP 1035, held -~
                                           thatviolations of
Article 1157 of the Penal Code,Constltute "officla~~mlsconduct",
and that such violations come within the exclusive original jur-
isdiction of the District Court.
       Article 1036, Code of Crlmlnal Procedure, authorizes
and provides for compensation of any witness who may have
been recognized, subpoenaed, attached and given bond for his
Honorable W. R, McCZain, page 3         O-2949


appearance before any court OP before any Grand Jury, out of
the county of hLs residence to testify in a felony case, and
who appears in Compliance with the obligations of such recog-,
nizance or bond; thls'statute fur,therprovides wftness fees to
be allowed only to such witnesses as may have been summoned on
the sworn written application of the Stat,e'sattorney OP th8
defendant or his attorney as provided in APtlCl8 463; Code of
Criminal Procedure, which sworn application must be made at
the~tlme of the-procuring of the subpoena, attachment for, or
recognfzance of, the witness.
       Article 1036, Code of Criminal Procedure~supra, ap-
plies only to out of'county witnesses in felony cases before
the District Courts and has no applfcation as to witnesses in
misdemeanor cases in the District Courts.
       After a thorough search of the Statutes, we are unable
to ffnd any authority for the State compensating witnesses
in misdemeanor cases of the character with which we are here
coneemed o
       Trusting that the foregoing disposes of your inquiry,
we remain
                            Yours very truly
                       ATTORNEY GENERAL OF TEXAS

                            By s/D, Burle Davlss
                                 D, Burl8 Daviss
                                 Assfstant



APPROVED JAN 4,~1941
  s/Gerald C, Mann
ATTORNEY GENERAL OF TEXaS
Approved Opinion Committee By s/BWB Chairman
