                       May 3, 1965


Hon. Henry Wade                     Opinion No. C-430
District Attorney
Dallas County1                      Re: Necessity of 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 requesting an opinion of this office reads
In part as follows:
         "We are in receipt of the following questions
    from the Honorable Moore Lynn, County Auditor of
    Dallas County, Texas, which we submit to your of-
    fice with the accompanyingbrief and respecttilly
    request your opinion:
           "1. In subpoenainga witness in a civil suit,
               who is in fact the party defendant to the
               suit, Is it necessary to tender said wit-
               ness the sum of $1.00 as a witness fee in
               order to later be in a position to subject
               said witness to the contempt penalties as
               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
               addition to the $1.00 submitted to the
               witness, to further submit the sum of
               64 per mile for travel expenses in going
               to and from the court?"
           Article 3708, Vernon's Civil Statutes, provides aa
follows:
         “Witnesses shall be allowed a fee of
    one dollar for each day they may be in attendance

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Hon. Henry Wade, page 2 (C-430)


    on the court, and six cents for every mile they
    have to travel In going to and returning there-
    from, which shall be paid on the certificateof
    the clerk, by the party summoning them; which
    certificateshall 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.'
          Rule 179 of the Texas Rules of Civil Procedure provides
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 contempt of
    court, and an attachmentmay issue against the
    body of such witness to compel the attendance
    of such witness; but no such fine shall be im-
    posed, nor shall such attachment issue in a
    civil suit until it shall be shown to the court,
    by affidavit of 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 s.w.583 (Tex,Civ;App.
1902); Altg It    Callaghan, 144 S W 31166 (Tex.Civ.App.1913);
Villanueva "v.Rgdrigues, 300 S.W.21'
                                  d 668
                                    '. (Tex.Clv.App.,error ref.
n.r.e. 1990 ,
          The "paid or tendered" clause after the semi-colon in
the last sentence of Rule 179 does not apply to party defendants,
as that portion provides that "all lawful fees" must be paid or
tendered. It is our opinion that no payment or tender is neces-
sary of any sum as a witness fee to the party defendant before
the penalties Imposed by Rule 179 become operatlve If said party
has been duly summoned and failed to appear. The party defendant
is not entitled to a witness fee; therefore, said party subjects
himself to contempt of court or attachment proceedingsunder 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 negative as a party defend-
ant is not entitled to witness fees.
                       SUMMARY
          No payment or tender is necessary of any sum
     as a witness fee to the party defendant before the

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Hon. Henry Wade, page 3 (C-430)


    penalties imposed by Rule 179, Texas Rules of Civil
    Procedure, become operative if said party has been
    duly summoned and failed to appear, as a party to a
    suit is not entitled to witness fees.
                           Very truly yours,
                           WAGGONER CARR
                           Attorney General


                           Byk
                             :             &
                                  Gordon Houser
                                  Assistant
GH:cg:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Malcolm Quick
Carlo8 Vela
Terry Goodman
Robert Norris
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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