

NOS. 07-09-00301-CR, 07-09-0302-CR, 07-09-0303-CR,
07-09-0304-CR,
07-09-0305-CR, 07-09-0306-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

AUGUST
20, 2010
 

 
VIENGKHONE SIKALASINH, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 47TH DISTRICT COURT OF POTTER
COUNTY;
 
NOS. 58,210-A, 58,211-A, 58,212-A, 58,213-A, 58,216-A, 58,217-A;
 
HONORABLE HAL MINER, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
 
 
CONCURRING OPINION
 
The Court reaches the correct result
in this case, and I concur in the Court’s judgment.  I concur also in the Court’s discussion of
appellant’s issues one and two, regarding attorney’s fees.  With regard to appellant’s issue three
regarding witness fees, the Court correctly points out that, even before its
1999 repeal, subsection (a) of article 102.002(a) of the Code of Criminal
Procedure expressly excluded witness expenses paid under article 35.27 from its
provisions.  See Act of May 17, 1985, 69th Leg., R.S., ch.
269, § 1, 1985 Tex. Gen. Laws 1300, 1302, repealed
by Act of May 22, 1999, 76th Leg. R.S., ch. 580,
§ 11, 1999 Tex. Gen. Laws 3121, 3123.  
The Court thus correctly concludes that repeal of subsection (a) of
article 102.002 cannot have the effect of authorizing the assessment against
appellant of the cost of witness fees paid under article 35.27.  
It seems to me, however, that there
is a more fundamental problem with the State’s position that article 102.002
provides a statutory basis for imposition of non-resident witness expenses on
appellant.  In pertinent part, subsection
(c) of article 102.002, on which the State relies, states “a defendant is
liable on conviction for the fees provided by this article for witnesses . . .
.”  Tex. Code Crim. Proc.
Ann. art. 102.002(c) (Vernon 2006).  The Court’s opinion quotes the repealed
subsection (a) of article 102.002.  That
now-repealed subsection provided per diem and mileage reimbursement for
witnesses.  See Act of May 17, 1985, 69th Leg., R.S., ch.
269, § 1, 1985 Tex. Gen. Laws 1300, 1302, repealed
by Act of May 22, 1999, 76th Leg. R.S., ch. 580,
§ 11, 1999 Tex. Gen. Laws 3121, 3123. 
Since the repeal of its subsection (a), however, article 102.002 does
not provide fees for witnesses.  Under
the current provisions of article 102.002, as I read them, there are no “fees
provided by this article” for which a convicted defendant may be liable.  For that reason, I concur in the Court’s
judgment.
                                                                                                James
T. Campbell
                                                                                                            Justice
Quinn, C.J.,
joins in this concurring opinion.
 
Publish.  

