                THE        AITORNEY                     GENE
                                 OFTEXAS



                                   September      20,   197.3
                                                            &p&J&z%a-r3-3v
The Honorable Robert S. Calvert                          Opinion   No.   H-   107
Comptro:Ller of Public Accounts
State Finance Building                                   Re:    Various questions regarding
Austin, Texas                                                   House Bill 844, 63rd Legis-
                                                                ture, .L973, amending Articles
                                                                24.28 and 35.27,   Texas Code
Dear Mr.       Calvert:                                         of Criminal Procedure

       You have requested our opinion on a number of problems    relating to
provisions  of House Bill No. 844, Acts of the 63rd Legislature  (1973),
amending Articles   24. 28 and 35.27 of the Texas Code of Criminal Procedure.

          Article   24. 28, T. C. C. P., is generally known as the “Uniform A,ct to
Secure      the A~ttendance of Witnes,ses frdti Without the State’.‘. and:,Article ,35; 27
relates     t,o “witness fees. ”

        The general effect of these amendments       is to broaden the authority of
local and state officials in arranging for the testimony of out-of-state         wit-
nessess   and in authorizing   compensation    of witnesses   who reside outside the
county in which the prosecution     is pending.    Paragraph    (d) of $ 3 of Article
24.28,   as amended,    changes from an allowance of lO$ per mile and $5 per
day to adopt, by reference,     the provisions   for “compensation”      and “additional
compensation”    contained in Article   35. 27 of the Code, as amended.

       Section .Lof amended Article  35.27 renders eligible for such “compen-
sation” a witness who has appeared in response to a subpoena or a written
request of the prosecuting  attorney or the judge. Prior to the amendment,
only those witnesses   who appeared under subpoena were eligible for witness
fees or mileage.

          Your first   three questions   are as follows:




                                         p. 506
The Honorable         Robert   S.   Calvert,        page 2   (H-107)




            I”1
                  .     Cou:ld the compensation      or expenses allowed
                        under Article    35.27 C. C. P. be lega,Lly paid
                        to an out-of-State    witness who is requested
                        in writing by the prosecuting     attorney or the
                        court to appear as a witness in this State?

            “2.         Could the compensation     or expenses allowed
                        under Article  35.27 C. C. P. be legally paid
                        to an in-state witness who is requested in
                        writing by the prosecuting   attorney or the
                        court to appear as a witness?

            “3.         Must a witness be compelled   to appear before
                        the court under a subpoena,  summons,    or
                        attachment before a witness would ,legally be
                        entitled to compensation or expenses? ”

        We answer your first question in the affirmative because under § 1 of
Article  35. 27, as amended,  a request in writing by the prosecuting  attorney
or the court is on a parity with a subpoena or other legal compulsion.

       Our answer to your second question is the same.    Article 35.27
expressly  applies to witnesses  who reside “outside the state  or the county
in which the prosecution  is pending. ”

       Our answers to questions            no.       1 and 2 above     compel   a negative   answer
to your third question.

      In connection       with your first           three questions     you state:

                   “The above three (3) questions are asked
            pursuant to the provisions   of Attorney General
            Opinions Nos. WW-288,0-4251,0,-73,27,     V-24, C-579
            and Article  1, Section 10 of the Constitution,  and
            Article III, Section 51 of the Constitution. ”




                                               p.   507:~:
The Honorable         Robert   S.   Calvert.        page 3    (H-107)




       The Attorney General Opinions that you cite [with the exception of
Opinion No. V-24 (1947)] represent interpretations   of the law made prior
to the recent amendments.     We believe that the amendments   render those
opinions ineffective and that they are superceded  by the answers we have
given to your questions.

      Article     1 $10 of the Texas           Constitution    provides   in part:

                    “In all criminal prosecution   the accused . . .
         shal:l have compu:lsory process for obtaining witnesses
         in his favor,   except that when the witness resides out
         of the State and the offense charged is a violation of
         any of the anti-trust   laws of this State, the defendant
         and the State shall have the right to produce and have
         the evidence admitted by deposition,      under such rules
         and laws as the Legislature     may hereafter provide.    . . . ”

        We do not believe that this constitutional  provision impylies any pro-
hibition against compelling   out-of-state  witnesses   to appear as outlined in
Article  24.28.

       Section 5:l of Article   3 of the Texas Constitution prohibits gratuities
of public moneys to individuals.       Attorney General Opinion No. WW-288
holds that, when a witness was under no “legal obligation” to appear in a
criminal proceeding,      the payment of his expenses constituted a “gratuity. ”
We believe that witnesses      requested’by    the prosecution or the judge to
appear under the provisions       of Article  24. 28 are under a “legal obligation”
to appear.    If he refuses he can be effectively     subpoenaed.  Thus payment
of his expenses is not a gratuity and is not violative of $ 51 of Article     3 of
the Texas Constitution.

      Your fourth question           is as follows:

                “4.     Is the compensation   provided for in Article
                        35.27 C.C.P.,    Section 2, a per diem of
                        $25.00  per day or a reimbursement    for actual
                        expenses not to exceed $25.00    per day? ”




                                               p.    508
The Honorable      Robert   S.   Calvert,        page 4   (H-107)




       In our opinion $2 of Article 35.27 authorizes  the re-imbursement
of the witness for his actual expenses not to exceed $25 per day plus mile-
age.   This conc’lusion is based upon the provisions  which require the wit-
ness to “make an affidavit setting out the travel and daily living expenses
. . * ” and upon the provision that such compensation   “shall not exceed
$25 per day for living expenses and twelve cents per mile fo.r travel by personal
automobi,le. ”

      Your fifth question        is as fo:llows:

             “5.     Is the travel by personal automobile at
                     twelve cents per mile a Legislatively
                     determined amount for each mile traveled?      ”

        We believe that 12$ per mile was intended by the Legislature       to
establish a fixed charge per mile,   similar to the reimbursement’:       of,
state emp:loyees for personal automob&       trave,l, and that the witness does
not have to prove an actual expense of this amount per mile traveled in
order to be entitled to reimbursement     at this rate.   Accordingly,    your
fifth question is answered affirmatively.

      Your   sixth question      is as follows:

             “6.     If a witness traveled by bus, train, or air,
                     what reimbursement    cou,ld be allowed to
                     said witness for said travel? ”

       Section :Lof Article    35. 27 provides that the non-resident  witness
“shall be compensated      by the state for the reasonable   and necessary    travel
and daily living expenses he incurs by reason of his attendance as a witness
at such proceedings.    ” Section 2 covers per diemand automobile allowances.
Section 3 contemplates      that a witness will be al.lowed “compensation    for
travel and living expenses”       and “such other expenses as may be required
by the laws of this State or the state from which the attendance of the witness
is sought. ” When these provisions        are read together it is apparent that the
Legis,lature,  in language which is c:lear, although somewhat broad, has made
provision for the re-imbursement         of actual expenses incurred when the wit-
ness travels by bus, train, or air.




                                            p.    509
The Honorable         Robert   S. .Calvert,        page 5   (H-107)




      Your      seventh   question    is as foliows:

                “7.     Is the State authorized to pay a witness compen-
                        sation or expenses to an out-of-State   witness
                        summoned to testify in any misdemeanor       case
                        or only in those cases for which a jai11 sentence
                        may be the punishment?     (In this connection see
                        Article  24.16 C. C. P.) ”

      Article     24.16   provides    as follows:

                        “Where,      in misdemeanor       cases in which confine-
                ment in jail is a permissible          punishment,      or in felony
                cases,    a witness resides out of the county in which the
                prosecution     is pending, the State or the defendant shall
                be entitled,     either in term-time       or in vacation,     to a
                subpoena to compel the attendance of such witness on
                app:lication to the proper clerk or magistrate.              . . .
                Witnesses        in such tiisdemeanor            ‘cases    shall
                be’,conipensated          in: thesame       manner       as in      ’
                felony     iases.‘.   . ., . ”    [T,his. provi’sion      wan iater-
                preted      in A tt o.rney General        Opinion C-S79 (1966) to
                authorize payment of witnesses            subpoena&in      misdemeanor
                cases in which confinement in jail is a permissible                punish-
                ment. ]

      Section :4(a);      of Articyle 24. 28, as amended by House Bill 844;             applies
to any “prosecution        pending in a court of record in this State. ”

      Article   35. 27, as amended,   applies to any witness “in a criminal
proceeding    who resides  outside the State or the county in which the prose-
cution is pending. . . . ”

       In the few instances  wherein a misdemeanor     prosecution  may be
pending in a “court of record” in which confinement in jail is not a permis-
sible punishment,    we believe that an out-of-state  witness can be subpoenad
and paid under the provisions    of Articles  24.28 and 35. 27; whereas a witness
merely outside of the county cannot be paid because of the ,limitation of Arti-
cle 24.16.




                                              p.   510
 The Honorable       Robert   S.   Calvert,        page 6   (H-107)




        This is presently a moot question because,   as shown by the appro-
 priation bill quoted herein below, the moneys appropriated    for expenses
 of witnesses  under Article 24.28 is confined to “felony cases”.

        Your   8th question    is as fo,llows:

               “8.     In the securing of witnesses    from without the
                       State, could this department pay a witness
                       who is summoned by a judge of that state to
                       appear in Texas,   if that state has not adopted
                       the Uniform A.ct?    (In this connection I refer
                       you to State vs. Jordan 320 P. 2d 446, 83
                       ARIZ.   248, 78 S. CT 1364, 357 U.S.     922, 2
                       L. ED. 1367, 79 S. CT 17, 358 U.S.       859, 3
                       L. ED. 2d 93. ”

         Attorney General Opinion No. M-1038 (1972) holds that even though
 the State of Georgia has not adopted the Uniform Act, a witness who is
 subpoenaed by a Texas court in accordance       with the provisions    of $2 of
 Article   24. 28 and who obeys the subpoena and testifies     in Texas is entitled
 to be paid witness fees and mileage in accordance      with the statute.    The
 1973 amendment would support the same result,        and we are not required
 to reconsider    Opinion M-1038.    State v, Jordan, 320 P 2d 446 (Ariz..Sup.
 1958, cert. den. 357 U.S.      920, reh. den. 358 U.S.    859) does not limit the
 Legislature’s    authority to provide re-imbursement     for the expenses of
 witnesses,    regardless   of where they live and regardless    of the adoption of
 the Uniform Act by the state where they live.

        Your   9th question    is as follows:

               “9.     If more than one witness             rides in the same
                       car , could each witness             be legally paid 12$
                       per mile? ”

        The answer to this question is “no”.       Only the person furnishing the
automobile and paying the expenses of its operation incurs any “reasonab,le
and necessary ” travel expense for its use and only he can be reimbursed.        If
the witnesses  share the expenses,    nevertheless    only 12$ per milk can be
reimbursed,   to be divided as the witnesses agree among themselves.




                                              p.   511
The Honorable        Robert   S. Galvert,        page 7 (H-107)




       Your tenth question       is as follows:

              “10.     Could a witness travel back and forth
                       between his home and the court and
                       receive 12$ per mile for each trip or
                       would permission  from the judge need
                       to be had before additional trips could
                       be made? ”

       Sedtion 2 of Article35.     27, as amended,     furnishes  only general guide-
lines for the payment of mileage.        The.rights   of a witness tomrecover mile-
age for commuting~ back and forth to court would, we believe,             be determined
by the word “necessitated”       contained in $2.   Mileage for commuting~would
be “necessitated”    if it would constitute a smaller claim than would result
from a claim for per diem; ‘or-if, because of the health or personal affairs
of thenwitness,   it would be necessary     for the witness to commute.        Since
                                .
the witness is required by $ 2 to submit his claim in affidavit form,            and
since the payment of such claim i’s subject to approval by the judge of the
court ($ 4), it i-nay be incumbent upon the witness,        as a practical   matter,
to secure the judge’s approval before he decides to commute.               Therefore,
the answer to Question No. 10 would be that the witness is confined to nec-
essary travel expenses,      including mileage which may include multiple trips
and that these trips do not necessarily       have to be approved in advance by the
judge.   Such trips are ,subject,to disapproval      if they are not necessary.

       Your   eleventh    question   is as follows:

              “11.     Could a witness,   where a case has been set
                       for trial and the witness appear and the case
                       is postponed to a future date of the same term
                       of coyit and the witness is directed to return
                       to the court at that time, be entitled to the 12$
                       per mile?”

       The discussion  under Question No. 10 is applicable        here.   If the witness
is directed by the judge to re-appear  from time to time,         his mileage would be
“necessary”   upon each trip to the court.
      In connection with Questio.ns 10 and 11 you call our attention to Attor-
ney General Opinions No. Is O-1594 (1939), O-6456 (1945) and a letteropinion
dated March 13, 1934:   These opinions all construe Article 1036, Texas Code




                                            p.   512
The Honorable       Robert   S.   Calvert,        page 8 (H-107)




of Criminal Procedure,    which was the predecessor     of Article 35.27.
The new statute bears little resemblance    to the old, and the prior inter-
pretation of Article 1036 furnished little guidance or relevance    in answer-
ing questions 10 and 11.

      Your 12th question          is as follows:

             “12.     Article  35. 27 C. C. P., Section 3 provides
                      for other expenses.     Who should make the
                      claim for this type of expense and to whom
                      would it be payable,    and is there any money
                      appropriated   for :the payment of this type of
                      expense? ”

      Section   3 of Article       35. 27,   as amended,       provides:

                   “In addition to compensation   for travel and
            living expenses,   the Comptroller  of Public Accounts,
            upon proper application by the attorney for the State,
            shall pay such other expenses as may be required by
            the laws of this State or the state from which the
            attendance of the witness is sought. ”

The three questions are answered as follows:    (1) The application is made
by the attorney for the state; (2) The claim normally would have to be made
payable to the witness; (3) The Appropriation  Bill contains an appropriation
for the payment of this type of expense.

       The General Appropriations                 Act for 1974-1975,   at page l-16,   contains
the following appropriations:

             11.      “Expenses     of attached witnesses,
                      witness fees and mileage allowed
                      witnesses    where the witness lives
                      outside the county where the case
                      is being tried, allowed under
                      Article   35. 27, C. C. P.           70,000                 70,000




                                             p.    513
The Honorable      Robert   S. Calvert,        page 9 (H-107)




                     I’..   . .

             13.     “Expenses    of witnesses
                     in felony cases or before
                     a grand jury summoned
                     under the provisions    of
                     Article  24.28,  C. C. P.
                     to attend and testify in
                     this State.                                6,000     6,000

             14.     “To pay the Deficiency
                     Certificates   issued by the
                     State Comptroller     under
                     the provisions    of Article
                     35.27,   C. C. P. for witness
                     fees issued for the fiscal
                     year beginning September 1,
                     1971 through August 31, 1972.              2, 000”

       Paragraph (b) of $ 4 of Article 24.28 adopts the provision    of Article
35. 27 with respect to the compensation    of non-resident witnesses.

       It will be observed that Item 13 in the Appropriation      Bill does not
confine itself to a particular   type of expense,   such as witness fees or
mileage.     Therefore,  in our opinion, this language is broad enough to
constitute an appropriation    of funds with which to reimburse       an out-of-state
witness,   not only for the travel and living expenses referred to in § § 1 and
2, but also the “other expenses”      referred to in $3 of Article     35. 27, as
amended.      As noted above, item 13 is limited to felony cases and apparently
no money has been appropriated       to pay out-of state witnesses     who appear in
any kind of misdemeanor      case under the provisions    of Article    24. 28.

                                     SUMMARY

                      Under the provisions
                     1.                       of Articles  24.28 and
             35.27, Texas Code of Criminal Procedure,         as amended
             by House Bill 844, both out-of-state    witnesses   and out-




                                          p.   514
The Honorable   Robert   S.   Calvert,        page 10 (H-107)




           of-county witnesses   can be legally paid reasonable
           and necessary   expenses if they are requested in
           writing by the prosecuting  attorney or the court to
           appear as a witness in this State.

                  2.  The $25 per day provided for in Article
           35.27,  T.C.C.P.,     is not a fixed per diem but is a
           reimbursement     for actual expenses not to exceed
           $25 per day.

                  3. The 12$ per mile provided in Article   35.27,
           T. C. C. P., is a legislatively determined and fixed
           amount for each mile traveled.

                  4. A witness who travels by bus, train or air
           is reimbursed  for his actual out-of-pocket expense,
           provided that such method of travel is reasonable   and
           necessary.

                   5. Under Article 24.28 the State can pay an
           out-of-state  witness compensation  for appearing to
           testify in any misdemeanor,   but a merely out-of-county
           witness can only be paid for testimony   in a misdemeanor
           case for which a jail sentence may be the punishment
           under Article 24.16.

                  6. The State Comptroller              can pay a witness who
           is summoned to appear in Texas               by a judge of a state
           that has not adopted the Uniform             Act.

                 7.  If more than one witness rides in the same
           care, only the owner of the car can be legally paid 12$
           per mile.

                   8. When a witness travels back and forth by personal
            automobile between his home and the court either during a
            trial or when a case has been set for trial and postponed, he




                                         p.    515
The Honorable   Robert   S.   Calvert,        page 11 (H-107)




           is entitled to 12$ per mile for each trip providing
           the same is reasonable   and necessary   and is
           approved by the judge.

                  91 The “other expenses”     in addition to travel
           and living expenses,   contemplated    by $ 3 of Article
           35.27 should be applied for by the attorney for the
           state, paid to the party who incurred the expenses
           and money has been appropriated      for such payment.




                                                 OHN L. HILL
                                                Attorney General   of Texas




DAVID M. KENDALL,         Chairman
Opinion Committee




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