           THE         ATBYORNEY   GENERAL
                          OF TEXAS
                         Arr-.      TEXAH         787ll             s-et
                                                                   &-      720
                                 October    11, 1973               %7-163
The Honorable Oscar McInnis                        Opinion   No.    H- 125
Criminal District Attorney
Hidalgo County                                     Re:       Requirement      that the
Edinburg, Texas 78539                                        State Comptroller      pay
                                                             fees of out-of-state
                                                             witnesses    in advance.
Dear Mr.   McInnis:                                          Article   24. 28, V. T. C, CP.

        Your request for our opinion concerns    the interpretation  of Article
24.28 of Vernon’s    Texas Code of Criminal Procedure,       also known as the
Uniform Act to Secure the Attendance of Witnesses        from Without the State
in Criminal Proceedings.      Your letter was submitted prior to the close of
the recent legislative  session and could not take into account the provisions
of House Bill 844 (Acts 1973. 63rd Leg.,     ch. 477, p, 1285) which amended
Articles   24.28 and 35.27,   both of the Code of Criminal Procedure.

      Prior to those amendments    confusion existed as to the payment of
fees of out-of-state witnesses.  A series of opinions was rendered by this
Department in 1966 and thereafter.     House Bill 844 was intended,   in large
part, to meet some of the anomalies     previously  existing between the treat-
ment accorded witnesses    from out-of-state    and witnesses from within the
State but out-of county.

        Article 24.28 of the Code of Criminal Procedure    provides that a judge
of a court of record in this State may issue a certificate   stating that an out-
of-state   witness is a material witness in a prosecution  pending in his court
or in a grand jury investigation  about to commence.      The certificate  shall
state the number of days the witness will be required.

      Section   4(b) provides,   in part:

                    “If the witness is summoned to attend and testify
             in this State he shall be tendered the compensation  for




                                       p.   606
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        The Honorable    Oscar     Mcfnnis,    page 2(H-125)




                     non-resident   witnesses authorized by Article  35.27
                     of this Code, together with such additional compen-
                     sation, if any, required by the other State for com-
                     pliance. ”

              Your   question    is:

                           “Since the statute requires the mileage and per
                     diem to be tendered with the certificate  of the request-
                     ing court (Article 24.28,  C. C.P.)  when is the State
                     Comptroller   required to issue such amounts?”

               By its terms,   Article   35. 27 now applies not only to out-of-county
        witnesses   but also to out-of-state    witnesses.   Sections 2 through 5 gener-
        ally provide for the procedure       by which, after the tiitness’s appearance,
        a claim is to be filed with the Comptroller.

              Section   6 in its entirety     is as follows:

                            “Funds required to be tendered to an out-of-state
                     witness pursuant to Article    24. 28 of this Code shall be
                     paid by the Comptroller    of Public Accounts   into the
                     registry of the Court in which the case is to be tried
                     upon certificati.on by the Court such funds are necessary
                     to obtain attendance of said witness.      The Court shall
                     then cause to be issued checks drawn upon the registry
                     of the Court to secure the attendance of such witness.
                     In the event that such funds are not used pursuant to this
                     Act, the Court shall return the funds to the Comptroller
                     of Public Accounts.   ”

               Our answer to your questi.on is that, upon certification   by the court
        in which the case is to be tried that funds in a certain amount are necessary
        to obtain the attendance of a witness,   the Comptroller  of Public Accounts
        should pay those funds into the registry of that court to be disposed of by it
        in accordance   with other provisions  of the Code of Criminal Procedure     to
        secure the attendance of the witness.




                                                   p.   607
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                  The Honorable     Oscar   McInnis,   page 3 (H-125)




                         For   our opinion concerning other facets of fees for out-of-state
                  witnesses,    we call to your attention Attorney General Opinion H-107        (1973).

                         We believe that the amendments         to Articles   24.28 and 35.27 of
                  Vernon’s   Texas Code of Criminal Procedure           make the following opinions,
                  heretofore   issued by this office,    no longer effective:      Attorney General
                  Opinion C-720     (1966) holding that out-of-state     witnesses    are to be paid in
                  accordance    with the payment of other out-of-county         witnesses    and Attorney
                  General Opinion M-863 11971) holding that the county may not advance funds
                  to witnesses    entitled to be reimbursed      under Article    24.28 of the Texas Code
                  of Criminal    Procedure.     The amended statute specifically         provides that the
                  county in which the proceeding is pending may advance funds to any witness
                  who will be entitled to compensation        under the Article.      Further it should
                  avoid the unfortunate circumstance        involved in Opinion M-863 where, be-
                  cause of the unavailability     of funds, the witness could not be compensated
                  even though he had appeared.

                                                       SUMMARY

                                       Articles 24.28 and 35.27 of the Texas Code of
                                Criminal Procedure,       as amended in 1973, require the
                                Comptroller     to pay the statutory witness fee provided
                                for an out-of-state    witness into the registry of the Court
                                upon certification    by the judge that such witness fees are
                                necessary    to compe1 the attendance of the witness.    A
                                county may advance funds to a witness and will be entitled
                                to reimbursement      by the State.




                                                               Attorney   General   of Texas




                  DAVID M. KENDALL,           Chairman
                  Opinion Committee



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