                             QBffice     of tfie I?lttornep @enera
                                           dbtate of Qexae
DAN MORALES
 ATTORNE\’
      GENERAL                                    April 7, 1995



     Honorable Smfronia Thompson                              Qpiion No. DM-342
     Chaif
     Committee on Judicial Atihirs                            Re: Whether witness fees under
     Texas House of Representatives                           section 22.01, Texas Civil Practice and
     P.O. Box 2910                                            Remedies Code, must be paid to a
     Austin, Texas 78768-2910                                 person who is subpoenaed to appear
                                                              and give testimony at a location other
                                                              than the courthouse (RQ-667)

     Dear Representative Thompson:

             You have requested an opinion from this office construing section 22.001, Texas
     Civil Practice and Remedies Code. Section 22.001 was amended by House Bill 887
     during the seventy-third legislative session, to require that a flat fee of $10 be paid to
     witnesses who were subpoenaed to appear in court. Act of April 28, 1993, 73d Leg.,
     RX, ch. 103, 1993 Tex. Sess. Law Serv. 192, 193. Pursuant to this amendment you ask
     whether witness fees under the section must be paid to a person who is subpoenaed to
     appear and give testimony at a location other than a courthouse. Section 22.001 provides:
                      (a) Except as provided by Section 22.002r, a witness is entitled
                 to 10 dollars for each day the witness attends court. This fee
                 includes the entitlement for travel and the witness is not entitled to
                 any reimbursement for mileage traveled.
                      (b) The party who summons the witness shall pay that witness’s
                 fee for one day, as provided by this section, at the time the subpoena
                 is served on the witness.
                      (c) The witness fee must be taxed in the bii of costs as other
                 COStS.

     Civ. Prac. & Rem. Code $22.001 (footnote added). You suggest that the legislative
     intent of section 22.001 was to tacitly exclude payment of such fees to witnesses who
     were subpoenaed for deposition at a place other than the courthouse.. However, we

             %ction 22.022 prcvtrJcathat “[a] witass who is xprcsa~tcd to tide 150 miles or less from B
     countyin which a tit is pending or who may be found within that distanozat the time of trial on the suit
     maybe sulqmmd in the suit.”
Honorable Senfronia Thompson - Page 2              (~~-342)




believe that the word “court,” as used in this provision, does not have the narrow meaning
of the courthouse but includes any evidentiary proceeding within the lawsuit.

         We begin our analysis by considering the scope of the term “attends court” and
similar expressions in section 22.001 and its predecessors. An analysis of the history of
the predecessor of section 22.001, V.T.C.S. article 3708, and its connection with the other
articles that were moved into part II, section 9, of the Rules of Civil Procedure is
instructive. Former V.T.C.S. articles 3404 to 3769 (repealed by Act of May 12, 1939,
46th Leg., R.S., ch. 25, $ I, 1939 Tex. Gen. Laws 201, 201) addressed witnesses and
evidence, as well as depositions. These provisions did not distinguish between trial and
deposition testimony. Article 3708 addressed fees of witnesses and provided that

                [wlitnesses shall be allowed a fee of one dollar for each day they
           may be in attendance on the court, and six cents for every mile they
           may have to travel in going to and returning therefrom, which shall
           be paid on the certificate of the clerk, by the party summoning them;
           which certificate shall 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.
We note that although this provision has been amended and rewritten, it has not been
substantively changed. Such continuity suggests that the underlying purpose of this
provision has not been altered.

         Further, rule 201 of the Texas Rules of Civil Procedure, which provides that “[a]ny
person may be compelled to appear and give testimony by deposition* in a civil action”
(footnote added), was originally derived in part from former article 3754 unchanged and
originally provided in part: “Any person may be compelled to appear and depose in Ihe

        *According10 Texas Jurisprudence,

                The tcnn “deposition”is sometimesused in a broadsense 10 describeany
           written statementverified by oath, but in its more appropriatesnd technical
           sense, the meaning of the word is limited to the uanscribzdtestimonyof the
           witness given in the course of a judicial proceeding,in advance of trial or
           hearing, upon oral examinationor in responseto tinen interrogatories,where
           an oppoltunityis givenfor crossexamination.
31 TEX.Jva. 3~Discovery md Deposifions $49 (1994) (foolnoteomitted);see 3 AMJUR.2DAfldovif 8 1
(1986) (distinctionbehveenaflidavitand deposition).
                On proofof serviceof a notice10takea depositioo,winen or oral,the clerk
           or any off~cerauthorizedto take depositionsand any ceHXkdshorthandreporter
           must immediately issue and cause to be served on Ihe witness a subpoena
           directingthe witnessto appearbeforethe off~iarat the time and place stated in
           fhc noticefor the purposeof givingthe witness’deposition.
3 1 Trx. Jua. 3~ Discovery and Depositions 5 65 (1994) (footnoteomitted).



                                             p. 1821
Honorable Senfionia Thompson - Page 3             (DM-342)




same manner as witnesses may be compelled to appear and tes@                      in court.     .“a
Tex. R. Cii. P. 201 historical note (emphasis added); see V.T.C.S. art. 3754 (repealed by
Act ofMay 12, 1939,46th Leg., R.S., ch. 25, 5 1, 1939 Tex. Gen. Laws 201,201). This
provision seems to indicate that witnesses compelled to appear for the purpose of being
deposed were entitled to the same fee as those compelled to appear to test@ at the
courthouse. Over the years rule 201 has been amended by the supreme court; the changes
to the rule have not overruled the entitlement to witness fees. See Tex. R. Civ. P. 201
historical note (Vernon 1976 & Supp. 1994). As stated above, former V.T.C.S. articles
3704 to 3769 (repealed 1939) combined all provisions concerning witnesses and evidence
with those addressing depositions, making no distinction between witnesses testifying
during trial and those providing deposition testimony at locations other than the
courthouse. Further, a deposition transcript may be read into evidence at trial, Tex. R.
Civ. P. 207; see Tex. R. Civ. Evid. 801(e)(3), where, in most instances, the parties have
reserved their evidentiary objections, see Tex. R. Civ. P. 204(4). We conclude that at any
such proceeding, witnesses appearing pursuant to a subpoena are “attend[ing] court,”
pursuant to Civ. Prac. & Rem. Code 3 22.001(a), and so are entitled to the payment of
witness fees at the time of service.

        Similarly, an individual who is compelled to act in response to a subpoena for the
production of records, in addition to appearance as a witness, is entitled to a witness fee at
the time of service. A witness may not be fined for failure to attend court, nor shall
attachment issue in a civil suit, until it is shown to the court, by affidavit of the
subpoenaing party or the party’s agent or attorney, that all lawhrl fees have been paid or
tendered to the witness. Tex. R. Civ. P. 179; Texus &Pacific Ry, v. Hall, 19 SW. 121,
 122 (Tex. 1892); Kie&r v. Miller, 560 S.W.2d 431, 432 (Tex. Civ. App.-Beaumont
 1977, writ ref d n.r.e.).

      Furthermore, the legislative history of section 22.001 indicates that the
amendments to the section were made in an effort to

           simplify the computation of and slightly increase the fees a witness is
           entitled to under the Civil Practices [sic] and Remedies Code. This
           bill also extends the distance of privileged travel for a witness
           traveling to and from a proceeding from 25 miles to 150 [miles].

House Comm. on Judicial Affairs, Bill Analysis, H.B. 887, 73d Leg. (1993). When
ascertaining legislative intent, words and phrases shall be read in context and construed
according to rules of grammar and common usage. Linick v. Employers Mut. Casualfy
Co., 822 S.W.2d 297 (Tex. App.--San Antonio 1991, no writ); Gov’t Code 5 311.011.
Further, where language of the statute is unambiguous and its meaning is clear, effect is

        3Rules201, 202, and 203 as originallyadoptedcontainedthe previsionsof ankles 3754, 3755,
and 3756, unchanged. See Tex. R. Civ. P. 201 historicalnote;see o/so id. Rules 202-203 historicalnote
(repealed1971).




                                             p. 1822
Honorable Senftonia Thompson - Page 4         (DM-342)




given to the statute according to its terns. Mathews Const. Co. v. Jaqer Hous. Const.
Co., 528 S.W.2d 323 (Tex. Cii. App.-Beaumont 1975, writ refd n.r.e.). Thus, we
conclude that witness fees under section 22.001, Civil Practice and Remedies Code, must
be paid to all persons who are subpoenaed to appear and give testimony, regardless of the
location set in the subpoena.


                                   SUMMARY

              Witness fees under section 22.001, Texas Civil Practice and
          Remedies Code, must be paid to all persons who are subpoenaed to
          appear and give testimony, regardless of the location set in the
          subpoena.




                                                    DAN MORALES
                                                    Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH I. SHIRLEY
Chair, Opinion Committee

Prepared by Toya Cirica Cook
Assistant Attorney General




                                        p.   1823
