                         January '7, 1%



Mr. Robert S. Calvert                Opinion No. C-579
Comptroller of Public Accounts
Capital Building                     Re: Payment of witness fees
Austin, Texas                        under the provisions of the
                                     Texas Code of Criminal Pro-
Dear Mr. Calvert:                    cedure, 1966.
     In your recent opinion request to this office you pose
several questions with regard to the payment of witness fees
in accordance with the provisions of the new Texas Code of
Criminal Procedure which~'became effective January 1, 1966.
The questions you pose are as follows,:
        "1.   Are the witness fees provided for by Article
              35.27 C.C.P. payable by the State under the
              following conditions:
              a.    To an out-of-county witness subpoenaed
                    in a misdemeanor case in which confine-
                    ment in jail is a permissible punishment
                    as provided in Article 24.16 C.C.P?
              b.    To a convict attached under the provisions
                    of Article 24.12 C.C.P. in view of the
                    provisions of Article 24.22 ~c.c.P., and
                    Article 35.27 C.C.P., Section (z), the
                    last sentence of the first paragraph?
              C.    To an out-of-county witness subpoenaed to
                    appear before & grand jury by the judge
                    having the subpoena issued as provided
                    for in Article 35.27 C.C.P., Section 1,
                    in view of Section (2) of Article 35.27
                    C.C.P.?
              d.    To an out-of-county witness subpoenaed be-
                    fore a grand jury concerning an offense
                    for which the only punishment that could
                    be given by the court would be a fine?
              e.    To an out-of-county witness attached to
                    appear before the grand jury as provided
                    for by Article 20.11 C.C.P. in view of the

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Mr. Robert S. Calvert, page 2          (C-579)


               provisions in Article 35.27 C.C.P., Section
               (z), the last!.
                             sentence
                              -- -..~- of the first paragraph
               and Article 24.22 c.c.P.?
          f.   To an out-of-county witness subpoenaed to
               appear before a judge hearing an application
               under habeas corpus as provided in Article
               24.01 C.C.P.? If so, would the fees be pay-
               able if the case were: a fineable case only,
               a misdemeanor case for which confinement in
               jail is a permissible punishment, or would
               the case have to be a felony? Would witness
               fees be payable if the habeas corpus proceed-
               ings were held in any court other than a
               district court?

          g.   To an out-of-county witness attached as pro-
               vided for in Article 16.11 C.C.P., to appear
               before an examining trial? If so, would such
               fees be payable if the accused offense was
               a misdemeanor punishable by a fine only, a
               misdemeanor punishable by confinement in jail
               or would the offense have to be a felony?
          h.   To an out-of-county witness summoned under the
               provisions of Article 24.01 C.C.P., to testify
               in a "coroner's inquest", or in any other case
               in which the testimony of a witness may be
               required under the provisions of this Code?
          1.   To an out-of-county witness subpoenaed to a
               court of inquiry under the provisions of Article
               52.03 C.C.P?

          j.   To a witness residing outside the State of Texas
               when summoned outside the State of Texas by a
               Texas subpoena?
          k.   To a witness residing outside the State of Texas
               when summoned as provided for in Article 24.28
               C.C.P.?
    2.   Is the State authorized to pay the witness fees
         authorized in Article 24.28 C.C.P. to an out-of-state
         witness summoned under it to testify in a misde-
         meanor 7ase whether it be only a fineable case or
         a case for which a jail sentence may be the punishment?

    3.   Is the State authorized to pay the witness fees

                              -2792-
Mr. Robert S. Calvert, page 3,     (C- 579)


              authorized in Article 24.28 C.C.P. to an out-
              of-state witness summoned under the provisions
              of Article 24.03 C.C.P., 24.16 C.C.P, 24.01
              C.C.P., 24.02 C.C.P., or Article 15.27 C.C.P.,
              when a Texas subpoena is served on the witness
              outside of the State of Texas?
     4. Is the money appropriated in House Bill No. 12,
        Acts of the 59th Legislature, Article I, Judiciary
        Section-Comptroller's Department in Items 11 and 14
        payable to any witness attending court in a case
        other than a felony case or before the Grand Jury
        in other than a felony case? Or in a Habeas Corpus
        proceeding where such proceeding is held.in other
        than a District Court or to appear before the Grand
        Jury?

     5. In the approval of witness fee bills by the judge
        as provided for in Article 35.27 C.C.P., is the
        judge of the court wherein the case is being tried
        and the witnesses are summoned for such case the
        only judge authorized to approve such witness fee
        bills, whether said judge be a regular, special,
        or an assigned judge?"
     Since this opinion will of necessity be somewhat lengthy,
for convenience we will number the paragraphs as nearly as
we can to correspond with the numbers of the questions set
out in your opinion request. We also point out that al-
though witness fees are allowed by the various articles of
the Code of Criminal Procedure this does not necessarily
mean that the Legislature has appropriated funds for payment
of witness fees in various types of cases. You will note
throughout the opinion we discuss particular situations and
whether or not funds have been appropriated by the Legisla-
ture in these situations.
     l-a. Your first question is answered in the affirmative.
Article 24.16, Code of Criminal Procedure of Texas, 1966,
provides the authority for the compulsory attendance of out-
of-county witnesses in misdemeanor cases in which confinement
in jail is a permissible punishment. However, Article 24.16
specifically prohibits the compulsory attendance of more than
one character witness in misdemeanor cases of this type.
Article 35.27 provides for payment to any witness who has
beensubpoenaed out of the county of his residence to testify
in any case. It is our opinion, therefore, that Article
35.27 provides for the payment of witness fees to out-of-county
witnesses subpoenaed in misdemeanor cases in which confine-
ment in jail is a permissible punishment. Your attention is
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Mr. Robert S   Calvert, page 4,       (C-,579)



invited, however, in this instance as well as others con-
cerning misdemeanor subpoenas, to the latter portion of
this opinion wherein it is pointed out that apparently no
funds have been appropriated by the Legislature for payment
of witness fees in misdemeanor cases.

     l-b. Your second question is answered in the nega-
tive. If a person who is serving a term of confinement as
the result of their conviction of a crime in this State is
attached to appear as a witness in.accordance with the pro-
visions of Article 24.13, such person shall not be paid
witness fees as provided in Article 35.27. Article 35.27
(3) provides that a witness when attached and conveyed by
the sheriff shall not be entitled to receive fees while in
custody of such officer. This answer assumes that the con-
victed person would be transferred by an officer from his
place of confinement to the place where he would give his
testimony. He would be eligible to be paid a witness fee
if by some means after being attached, he posted bond for
his appearance. However, it is difficult to imagine a
situation when a person convicted of a crime and serving a
period of confinement for that conviction would not be trans-
ferred from his place of confinement in the custody of the
sheriff.
     l-c. Your third question is answered in the affirma-
tive. An out-of-county witness subpoenaed to appear before
a Grand Jury by a judge having the subpoena issued as pro-
vided for in Article 35.27 (1) shall be paid witness fees as
as set out in Article 35.27. Article 25.27 (1) provides,
among other things, that any witness who has been subpoenaed
to appear before any grand jury out of the county of his
residence shall be eligible for witness fees.   The last
paragraph of Article 25.27 (1) is the  authority for a judge
to issue subpoenas for out-of-county witnesses to appear
before the grand jury. We are not unmindful that Article
35.27 (2) states that witness fees shall be allowed only
to such witnesses as may have been summoned on a sworn
written motion of the State's attorney or the defendant or
his attorney. It is the opinion of this office, however, that
paragraph two (2) is not a-limitation on the applicability
of paragraph one (1) of Article 35.27.   In other words, when
the Code does not require a written motion of the State's
attorney or the defendant in order that a witness may be
subpoenaed, paragraph two (2) has no applicability as to
whether or not witness fees are payable. We are of the opinion,
therefore, that paragraph two (2) is applicable only when a
written motion by the State's attorney or the defendant iS
a requirement for the i.ssuanceof the subpoena. If such
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   .




Mr. Robert S. Calvert, page 5,     (C-579)



requisite is not necessary, such as in the specific question
at hand, witness fees may be payable if the witness meets
the other requirements of Article 35.27. It is again
pointed out, however, that the Legislature has not appropriated
any funds to be used for the payment of witnesses in mis-
demeanor cases.
     l-d. Your fourth question is answered in the affirma-
tive. An out-of-county witness subpoenaed before a grand
jury investigating an offense for which the only punishment
which could be given is a fine is eligible to be paid witness
fees as provided in Article 35.27. In the first place,
Article 35.27, which states that any witness who has been
subpoenaed to appear before the grand jury out of the county
of his residence is eligible for payment of witness fees,
makes no distinction as to the type of offense which the
grand jury is investigating. Secondly, at the time the
grand jury is conducting its investigation, it is impossible
to know the offense for which the accused will be charged
after the investigation or even whether or not he shall be
charged at all. We hold, therefore, that a witness sub-
poenaed to appear before a grand jury is eligible for pay-
ment of witness fees no matter what the nature of the offense
the grand jury is investigating. It is again pointed out,
however, that the Legislature has not appropriated any funds
to be used for the payment ‘ofwitnesses in misdemeanor cases.
     l-e. Your fifth question is answered in the negative.
Article 20.11 provides for the compulsory attendance of out-
of-county witnesses before a grand jury by the issuance of
an attachment. Article 35.27 (3) prohibits the payment of
any witness fee to a witness when attached and conveyed by
the sheriff while in the custody of such officer. It is
pointed out, however, that Article 35.27 (1) allows for the
payment of witness fees to a witness who has been attached
if the witness makes a bond for his appearance before a
court or grand jury. Therefore, if an attached witness is
not conveyed in the custody of the sheriff but rather makes
bond for his appearance and travels to the grand jury on
his own expense to present his testimony, he shall be en-
titled to receive witness fees in accordance with Article 35.27
otherwise, he shall not.
     l-f. your sixth question is answered in the affirmative
Article 24.01 provides for the issuance of subpoenas in
habeas corpus proceedings. Article 35.27 provides for the
payment of witness fees to any witness who has been sub-
poenaed before any court out of the county of his residence.
It makes no difference as to the type of offense with which
the accused who is seeking relief by way of habeas corpus
is charged. Article 35.27 makes no distinction as to type
                             -2795-
Mr. Robert S. C:zlvert,page 6,     (c- 579)


orgrade of offense, and therefore it is our opinion that
witness fees are payable to the persons subpoenaed in a
habeas corpus hearing no matter what the type of offense is
with which the person is charged. The Legislature has not
appropriated any money for the payment of witness fees in
habeas corpus cases.
     l-g. The answer to the first portion of your seventh
question is in the negative. An out-of-county witness attached
as provided for in Article 16.11 to appear before an examin-
ing trial would not be eligible for payment of witness fees.
However, if said witness, after being attached makes bond
for his appearance rather than remaining in the custody of
the sheriff from time of his attachment to his appearance
for the purpose of testifying, Article 35.27 would provide
for the payment of witness fees to this witness. If said
attached witness made bond for his appearance and became
elj.giblefor payment of witness fees, payment would be made
only in the event that the person charged was accused of
a felony or a misdemeanor -inwhich confinement in jail is
a permissible punishment. There would be no witness fees
payable in this instance if the possible punishment was by
fine only. Again it is pointed out that we have been unable
to determine any portion of the Appropriations Bill which
provides money for the payment of witnesses in misdemeanor
cases. However, if the examining trial charges the defen-
dant with a felony, witness fees are payable.
     l-h. Your eighth question is answered in the affirma-
tive. Article 24.01, provides for the issuance of subpoenas
in a coroner's inquest, as well as in any other case in
which the testimony of a witness may be required under the
provisions of this code. Therefore, at any time an out-of-
county witness is subpoenaed to a coroner's inquest or in
any other case in which the compulsory attendance of an
out-of-county witness is authorized, said witness becomes
eligible for the payment of witness fees. Again, however,
it is pointed out that apparently there is no specific
provision in the Appropriations Bill which provides money
for the payment of witness fees in coroner's inquests.
     l-i. Your ninth question is answered in the affirmative.
An out-of-county witness subpoenaed to a court of inquiry be-
comes eli ible for payment of witness fees by virtue of
Article 2$ .Ol and 52.02. However, apparently there is no
specific allocation in the Appropriations Bill to be used
by the State for payment of witnesses in these instances.
     l-j, l-k. Your tenth and eleventh questions are combined
because of their similarity. First, there is apparently no
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Mr. Robert S. Calvert, page 7,     (C- 579)


authority in the Code of Criminal Procedure whereby a Texas
Court would have jurisdiction to subpoena witnesses residing
outside the State of Texas other than Article 24.28. There-
fore, your tenth question is answered in the negative.
Article 35.27 does not authorize payment of,witness fees to
a witness residing outside the State of Texas when served
outside the State of Texas with a Texas subpoena unless
said subpoena is issued in accordance with Article 24.28.
Your eleventh question is answered in the negative. However,
if's witness residing outside the State of Texas is subpoenaed
in a felony case in accordance with the provisions of Article
24.28,he becomes eligible for the payment of witness fees
by virtue of the provisions of Article 24.28. There has
been no money allocated by the Legislature for this purpose
in misdemeanor cases.
     2. It will be noted that Article 24.28 provides for
the attendance of out-of-state witnesses in criminal pro-
secutions in courts of ,recordand before grand juries. This
article makes no distinction between felonies and misdemeanors.
However, the Legislature has not appropriated any funds to
be used for the payment of out-of-state witnesses in mis-
demeanor cases.
     3. Your thirteenth question is answered in the negative.
The State is not authorized to pay witness fees to out-of-
state witnesses summoned~under the provisions of Articles
24.03, 24.16, 24.01, 24.02 or 35.27. It is possible, however,
that the procedure of Article 24.28 might be followed in
situations where the attendance of a witness is desired and/
or necessary and such witness would ordinarily be subpoenaed
under the provisions of the foregoing Articles. However, if
Article 24.28 is not followed, then an out-of-state witness
would not be eligible for witness fees. Again it is pointed
out that the money appropriated for witness fees for out-of-
state witnesses applies only in felony cases and/or grand
jury cases.
     4. Your fourteenth question Is answered in the negative.
The money appropriated in House Bill #12, Acts of the 59th
Legislature, Article I, Judiciary Section--Comptroller's
Department, Items 11 and 14, may not be paid by the State
to any witness attending Court in any case other than a felony
case or for an appearance before a grand jury. These items
do not appropriate money for the payment of w,itnessfees
in any type of habeas corpus proceeding no matter what court
is holding the hearing. We are of the opinion, therefore,
that there has been no money allocated in the current App-
ropriations Bill for the payment of witness fees in habeas
corpus proceedings.
                             -2797-
Mr. Robert S. Calvert, page 8,       (C-579)


     5. The judge of the court wherein the case is being
tried is authorized by virtue of Article 35.27 to approve
witness fee bills. He is the appropriate judge for this
purpose. However, if some other judge is sitting in his
place and performing his regular duties said other judge
would be authorized to approve said witness fee bills.

                          SUMMARY
         Articles 35.27 and 24.16 of the new Code of
     Criminal Procedure authorize payment of witness fees to
     out-of-county witnesses subpoenaed in misdemeanor
     cases in which confinement in jail is a permissible
     punishment. However, the Legislature has not appro-
     priated any funds for the payment of witnesses in
     these cases.
         Article 35.27 does not authorize the payment of
    witness fees to convicted persons who are attached in
    accordance with the provisions of Article 24.13 if
    they are conveyed by and in the custody of the sheriff.
    However, if by some procedure the convicted person,
    after being attached, made bond for his appearance, he
    would become eligible for witness fees in the same
    manner as would any other witness who after being
    attached made bond for his appearance.
          Article 35.27 provides for the payment of witness
     fees to out-of-county witnesses subpoenaed to appear
     before a grand jury, and Article 35.27 (2) is not a
     limitation of Article 35.27 (1). However, the Legisla-
     ture has appropriated money for payment of fees only
     in felony cases.
          Article 35.27 provides for the payment of witness
     fees to out-of-county witnesses subpoenaed before a
     grand jury and makes no distinction with regard tc the
     type of offense the grand jury is investigating. There-
     fore, under Article 35.27, an out-of-county witness
     will become eligible for witness fees even if the grand
     jury was investigating an offense for which a fine was
     the only possible punishment. However, it is again
     pointed out that the Legislature has appropriated no
     money to be paid for witness fees in misdemeanor cases.
          A witness attached for an appearance before a grand
     jury in a county other than that of his residence would
     not be eligible for the payment of witness fees if he
     were conveyed by the sheriff and remained in the custody
     of such officer.
                            -2798-
Mr. Robert S. Calvert, page 9,      (C- 579)


         An out-of-county witness subpoenaed to appear
    in a habeas corpus proceeding would, under Article
    35.27, become eligible to receive witness fees with-
    out regard to the type of case for which the accused
    was being held. However, the Legislature has not
    appropriated any money for the payment of witness
    fees in habeas corpus cases.
         An out-of-county witness attached to appear
    before an examining trial would not be eligible to
    receive witness fees.
         An out-of-county witness subpoenaed to appear
    at a coroner's inquest becomes eligible for the pay-
    ment of witness fees but there have been no funds
    appropriated by the Legislature for this purpose.
         An out-of-county witness subpoenaed to appear
    before a court of inquiry becomes eligible for the
    payment of witness fees but there have been no
    funds appropriated for this purpose.
         There is no authority under the Code of Criminal
    Procedure for the compulsory attendance of out-of-state
    witnesses other than in complaince with Article 24.28.
    If Article 24.28 is complied with and an out-of-state
    witness is subpoenaed, he becomes eligible for payment
    of witness fees. The Legislature has not appropriated
    any money for the payment of witness fees in misde-
    meanor cases in this section.
         Unless the procedure outlined in Article 24.28
    is followed, an out-of-state witness is not eligible
    to receive witness fees in any case.
         House Bill No. 12, Acts of the 59th Legislature,
    Article I, Judiciary Section-Comptrollers Department,
    Items 11 and 14 allocate money to be paid by the State
    to out-of-county and/or out-of-state witnesses only
    in felony cases or in appearances before a grand jury.
    There is no money appropriated for the payment of wit-
    ness fees in habeas corpus proceedings.
         The judge of the court wherein the case is being
    tried is authorized under Article 35.27 to approve
    witness fee bills. H,2wever,if some other judge under
    an exchange of benches is sitting in his place, then
    said alternate judge would be authorized to approve
    said witness bills.

                           -2799-
                                                           ‘   .,




Mr. Robert S. Calvert, page 10,        (c-579)



                                       Yours very truly,
                                     IJAGGONERCARR
                                     Attorney General of Texas



                                  BY
                                     Sam.Kelley
                                     Assistant Attorne
SK/lb
APPROVED
OPINION COMMITTEE
W. 0. SHULTZ, CHAIRMAN
Robert Owen
Howard Fender
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
BY:   T. B. Wright




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