    OFFICE OF THE IQrrORNEY GENEaAL     OF TEXAS
                      AUSTIN




Honorable Forrester Emcock
Cri&al   Diatr5,otAttorney
Viaxahachie
          ) Texas
Dear Sir:




the above stat


                                 c. P., R. c. S.
                                tiedin a criraind
                                Court, entitled to
                             he api>earsin tiie




         ?.<yDistrict Clerk is cotironteitwith the
    above problem wherein a witness was called by
    the State for the DeeornberTern of Court, aad
    by agreement said case which was on cdl for
    the December Tern was passe6 to a day definite
,Zonorable Forrester Bancock, Page 2


     in the Earoh Tom of my Criminal District.
     ‘Court. This witness in o_uestion,by reason
     of the premises, is forced to Eke two cam-
     plete trips to the court, and vieare con-
     fronted viiththe problem as to whether or
     not he can b;ereimbursed for the saxa."
          Article 1036 of the Code of Criminal Procedure
reads, in part,'as follows:
          "1. Any witness who may have been
     recognized, subpoenaed or attached, and
     given bond for his appearance before any
   ~~Court, or before any grand jury, .outof the
     county of his residence to testify in a felony
     case, end who appears in compliance with the
     obligatiorisof such recognizance orbond,
     shall be elloweedhis actual traveling ex-
     penses, not exceeding four cents per mil.e going
     to end returning from the court or grand jury,
     by the nearest practi’caluo=veyznce, and tv.0
     dollars per day for each day he may necessarily
     be absent from home as a witness in such case.
           Vitnesses shall receive from the State,
     for attendance upon district aourts end grand
     juries in counties other than that of their
     residence, .in obedience to subpoenas issued
     under the provisions of law their actual
     traveling exnenses; not exceeding~four cents
   . per mile, going to and returning from the
     court or grand‘jury, by the nearest practical
     conveyancei snd tviodollars per day for each
     day~they may necessarily be absent from home
     as a witness, to~be paid as now provided by
     law; and the,fore;ianof the grand jurv or the
     district clerk, shall issue to such d&ess
     certificates therefor, after deducting there-
     from the amounts advanced by the oryioers
     serving sei& subpoenas; as.sbovn by the returns
     on said subpoenas; which certificates shall be
     approved by the district ju&ge; and recorded
     by the .olerk in a well-bound'book kept for
     that purpose; provided, that when en indictment
   - can be found fro= the evidence taken before an
     inQuest or examining trial; no subpoena or
     attachzent shall.issu& for a viithesswho resides
     out of the county in which~the prosecution is
iiinGcebl8 i-orrestertincook, Pege 3



    =eneing to ap~ecil before a grsnd jury. ';:‘hen
    the grand jury  shall certify to the district
    judge that sufficient evidence cannot beg
    secllredupon~v.Ctichto find an indictment,
    exca t 230~ testimay of I;onresibentdtnesses,
    the 3istrict judge may tive subpoenas issued
    ss'2rovided for by.low 'to other Counties for
    dtness,to testify b&fore the grand jury not
    to exceec!.onewitness to any one fact, nor
    more than three ~~itnessesto any one CESO
    2eading before the grand jury. (As amezded
    $icts1927, 40th Lee., p. 113,'ch. 75, 8 1.)
          Y3ec. 2. Zitness fees shall be aLlov:ed
    only to such witnesses as may h&ve been SIXI-
    moned on the sworriwritten application of the
    State's attorney or ths defendant or his attpr-
  '.ney as prorldsd in,Article 463,~Code of Criminal
    Procedure, which svdrn application must be Ymede
    at th8 time of the ?roouriiq of the subpoena,
    attachment for, or recognizance of, the nitness.
   ,The judge to whom an application for attsctient
    is ade, may, in his~discretion, grant or refuse
    stich~applicatian,~whenpresented in term time.
    (As am8nded Acts 1931, 42nd Leg., p. 239, ch.
    143 t33.)
         "Sec. 3. Sefore the close of each term~of
    District Courti the ivitnassshall mke an &Pi-
    davit stating the nubor of miles he y)iilhave
  . traveled going to and returdng from the court,
    by the nearest prac'ticalconveyancei anldthe
    number of days he till1have been necessarily
    absent in going to and re~turaingfrom the place
    of trial; which affidavit shall be~filed with the
    papers of the case. No dtness shall receive
    p3y for his services as a witness in more than
    one case at any done tarm of the court. Fees shsll
    not be allone& to more than t&r0witnesses to the
    s3me fact, unless the judge before whvz the caus8
    is tried shall, after such case has been tried,
    continued, or,otherwise din?osea of, certify that
    sach'witnesses were necessary in the cause.
         To witness subpoenaed, recognized, or at-
    tached for th8 purpose of proving the general
    reputation'of ,the defendant'.shaJlbe allowed
..




     E0norabl.eFor&ester Ii3ncocX,?aL;e4


          the bdnefits hereof , provided t&e trial judge
          :~y in,his discretion, allaw pay to not more
          tkcn tvJo chzrecter witnesses for the State 3nd
          to not more than <V:Ooharaoter  witnesses for
          t2.edefenthat . (.$ cz2endod:>cts1931, hzna
          Leg.,,p.  Z39, ch. 143, 6 S.)*
                In an opizion rendered by this Bepnrtment on
     ~ebruory 21, 1935, v:ritten by Eoi-rorzble
                                              Leoa 0. Xoses,
     i,s;i3.<mtj+ttorney General, aBdresse& to the District
     Cie~k Sweetuate- TeXEiS,it Tiias  h3$d thst no witaess
      e~a~l'receive pni'for his services a3 s witriessin more
     ,thzn one case,at.any oze term of court; however,~in the
     0-re;ltthe witness13 instruoteb by the Juaga to return
     at the 3ame term of the.District Court at which~he was
      s~mimone
             d ana on the same os3e;the v:itnesswould be'
     entitled'to'his fee and mileage for a secon.6 trip.
              .This department hela in Opinior?Xo. O-EM   that
     3n out of county ritness 10,a felony'case is .entitlcdto
     tv:oOollors aa his ectual traveling,expenses not exoeed-
     ins four cents per mile.goizq to and returning froztl?e
     co(L-tfor a second trip to the court hrir;g the 33me term
     and in t&e same case.
               Section 3 of Article 1036, supra, proviGe3:
               Wo witness shall receive'p.&yfor his
          sezdces as a witness in more'than one case
          at any one term of court.?
     ‘Zzievor,as abave indicatea this Statute doss not prohibit
     a witness receiving tw0 dollars per Davyand his actual
     traveling'expense* not exeeea+g four cents _oarmile going
     to sd returning from the co'urzfor ;i seeond,trip to the
     cocrt curing the same term a& in the sane case.
                 ;irticle1096, Code Of 'CrinrinalPrcceZure, sWp-Ps,
     sgecifically grovides that any aitness who &y,i.kQe been
              . .
     recogaizea, subpoenaed qr attached, and given bona for his
     ap,gearancebefore any oout, or beeore by grar& Jury, out
     of tk.3county of his residence to,testify in a felony Csss,
     ad v.:%o               -~9lianoe with the o~dligztionsof such
               a,3pearsin,~cd,
     reso&zance      or bond, shall 'oeallcwed,his sctuel traveling
     expsnses, ,aot exceeding four cents per miifigoing to fild
     returning   from the coart or @zrd juzy,   by the necires'~
                                                               XaC-
     ti3al conveysnc0, an&two dollars per day for each Oay he
     my necessarily,be absent from hams a3 a witness +. such
E3zorable ~orrester~&ncock, Page 5


case.  Said Statutes further provides that such witness
shall receive from the State, for the &ten&once upon the
District Court and gr3nb  jury in counties other tk.313th2t
of his residence, and obediende to subnoencs iseued‘under
the provisions of law his sctual traveiing ex3enses, eot
exceeding four cents per nilei going to and Gturning
frsz the court or gracandjury, by the nearest practical
coilveyance,amI two dollars per day for each day I.32 say
necessarily be absent fron 1103~3as a witness, to be psi&
CE now provided by law.
          In view of Article 1036, Cockof Criminal Pro-
cedure, supra, you are respectfully advised that it is
the opinion of this depsrtnent that your question should
be answered in the affirmtive, ad it is so answered.
          Trusting that the foregoing fully amxeru      your
iiquiry, yleremin
                                     Pours very truly
                                AT'fO~%TZY
                                         GiZ&E~~ OF TZXQS

                                               &f--
                                BY
                                          Ar~&elfWilliam3
                                                Assistant



          APPROVEDMAR 9, 1940
