             -
                                   AURTPN,   %EXZ.S     78111
CRAWYORIP        C. MAW-PIN
  ATTORNEY       DlcNVERAx.
                                         January   5,   1972


    Hon. Wayne Burns                                           Opinion No. M-1038
    District Attorney
    Howard County Courthouse                                   Re:   Is the State Comptroller
    Big Spring, Texas 79720                                          authorized under Art. 24.28,
                                                                     V.C.C.P.,    to pay fees of a
                                                                      witness summoned and who
                                                                      appeared and testified pur-
                                                                      suant to that Article, the
                                                                      witness being a resident
                                                                      of the State of Georgia which
                                                                       has not adopted the Uniform
                                                                       Act to Secure the Attendance
                                                                       of Witnesses from Without
                                                                       the State in Criminal Pro-
                                                                       ceedings (Art. 24.28, V.C.
     Dear Mr. Burns:                                                   c. P. )?

         Your request for an opinion asks the following question:

                  Is the State Comptroller authorized under Art. 24.28,
                  V, C. C. P. , to pay fees of a witness summoned and
                  who appeared and testified pursuant to that Article,
                  the witness being a resident of the State of Georgia
                  which has not adopted the Uniform Act to Secure the
                  Attendance of Witnesses from Without the State in
                  Criminal Proceedings (Art. 24.28, V.C.C.P.)?

          Article 24.28, Vernon’s Code of Criminal Procedure, is a Uniform Act to
     secure attendance of witnesses from without the State to testify in criminal pro-
     secutions and grand jury investigations. Section 4 of the Article provides as
     follows:

                  “Sec. 4. If a person in any State, which by its laws
                  has made provision for commanding persons within
                  its borders to attend and testify in criminal prosecu-
                  tions, or grand jury investigations commenced or
                  about to commence, in this State, is a material

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Hon. Wayne Burns, page 2                (M-1038)



        witness in a prosecution pending in a court of record
        in this State, or in a grand jury investigation which
        has commenced or is about to commence, a judge of
        said court may issue a certificate under the seal of
        the court stating these facts and specifying the number
        of days the witness will be required.    Said certificate
        may include a recommendation that the witness be
        taken into immediate custody and delivered to an officer
        of this State to assure his attendance in this State. This
        certificate shall be presented to a judge of a court of
        record in the county in which the witness is found.

        “If the witness is summoned to attend and testify in
        this State he shall be tendered the sum of ten cents
        a mile for each mile by the ordinary traveled route
        to and from the court where the prosecution is pending
        and five dollars for each day that he is required to
        travel and attend as a witness.   A witness who has
        appeared in accordance with the provisions of the
        summons shall not be required to remain within this
        State a longer period of time than the period mentioned
        in the certificate, unless otherwise ordered by the court.
        If such witness, after coming into this State, fails with-
        out good cause to attend and testify as directed in the
        summons, he shall be punished in the manner provided
        for the punishment of any witness who disobevs a summons
        issued from a court of record in this State. ” -.

    In Attorney General’s   Opinion No. C-579 (1966) it was held:

        “Art. 35.27 does not authorize payment of witness
        fees to a witness residing outside the State of Texas
        with a Texas subpoena, unless said subpoena is issued
        in accordance with Art. 24.28, V.C.C. P.”

    In Attorney General’s   Opinion No. C-720 (1966) it was held that:

        “The procedure for payment of the out of state witness
        is the same as for any other out of county witness.
        Article 24.28, Sec. 4, V.C.C.P.,    merely changes the
        amount of compensation such witness is entitled to receive. ”



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    Hon. Wayne Burns, Page 3                (M-1038)



         In the instant matter, these facts are noted: (1) The witness was
    subpoenaed in accordance with Article 24.28; (2) The witness did appear
    in obedience to the subpoena and did testify in a felony case; (3) The State
    of Georgia has not adopted the Uniform Act to secure attendance of out of
    state witnesses.

         The first paragraph of Section 4 of Article 24.28 provides the procedure
    for subpenaing a witness to testify in a criminal prosecution, from any State
    which by its laws has made provisions for commanding persons within its
    borders to attend and testify in criminal prosecutions in this State.

         On the other hand we find no law which prevents the State of Texas from
    subpoenaing a witness from other states merely because they have not adopt-
    ed the Uniform Act.

         The second paragraph of Section 4 of Article 24.28 provides for the
    amount to be tendered a witness so summoned, and provides penalties if
    the witness fails to appear and testify after coming into the State.

         Irrespective of the fact that Georgia has not adopted the Uniform Act,
    all the procedures as set out in Article 24.28 were followed, and the witness
    obeyed the subpoena’ in all .respects and appeared and testified.

          Even though the State of Georgia from which State the witness was sub-
    poenaed has not adopted the Uniform Act to secure the attendance of witnesses
    from without the State in a criminal proceeding, we hold that if the procedure
    is followed as set out in Article 24.28, by our State officials, and the witness
    appears and testified, then the witness is authorized to be paid witness fees
    and mileage.    This is in accord with Attorney General’s Opinions Nos. C-579
    and C-720, supra.

                                   SUMMARY

               If a witness is subpoenaed to appear and testify under
          the provisions of Article 24.28, V.C.C. P., in a criminal
          prosecution,   and the witness obeys the summons, the witness
          is entitled to be paid mileage and witness fees.




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Hon. Wayne Burns, page 4        (M-1038)


Prepared by John H. Banks
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Bart Baling
Sam Jones
Max Flusche
Lonnie Zweiner




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