               NOS. 07-09-00301-CR, 07-09-0302-CR, 07-09-0303-CR,
                 07-09-0304-CR, 07-09-0305-CR, 07-09-0306-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   AUGUST 20, 2010


                       VIENGKHONE SIKALASINH, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

          NOS. 58,210-A, 58,211-A, 58,212-A, 58,213-A, 58,216-A, 58,217-A;

                          HONORABLE HAL MINER, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                CONCURRING OPINION

       The Court reaches the correct result in this case, and I concur in the Court’s

judgment. I concur also in the Court’s discussion of appellant’s issues one and two,

regarding attorney’s fees. With regard to appellant’s issue three regarding witness fees,

the Court correctly points out that, even before its 1999 repeal, subsection (a) of article

102.002(a) of the Code of Criminal Procedure expressly excluded witness expenses

paid under article 35.27 from its provisions. See Act of May 17, 1985, 69th Leg., R.S.,

ch. 269, § 1, 1985 Tex. Gen. Laws 1300, 1302, repealed by Act of May 22, 1999, 76th
Leg. R.S., ch. 580, § 11, 1999 Tex. Gen. Laws 3121, 3123.           The Court thus correctly

concludes that repeal of subsection (a) of article 102.002 cannot have the effect of

authorizing the assessment against appellant of the cost of witness fees paid under

article 35.27.


       It seems to me, however, that there is a more fundamental problem with the

State’s position that article 102.002 provides a statutory basis for imposition of non-

resident witness expenses on appellant.          In pertinent part, subsection (c) of article

102.002, on which the State relies, states “a defendant is liable on conviction for the

fees provided by this article for witnesses . . . .” Tex. Code Crim. Proc. Ann. art.

102.002(c) (Vernon 2006). The Court’s opinion quotes the repealed subsection (a) of

article 102.002.    That now-repealed subsection provided per diem and mileage

reimbursement for witnesses. See Act of May 17, 1985, 69th Leg., R.S., ch. 269, § 1,

1985 Tex. Gen. Laws 1300, 1302, repealed by Act of May 22, 1999, 76th Leg. R.S., ch.

580, § 11, 1999 Tex. Gen. Laws 3121, 3123. Since the repeal of its subsection (a),

however, article 102.002 does not provide fees for witnesses.            Under the current

provisions of article 102.002, as I read them, there are no “fees provided by this article”

for which a convicted defendant may be liable. For that reason, I concur in the Court’s

judgment.


                                                          James T. Campbell
                                                               Justice

Quinn, C.J., joins in this concurring opinion.



Publish.

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