Honorable H. D. Stringer
County Attorney
Hall Cbunty
Memphis, Texas
Dear Sir:                   Opinion no. O-3633
                            Re: Does the State or a
                                 defendant have the
                                 right to subpoena
                                 and attach out of
                                 county witnesses in
                                 a misdemeanor case?
          This is to acknowledge receipt of your recent
letter asking our opinion as stated in the above question.
          While we have made a careful study of the ques-
tion, in the 1Fght of the statutes and the case cited by
you, we are unable to find any authority authorizing the
use of a subpoena or attachment for out of county witnesses
in misdemeanor cases.
            In the case of Cotbren v. State, 139 Tex. Cr. R.
644,   141 S.W. (2d) 594, cited in your letter of June 7th,
the appellant was convicted in the county court of San
Saba County on a misdemeanor charge and assessed a fine.
ou motion for rehearing appellant insisted that error was
committed in the refusal of a continuance because of an
absent witness. We quote from Judge Grave's opinion on the
motion for rehearing:
            "Appellant's request for a continuance was
       denied, as well as his request to have a sub-
       poena issued for such witness, the trial court
       stating that he did not think such was necessary.
       Nowhere did appellant state what he expected to
       prove by the son of the State's witness, and it
       is evident from the record that he did not know,
       as he only found out that such witness was
       present at the alleged sale when the agent so
       testified. It was also shown that the witness
       was not in the county at the time of the trial,
Honorable Il.D. Stringer, page 2


      but was supposed to be In Corpus Christi,
      and therefore not amenable to a subpoena
      Issued out of the county court." (Emphasis
      ours)
          As stated above, we have been unable to find any
other expressions of the Court of Criminal Appeals relative
to process for witnesses in misdemeanor cases in counties
outside the county of prosecution. The rule that such pro-
cess is unavailable, however, seems to be generally recog-
nized. That the Legislature of this State recognizes such
rule is evident from the insertion of Section 5 In the
present so-called "Rot Check Law." Such sectlon requlres
process to be Issued and served "In the County or out of the
      ." provides that such process shall "ha   the same
?EP
b n ing force and effect as though the offensrb eing prose-
cuted were a felony;" and further declares: "and all officers
issuing ana serving such process In or out of the county where-
in the prosecution is pendinR. and all witnesses from within
or without the county wherein the uroseoutlon is pendlng,
shall be compensated in like manner as though the offense
were a felony in grade." (Emphasis ours). See General Laws,
46th Legislature, p. 246; Art. 567b, Vernon's Annotated
Penal Code, pocket supplement, Sec. 5.
          In vFew of the above expressions by the Court of
Crlmlnal Appeals and the Legislature, we are impelled to
adhere to the opinions heretofore rendered by this Depart-
ment that the question as stated should be answered in the
negative.
                                        Yours very truly

APPROVED JUN 14, 1941              ATTORNEY GERERAL OF TEXRS
/s/   Grover Sellers
FIRST ASSISTANT                    BY        /S/
ATTORNEY GENERAL                           Benjamin Woodall
                                                  Assistant
BW:db/mjs
                              APPROVED
                               OPINION
                             coMMITTEE
                             BY BWB
                               Chairman
