Honorable Wm. Hunter   Opinion NO. c-720
District Attorney
Dalhart, Texas         Re: Whether the counties bear
                           the expense of witness
                           mileage and per diem
                           under the Uniform Act to
                           secure the attendance of
                           witnesses from without
                           the State In criminal
Dear Mr. Hunter:           proceedings,
       In your opinion request you ask the captioned
question. Article 24.28, Vernonls Code of Criminal
Procedure,is the Uniform Act to Secure Attendance of
Witnesses from without the State. Section 4 thereof
provides, in part:
           "Sec. 4. If a person in any State,
       which by its laws has made provision for
       commandingpersons within its borders
       to attend and testify in criminal prose-
       cutlons, or grand jury Investigations
       commenced or about to commence, in this
       State, is a material witness in a prose-
       cution pending in a court of record in
       this State, or in a grand jury lnvesti-
       gatlon which has commenced or is about
       to commence, a judge of such court may
       issue a certificateunder the seal of
       the court stating these facts and spe-
       cifying the number of days the witness
       will be required, Said certificate
       may include a recommendationthat the wit-
       ness be taken Into immediate custody and
       delivered to an officer of this State
       to assure his attendance in this State.
       This certificateshall 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 at-
       tend and testify in this State he shall
       be tendered the sum of ten cents a mile
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Honorable Wm. Hunter, page 2 (C-720 )


        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 accordancewith the pro-
        visions of the summons shall not be re-
        quired 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 without good cause to at-
        tend and testify as directed in the
        summons, he shall be punished in the
        manner provided for the punishment of any
        witness who disobeys a summons issued
        from a court of record in this State."
         As you point out, no provision is made in this
Article as to who should pay such witnesses, There Is,
however,  a provision as to who should pay out of county
witnesses contained in Article 35.27, Vernonls Code of
Criminal Procedure,which provides:
           "(1) Any witness who has been sub-
        poenaed, or has been attached and given
        bond for his annearance before anv court.
        or before any grand jury, out of 'thecounty
        of his residence, to testify in a case
        regardless of dispositionof said case,
        and who appears in compliancewith the
 I      obligationsof such subpoena or bond,
        shall be allowed seven cents per mile
        going to and returning from the court
        or grand jury, by the nearest practical
        conveyance,and ten dollars per day for
        each day he may necessarilybe absent
        from home as a w’rtness in such case,
           "Provided,any witness who has been
        subpoenaedor has been attached and
        .g;;;;bond for his appearance before any
               out of the county of his residence,
        to te;tify in a case, and who appears in
        compliancewith said subpoena or with the
        obligationsof such bond, and the case
        in which he is a witness is reset for a
        later day in the same term of court, not
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Honorable Wm. Hunter, page 3 (C- 720)


         exceeding four days, shall not be paid
         mileage for any additional trip to or
         from court he may make by reason of the
         resetting of said case unless permission
         first had and obtained from the trial
         judge to make said trip, but shall be
         entitled to receive his per diem for the
         additional days he may be in attendance
         upon court by reason of the resetting
         of the case,
            "Witnessesshall receive from the State,
         for attendance won courts and nrand juries
         in counties other than that of Their Gesi-
         denoe in obedience to subpoenas issued
         under the provisions of law seven cents
         per mile, going to and returning from the
         court or grand jury by the nearest prac-
         tical conveyance,and ten dollars per
         day for each day they may necessarilybe
         absent from home as a witness to be paid
         as now provided by law; and the foreman
         of the grand jury, or the clerk of the
         court shall issue such witness certifi-
         cates therefor, after deducting therefrom
         the amounts advanced by the officers serv-
         ing said subpoenas,as shown by the re-
         turns on said subpoenas;which certificates
         shall be approved by the judge and recorded
         by the clerk in a well-bound book kept for
         that purpose; provided, that when an indict-
         ment can be found from the evidence taken
         before an inquest or examining trial, no
         subpoena or attachment shall issue for a
         witness who resides out of the county in
         which the prosecutionis pending to appear
         before a grand jury. When the grand jury
         shall certify to the judge that sufficient
         evidence cannot be secured upon which to
         find an indictment, except upon testimony
         of non-residentwitnesses, the judge may
         have subpoenas issued as provided for by
         law to other counties for witnesses to
         testify before the grand jury, not to ex-
         ceed one witness to any one fact, nor more
         than three witnesses to any one case pend-
         ing before the grand jury,'
        It Is the opinion of this office that the pro-
cedure for payment of the out of state witness Is the
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Honorable Wm. Hunter, page 4 (C-720 )


same as for any other out of county witness. Article
24.28, Sec. 4, Vernon's Code of Criminal Procedure,
merely changes the amount of compensationsuch wit-
ness is entitled to receive,
        We are bolstered in this opinion by the fact
that the 59th Legislature,in the General App;og;F;;gn
Bill, appropriatedthe sum of Two Thousand
Dollars for the payment of the expenses of witt?essds
in felony cases or before a rand jury summoned under
the provisions of Article 482a, old Code of Criminal
Procedure,now Article 24.28, Vernonas Code of Crimi-
nal Procedure,to attend and testify in this State.
(59th Legislature,Regular Session (1965), Chapter 720,
H. B. No, 12, page 1691.)
                             SUMMARY
              Out of state witnesses subpoenaed
           to apnear in Texas courts are paid in
           accordance with the payment of other
           out of county witnesses as set forth
           in Article 35.27, Vernon's Code of
           Criminal Procedure;however, the amount
           such witnesses are paid is In accordance
           with Article 24.28, Vernon's Code of Crim-
           inal Procedure.
                               Yours very truly,
                               WAGGONER CARR
                               AttorneyJjeneralof Texas


                               By:
REO/er                            Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V$ Geppert, Chairman
Sam Kelley
Bob Towery
Charles Swanner
James    McCoy

APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
                              -3472-