THE    ATTORNEY                GENERAL
                         OF      TEXAS



                    January 9, 1968

Hon. Robert S. Calvert                Opinion No. M-185
Comptroller of Public Accounts
Capitol Building                      Re:   Whether mileage reimburse-
                                                                 -.
Austin, Texas                               ment and._$10.00
                                                       -     per diem,
                                            as provided In Article 35.27,
                                            Vernon's Code of Criminal
                                            Procedure, is payable to
                                            a witness for ,attendingthe
                                            same court under subpoena in
                                            four separate cases on
                                            the same day, so that the
                                            witness would collect four
                                            mileages and $40iO0.
Dear Mr. Calvert:
     In your recent opinion request to this office you
present the question as to whether or not a witness is
entitled to a fee and mileage in each case when subpoenaed
to appear before the same court on the same day in more
than one case.
     Pertinent sections of Article 35.27, Vernon's Code
of Criminal Procedure, read in part as follows:
         "(1) Any witness who has been subpoenaed,
         or has been attached and given bond for
         his appearance before any court, or before
         any grand jury, out of the county of his
         residence, to testify in a case regard-
         less of disposition of said case, and
         who appears in compliance with the obli-
         cations of such subooena or bond. shall
         be allowed seven ce;ts per mile going to
         and returning from the court,.qo.grand
         Jury, by the nearest practical convey-
         ante , and ten dollars per day for each
         day he may necessarily be absent from
         home as a witness in such case.

          “(2)

          "(3) The witness shall make an affidavit
          stating the number of miles he will have
          traveled going to and returning from the
          court, by the nearest practical conveyance,
                              -882-
Hon. Robert S. Calvert, page 2, (M-185)


            and the number of days he will have
            been necessarily absent in going to
            and returnxng from the place of trial;
            . . .W (Emphasis added)
     Construing these sections together, it is our opinion
that the Legislature intended to allow such a witness to
charge only for the necessary mileage going to and returning
from the location where court is being held and ten dollars
per diem for each day he may necessarily be absent from home
irrespective of the number of cases for which he may have
been subpoenaed. This is consistent with previous rulings
by this office that an attorney can collect only one fee
for representing indigents for each day spent at court re-
gardless of the number of indigents represented and regard-
less of the number of different courts in the county in which
he may have to appear (See Attorney General's Opinion No.
C-713 (1966)). and that a District Judge holding court in
a county outside of his district and hearing cases pending
in two or more District Courts in that county could collect
compensation in addition to his salary of only $25.00 for
each day in court rather than $25.00 a day additional for
each court in which he appeared. (See Attorney General's
Opinion No. C-339 (1964)).
                       SUMMARY
     Where a witness attends the same court under
     subpoena in four separate cases on the same day,
     Article 35.27, Vernon's Code of Criminal Procedure,
     provides only for payment of mileage going to and
     returning from "the court" and per diem for each day
     he may necessarily be absent from home irrespective
     of the number of cases f rxhich he attends "the court."
                           P/




Prepared by Monroe Clayton,
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman



                            -   883-
    ,.




Hon. Robert S. Calvert, page 3, (M-185)


Douglas Chilton
Dunklin Sullivan
Bill Allen
John Reeves
STAFF LEGAL ASSISTANT
A.J. Carubbi, Jr.