Opinion No. 74-115 (1974) Ag ( 1974 )

STATE WITNESS — — FEES A state witness may receive a fee from the court fund when said witness appears pursuant to a subpoena issued by the district attorney, provided the expenditure is approved as prescribed by 20 O.S. 1304 [20-1304](b) (1971). The Attorney General is in receipt of your recent letter wherein you ask, essentially, the following question: Can a state witness, who is either poor or coming from a place out of the county, draw fees from the court fund if the subpoena is issued by the District Attorney's office? Title 28 O.S. 82 [28-82] (1971) provides as follows: "All witnesses on behalf of the state who attend before the district or any other court, pursuant to an undertaking or in obedience to a subpoena, in any criminal case or proceeding, or attending a preliminary examination or any other examination pursuant to a subpoena before any magistrate, and in civil cases brought by the State of Oklahoma on relation of the District Attorney, or by the board of county commissioners on behalf of the county, shall be paid the fees and mileage provided for by law from the court fund of such county. In the event such fees and mileage are recovered from and paid by the defendant, the clerk or judge of such court shall pay the same into the court fund of such county from which said fees were paid." (Emphasis added) Further, 22 O.S. 706 [22-706] (1971), provides as follows: "The county attorney may in like manner issue subpoena for witnesses within the State, in support of an indictment or information, to appear before the Court at which it is to be tried." The statute governing expenditures from the court fund in 20 O.S. 1304 [20-1304] (1971). That section provides in relevant part: "(a) Claims against the Court Fund shall include only such expenses as may be lawfully incurred for the operation of the court in the county. Payment of the expenses may be made after the claim therefor is approved by the district judge who is a member of the governing board of the Court Fund and either the local court clerk or the local associate district judge who is a member of said governing board. "(b) The term "expenses" shall include the following items and none others: "(11) Any other expenses now or hereafter expressly authorized by statute." It is apparent that 28 O.S. 82 [28-82] (1971), which was amended in 1970 to authorize the prescribed payment specifically from the court fund, would fall within the provisions of 20 O.S. 1304 [20-1304](b)(11) (1971), supra. The procedures provided for in 1304 would be a prerequisite for payment from the court fund. It is, therefore, the opinion of the Attorney General that your question should be answered in the affirmative. A state witness may receive a fee from the court fund when said witness appears pursuant to a subpoena issued by the district attorney, provided the expenditure is approved as prescribed by 20 O.S. 1304 [20-1304](b) (1971). (Steven E. Moore)