Untitled Texas Attorney General Opinion ( 1965 )

May 3, 1965 Hon. Henry Wade Opinion No. C-430 District Attorney Dallas County1 Re: Necessity of making a Dallas, Texas tender of the witness fee and six cents per mile for travel expenses Dear Mr. Wade: under facts submitted. Your letter requesting an opinion of this office reads In part as follows: "We are in receipt of the following questions from the Honorable Moore Lynn, County Auditor of Dallas County, Texas, which we submit to your of- fice with the accompanyingbrief and respecttilly request your opinion: "1. In subpoenainga witness in a civil suit, who is in fact the party defendant to the suit, Is it necessary to tender said wit- ness the sum of $1.00 as a witness fee in order to later be in a position to subject said witness to the contempt penalties as set out in Rule 179 of the Texas Rules of Civil Procedure? "2. Alternatively,if the answer to question No. 1 is 'Yes', then is it necessary In addition to the $1.00 submitted to the witness, to further submit the sum of 64 per mile for travel expenses in going to and from the court?" Article 3708, Vernon's Civil Statutes, provides aa follows: “Witnesses shall be allowed a fee of one dollar for each day they may be in attendance -2035- Hon. Henry Wade, page 2 (C-430) on the court, and six cents for every mile they have to travel In going to and returning there- from, which shall be paid on the certificateof the clerk, by the party summoning them; which certificateshall be given on the affidavit of the witness before the clerk. Such compensation and mileage of witnesses shall be taxed In the bill of costs as other costs.' Rule 179 of the Texas Rules of Civil Procedure provides in part as follows: 9, .If any witness, after being duly . . summoned, shall fail to attend, such witness may be fined by the court as for contempt of court, and an attachmentmay issue against the body of such witness to compel the attendance of such witness; but no such fine shall be im- posed, nor shall such attachment issue in a civil suit until it shall be shown to the court, by affidavit of the party, his agent or attorney, that all lawful fees have been paid or tendered to such witness. It is well settled In Texas that a party to a suit is not entitled to witness fees. Cause v. Edminston;_ 35 -_ Tex. 69 (1871); Texas Midland R. Co. v. Parker, QQ s.w.583 (Tex,Civ;App. 1902); Altg It Callaghan, 144 S W 31166 (Tex.Civ.App.1913); Villanueva "v.Rgdrigues, 300 S.W.21' d 668 '. (Tex.Clv.App.,error ref. n.r.e. 1990 , The "paid or tendered" clause after the semi-colon in the last sentence of Rule 179 does not apply to party defendants, as that portion provides that "all lawful fees" must be paid or tendered. It is our opinion that no payment or tender is neces- sary of any sum as a witness fee to the party defendant before the penalties Imposed by Rule 179 become operatlve If said party has been duly summoned and failed to appear. The party defendant is not entitled to a witness fee; therefore, said party subjects himself to contempt of court or attachment proceedingsunder Rule 179 if he fails to appear after being duly summoned. As the answer to your first question Is "no," your second question is also answered in the negative as a party defend- ant is not entitled to witness fees. SUMMARY No payment or tender is necessary of any sum as a witness fee to the party defendant before the -2036- Hon. Henry Wade, page 3 (C-430) penalties imposed by Rule 179, Texas Rules of Civil Procedure, become operative if said party has been duly summoned and failed to appear, as a party to a suit is not entitled to witness fees. Very truly yours, WAGGONER CARR Attorney General Byk : & Gordon Houser Assistant GH:cg:mkh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Malcolm Quick Carlo8 Vela Terry Goodman Robert Norris APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -2037-