Untitled Texas Attorney General Opinion ( 1972 )

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AURTPN, %EXZ.S 78111
CRAWYORIP C. MAW-PIN
ATTORNEY DlcNVERAx.
January 5, 1972
Hon. Wayne Burns Opinion No. M-1038
District Attorney
Howard County Courthouse Re: Is the State Comptroller
Big Spring, Texas 79720 authorized under Art. 24.28,
V.C.C.P., to pay fees of a
witness summoned and who
appeared and testified pur-
suant to that Article, the
witness being a resident
of the State of Georgia which
has not adopted the Uniform
Act to Secure the Attendance
of Witnesses from Without
the State in Criminal Pro-
ceedings (Art. 24.28, V.C.
Dear Mr. Burns: c. P. )?
Your request for an opinion asks the following question:
Is the State Comptroller authorized under Art. 24.28,
V, C. C. P. , to pay fees of a witness summoned and
who appeared and testified pursuant to that Article,
the witness being a resident of the State of Georgia
which has not adopted the Uniform Act to Secure the
Attendance of Witnesses from Without the State in
Criminal Proceedings (Art. 24.28, V.C.C.P.)?
Article 24.28, Vernon’s Code of Criminal Procedure, is a Uniform Act to
secure attendance of witnesses from without the State to testify in criminal pro-
secutions and grand jury investigations. Section 4 of the Article provides as
follows:
“Sec. 4. If a person in any State, which by its laws
has made provision for commanding persons within
its borders to attend and testify in criminal prosecu-
tions, or grand jury investigations commenced or
about to commence, in this State, is a material
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Hon. Wayne Burns, page 2 (M-1038)
witness in a prosecution pending in a court of record
in this State, or in a grand jury investigation which
has commenced or is about to commence, a judge of
said court may issue a certificate under the seal of
the court stating these facts and specifying the number
of days the witness will be required. Said certificate
may include a recommendation that the witness be
taken into immediate custody and delivered to an officer
of this State to assure his attendance in this State. This
certificate shall 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 attend and testify in
this State he shall be tendered the sum of ten cents
a mile 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 accordance with the provisions of the
summons shall not be required 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 with-
out good cause to attend and testify as directed in the
summons, he shall be punished in the manner provided
for the punishment of any witness who disobevs a summons
issued from a court of record in this State. ” -.
In Attorney General’s Opinion No. C-579 (1966) it was held:
“Art. 35.27 does not authorize payment of witness
fees to a witness residing outside the State of Texas
with a Texas subpoena, unless said subpoena is issued
in accordance with Art. 24.28, V.C.C. P.”
In Attorney General’s Opinion No. C-720 (1966) it was held that:
“The procedure for payment of the out of state witness
is the same as for any other out of county witness.
Article 24.28, Sec. 4, V.C.C.P., merely changes the
amount of compensation such witness is entitled to receive. ”
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. a
Hon. Wayne Burns, Page 3 (M-1038)
In the instant matter, these facts are noted: (1) The witness was
subpoenaed in accordance with Article 24.28; (2) The witness did appear
in obedience to the subpoena and did testify in a felony case; (3) The State
of Georgia has not adopted the Uniform Act to secure attendance of out of
state witnesses.
The first paragraph of Section 4 of Article 24.28 provides the procedure
for subpenaing a witness to testify in a criminal prosecution, from any State
which by its laws has made provisions for commanding persons within its
borders to attend and testify in criminal prosecutions in this State.
On the other hand we find no law which prevents the State of Texas from
subpoenaing a witness from other states merely because they have not adopt-
ed the Uniform Act.
The second paragraph of Section 4 of Article 24.28 provides for the
amount to be tendered a witness so summoned, and provides penalties if
the witness fails to appear and testify after coming into the State.
Irrespective of the fact that Georgia has not adopted the Uniform Act,
all the procedures as set out in Article 24.28 were followed, and the witness
obeyed the subpoena’ in all .respects and appeared and testified.
Even though the State of Georgia from which State the witness was sub-
poenaed has not adopted the Uniform Act to secure the attendance of witnesses
from without the State in a criminal proceeding, we hold that if the procedure
is followed as set out in Article 24.28, by our State officials, and the witness
appears and testified, then the witness is authorized to be paid witness fees
and mileage. This is in accord with Attorney General’s Opinions Nos. C-579
and C-720, supra.
SUMMARY
If a witness is subpoenaed to appear and testify under
the provisions of Article 24.28, V.C.C. P., in a criminal
prosecution, and the witness obeys the summons, the witness
is entitled to be paid mileage and witness fees.
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L .
Hon. Wayne Burns, page 4 (M-1038)
Prepared by John H. Banks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bart Baling
Sam Jones
Max Flusche
Lonnie Zweiner
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