Case Information
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THE AYTORNEY GENERAL OF TEXAS
AUSTIN aa. TEXAR
Rondrable W, K, McClaln
Criminal Dlstrldt Attorney
Georgetown, Texas
Dear Sir: Opinion No.~ O-2949
Re: Does the State have the right- under the law to pay out of county wftnesses in the trial'of an of- fense as defined by Article 1157 of the Penal code?
Your letter of recent date Pequestlng our opftilon upoK the above stated questlon has been~ recelved, For ftictual Lick ground of your request we quote the following portlons of your letter;
"The constable of this County was Indicted by the Grand Jury for an offense as defined by Article 1157 of the Penal Code, o a D
"In order for the State to successfully prosecute this case It wfll be tiecetisarg td sum- mons witnesses outside of Williamson County,
"9UESTION "Does the State have the right, under the law, to pay out of county witnesses In the trial of the above offense?'
"Any sheriff, deputy sheriff; constable, deputy, const&le,~Texas Ranger, citg.marshfill, chief of pollcem8n,,or any &her officer having under his arrest or fn hla custodg~ang person as a prisoner who shall torture, torment or pun- ish such peeson by Inflicting upon him any phgsl- tial OP mental pain for the purpose.of making br attemptlng to make'such person confess to any knowledge of the commission of an offense against the laws of this State, shall be fined not less than $l,OO nor more th&n $1,000 oi+ be imprisoned In jail not to exceed one gear, *2 Honorable W. K. McClaln, page 2
'or both such fine and Imprisonment, and in aadltlon thereto the jury may state In Its verdict that the defendant should never there- after be allowed to hold any office of profit or trust under the laws of this State, or any subdivision thereof, nor any city or town thereof. Should the jury SO state in Its verdict, the court trying said case shall ren- der judgment In accordance with'said verdict and t'hereafter the defendant shall forever be barred from holding any such office."
"An offense'ls an act oromission forbladen~ by positive law, and to which is annexed, on con- vlotlon, any punlshment prescribed In this Code.
An offense which may -- not must -- be punlshable by death orbg confinement In the penltentlar~y Is a felony; every other offense Is a misdemeanor.
Felonies are elther capital or not capital.' An offense for which the highest penalty Is death Is a capital felony. Offenses are divided Into felonies and misdemeanors."
It Is clear from readlng Articles 47 and'1157 of'the Penal Code;supra, that the offense deflned,by said.Artlcle 1157, suma, is a-misdemeanor. Furthermore; the caption of Senate-.Blll:No. 8, Chapter 129 of the Acts of 2 23; 38th Legislature, page 269 (Article 1157, Penal-'Code 7 provides that a violation of said article shall be a misdimeanor. i ,
Article 5, Section 8, of the Constitution of Texas, which fixes the orlglnal jurisdiction of cases lnvolvl'ng official misconduct in the District Court, reads ln part:
"The~Distrlct Court shall have original jurlsalctlon in all criminal cases of the'grade of a felony; s . . of all mlsdeme;nors lnvolv- lng official misconduct; 0 0 0 .
The Court.of Criminal A peals~of Texas Inthe case' of Simpson v. State, 137 S.W. (2d P 1035, held thatviolations of -~ Article 1157 of the Penal Code,Constltute "officla~~mlsconduct", and that such violations come within the exclusive original jur- isdiction of the District Court.
Article 1036, Code of Crlmlnal Procedure, authorizes and provides for compensation of any witness who may have been recognized, subpoenaed, attached and given bond for his *3 Honorable W. R, McCZain, page 3
appearance before any court OP before any Grand Jury, out of the county of hLs residence to testify in a felony case, and who appears in Compliance with the obligations of such recog-, nizance or bond; thls'statute fur,ther provides wftness fees to be allowed only to such witnesses as may have been summoned on the sworn written application of the Stat,e's attorney OP th8 defendant or his attorney as provided in APtlCl8 463; Code of Criminal Procedure, which sworn application must be made at the~tlme of the-procuring of the subpoena, attachment for, or recognfzance of, the witness.
Article 1036, Code of Criminal Procedure~supra, ap- plies only to out of'county witnesses in felony cases before the District Courts and has no applfcation as to witnesses in misdemeanor cases in the District Courts.
After a thorough search of the Statutes, we are unable to ffnd any authority for the State compensating witnesses in misdemeanor cases of the character with which we are here cone emed o
Trusting that the foregoing disposes of your inquiry, we remain
Yours very truly ATTORNEY GENERAL OF TEXAS By s/D, Burle Davlss D, Burl8 Daviss Assfstant APPROVED JAN 4,~ 1941
s/Gerald C, Mann
ATTORNEY GENERAL OF TEXaS
Approved Opinion Committee By s/BWB Chairman