Case Information
*1 OFFICE OF THE IQrrORNEY GENEaAL OF TEXAS
AUSTIN
Honorable Forrester Emcock
Cri&al Diatr5,ot Attorney
Viaxahachie ) Texas
Dear Sir:
the above stat
c. P., R. c. S. tied in a criraind Court, entitled to he api>ears in tiie ?.<y District Clerk is cotironteit with the above problem wherein a witness was called by the State for the Deeornber Tern of Court, aad by agreement said case which was on cdl for the December Tern was passe6 to a day definite *2 ,Zonorable Forrester Bancock, Page 2
in the Earoh Tom of my Criminal District.
This witness in o_uestion, by reason ‘Court. of the premises, is forced to Eke two cam- plete trips to the court, and vie are con- fronted viiththe problem as to whether or not he can b;e reimbursed for the saxa."
Article 1036 of the Code of Criminal Procedure reads, in part,'as follows:
"1. Any witness who may have been recognized, subpoenaed or 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 felony case, end who appears in compliance with the obligatioris of such recognizance orbond, shall be elloweed his actual traveling ex- penses, not exceeding four cents per mil.e going to end returning from the court or grand jury, by the nearest practi’cal uo=veyznce, and tv.0 dollars per day for each day he may necessarily be absent from home as a witness in such case.
Vitnesses shall receive from the State, for attendance upon district aourts end grand juries in counties other than that of their residence, .in obedience to subpoenas issued under the provisions of law their actual traveling exnenses; not exceeding~four cents . per mile, going to and returning from the
court or grand‘jury, by the nearest practical conveyancei snd tvio dollars per day for each day~they may necessarily be absent from home as a witness, to~be paid as now provided by law; and the,fore;ian of the grand jurv or the district clerk, shall issue to such d&ess certificates therefor, after deducting there- from the amounts advanced by the oryioers serving sei& subpoenas; as.sbovn by the returns on said subpoenas; which certificates shall be approved by the district ju≥ and recorded by the .olerk in a well-bound'book kept for that purpose; provided, that when en indictment - can be found fro= the evidence taken before an
inQuest or examining trial; no subpoena or attachzent shall. issu& for a viithess who resides out of the county in which~the prosecution is *3 iiinGcebl8 i-orrester tincook, Pege 3
=eneing to ap~ecil before a grsnd jury. ';:‘hen the grand jury shall certify to the district judge that sufficient evidence cannot beg secllred upon~v.Ctich to find an indictment, exca t 230~ testimay of I;onresibent dtnesses, the 3
istrict judge may tive subpoenas issued ss'2rovided for by.low 'to other Counties for dtness,to testify b&fore the grand jury not to exceec!.one witness to any one fact, nor more than three ~~itnesses to any one CESO 2eading before the grand jury. (As amezded $icts 1927, 40th Lee., p. 113,'ch. 75, 8 1.)
Y3ec. 2. Zitness fees shall be aLlov:ed only to such witnesses as may h&ve been SIXI- moned on the sworri written application of the State's attorney or ths defendant or his attpr- '. ney as prorldsd in,Article 463,~Code of Criminal
Procedure, which svdrn application must be Ymede at th8 time of the ?roouriiq of the subpoena, attachment for, or recognizance of, the nitness. ,The judge to whom an application for attsctient is ade, may, in his~discretion, grant or refuse stich~applicatian,~when presented in term time.
(As am8nded Acts 1931, 42nd Leg., p. 239, ch.
143 t3 3.)
"Sec. 3. Sefore the close of each term~of District Courti the ivitnass shall mke an &Pi- davit stating the nubor of miles he y)iil have . traveled going to and returdng from the court,
by the nearest prac'tical conveyancei anld the number of days he till1 have been necessarily absent in going to and re~turaing from the place of trial; which affidavit shall be~filed with the papers of the case. No dtness shall receive p3y for his services as a witness in more than one case at any done tarm of the court. Fees shsll not be allone& to more than t&r0 witnesses to the s3me fact, unless the judge before whvz the caus8 is tried shall, after such case has been tried, continued, or,otherwise din?osea of, certify that sach'witnesses were necessary in the cause.
To witness subpoenaed, recognized, or at- tached for th8 purpose of proving the general reputation'of ,the defendant'.shaJl be allowed *4 . .
E0norabl.e For&ester Ii3ncocX, ?aL;e 4
the bdnefits hereof , provided t&e trial judge :~y in,his discretion, allaw pay to not more tkcn tvJo chzrecter witnesses for the State 3nd to not more than <V:O oharaoter witnesses for t2.e defenthat . (.$ cz2endod :>cts 1931, hzna Z39, ch. 143, 6 S.)* Leg.,,p.
In an opizion rendered by this Bepnrtment on ~ebruory 21, 1935, v:ritten by Eoi-rorzble Leoa 0. Xoses, i,s;i3.<mt j+ttorney General, aBdresse& to the District Cie~k Sweetuate- TeXEiS, it Tiias h3$d thst no witaess e~a~l'receive pni'for his services a3 s witriessin more ,thzn one case,at.any oze term of court; however,~in the 0-r e;lt the witness13 instruoteb by the Juaga to return at the 3ame term of the.District Court at which~he was s~mimone d ana on the same os3e;the v:itness would be' entitled'to' his fee and mileage for a secon.6 trip.
.This department hela in Opinior? Xo. O-EM that 3n out of county ritness 10, a felony'case is .entitlcd to tv:o Oollors aa his ectual traveling,expenses not exoeed- ins four cents per mile.goizq to and returning froztl?e co(L-t for a second trip to the court hrir;g the 33me term and in t&e same case.
Section 3 of Article 1036, supra, proviGe3: Wo witness shall receive'p.&y for his sezdces as a witness in more'than one case at any one term of court.?
‘Zzievor, as abave indicatea this Statute doss not prohibit a witness receiving tw0 dollars per Davy and his actual traveling'expense* not exeeea+g four cents _oar mile going to sd returning from the co'urz for ;i seeond,trip to the cocrt curing the same term a& in the sane case.
;irticle 1096, Code Of 'Crinrinal PrcceZure, sWp-Ps, sgecifically grovides that any aitness who &y,i.kQe been . . recogaizea, subpoenaed qr attached, and given bona for his
ap,gearance before any oout, or beeore by grar& Jury, out of tk.3 county of his residence to,testify in a felony Csss, ad v.:%o a,3pears in,~cd, -~9lianoe with the o~dligztions of such reso&zance or bond, shall 'oe allcwed,his sctuel traveling expsnses, ,aot exceeding four cents per miifi going to fild from the coart or @zrd juzy, by the necires'~ XaC- returning ti3al conveysnc0, an&two dollars per day for each Oay he my necessarily,be absent from hams a3 a witness +. such *5 E3zorable ~orrester~&ncock, Page 5 Said Statutes further provides that such witness
case. shall receive from the State, for the &ten&once upon the District Court and gr3nb jury in counties other tk.313 th2t of his residence, and obediende to subnoencs iseued‘under the provisions of law his sctual traveiing ex3enses, eot exceeding four cents per nilei going to and Gturning frsz the court or gracand jury, by the nearest practical coilveyance, amI two dollars per day for each day I.32 say necessarily be absent fron 1103~3 as a witness, to be psi& CE now provided by law.
In view of Article 1036, Cockof Criminal Pro- cedure, supra, you are respectfully advised that it is the opinion of this depsrtnent that your question should be answered in the affirmtive, ad it is so answered.
Trusting that the foregoing fully amxeru your iiquiry, yle remin
Pours very truly AT'fO~%TZY GiZ&E~~ OF TZXQS &f-- BY Ar~&elf William3 Assistant APPROVEDMAR 9, 1940