Do you have to pay the witness fee for someone subpoenaed to a deposition, not just to court?

Plain-English summary

A state representative asked the Attorney General whether the witness fee in section 22.001 of the Civil Practice and Remedies Code had to be paid to a person who was subpoenaed to testify somewhere other than the courthouse, such as at a deposition. The 1993 amendment (House Bill 887) had set a flat fee of $10 for each day a witness "attends court," and the question was whether "court" meant only the courthouse.

The office said the fee was owed regardless of location. It read the word "court" in the statute not in the narrow sense of the courthouse but as including any evidentiary proceeding within the lawsuit. Looking at the history of the fee provision and its predecessor, former V.T.C.S. article 3708, the office found that the old statutes had grouped witnesses, evidence, and depositions together and had not distinguished between trial testimony and deposition testimony. Because a deposition transcript can later be read into evidence at trial, the office treated a witness who appears under subpoena at a deposition as "attending court" for purposes of section 22.001.

So the office concluded that witness fees under section 22.001 must be paid to all persons subpoenaed to appear and give testimony, regardless of the location set in the subpoena. The party who summons the witness pays the one-day fee at the time the subpoena is served. The same rule applied to a person compelled to produce records in addition to appearing as a witness. The office also noted that, under Rule 179, a witness cannot be fined for failing to attend, and no attachment issues in a civil suit, until the subpoenaing party shows by affidavit that all lawful fees have been paid or tendered.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The witness-fee statute and the Texas Rules of Civil Procedure on subpoenas and depositions have been amended since 1995, and the $10 daily figure reflects the law as it stood then. Read this page for how the office construed "attends court" in 1995, and check the current text of section 22.001 of the Civil Practice and Remedies Code and the current Rules of Civil Procedure before relying on any fee amount or procedure mentioned here.

What the opinion meant for those who asked

For Representative Thompson (the requestor): The office answered that section 22.001 witness fees had to be paid to all persons subpoenaed to appear and give testimony, regardless of the location set in the subpoena. It rejected the suggestion that the 1993 amendment tacitly excluded witnesses subpoenaed for a deposition away from the courthouse.

For parties and attorneys serving subpoenas: Under the opinion, the one-day witness fee was due at the time the subpoena was served, including when the testimony was a deposition at a place other than the courthouse. The opinion also pointed to Rule 179: a witness could not be fined for failing to attend, and no attachment would issue in a civil suit, until the subpoenaing party showed by affidavit that all lawful fees had been paid or tendered.

For subpoenaed witnesses, including those producing records: The opinion treated a person compelled to produce records in addition to appearing as a witness as entitled to the witness fee at the time of service, the same as any other subpoenaed witness.

Common questions

If I subpoena someone for a deposition, do I still owe the witness fee?
Yes. The opinion read section 22.001 to require the fee for anyone subpoenaed to appear and give testimony, regardless of location, which includes a deposition taken somewhere other than the courthouse.

When does the witness fee have to be paid?
At the time the subpoena is served on the witness. The statute says the party who summons the witness pays that witness's one-day fee when the subpoena is served.

Does "attends court" mean only the courthouse?
No. The office read "attends court" broadly to include any evidentiary proceeding within the lawsuit, such as a deposition, not just appearance at the courthouse.

What happens if the fee isn't paid?
Under Rule 179 of the Texas Rules of Civil Procedure, a witness cannot be fined for failing to attend, and no attachment issues in a civil suit, until the subpoenaing party shows by affidavit that all lawful fees have been paid or tendered.

Does someone subpoenaed only to produce records get the fee?
The opinion said a person compelled to produce records in addition to appearing as a witness is entitled to the witness fee at the time of service.

Background and statutory framework

Section 22.001 of the Civil Practice and Remedies Code set a flat fee of $10 for each day a witness attends court, payable by the party who summons the witness at the time the subpoena is served, and required that the fee be taxed in the bill of costs. House Bill 887, enacted in the 73d legislative session in 1993, amended the section to simplify and slightly increase the fee and to extend the distance of privileged travel for a witness from 25 miles to 150 miles. A companion provision, section 22.002, addressed the 150-mile subpoena range.

To decide whether "attends court" reached out-of-courthouse testimony, the office traced the fee provision's predecessor, former V.T.C.S. article 3708, and the related repealed articles that had combined witnesses, evidence, and depositions without distinguishing trial testimony from deposition testimony. It noted that Rule 201 of the Texas Rules of Civil Procedure, derived in part from former article 3754, compels a person to appear and give testimony by deposition in the same manner as a witness compelled to testify in court, and that a deposition transcript may be read into evidence at trial (Rule 207; Texas Rule of Civil Evidence 801(e)(3); Rule 204(4)). On that basis the office concluded a subpoenaed witness at such a proceeding is "attending court" under section 22.001(a). Reading the statute by its terms and consulting its legislative history (the House Committee bill analysis) under the usual rules of construction (Government Code section 311.011; Linick v. Employers Mut. Casualty Co.; Mathews Const. Co. v. Jasper Hous. Const. Co.), the office held the fee owed to all subpoenaed witnesses regardless of location. The requirement that fees be paid before a witness may be fined or attached came from Rule 179, Texas & Pacific Ry. v. Hall, and Kieffer v. Miller.

Citations

Statutory and rule provisions discussed:

• Civil Practice and Remedies Code § 22.001 (witness fee) and § 22.002 (subpoena range)
• Government Code § 311.011 (construction of words and phrases)
• Texas Rules of Civil Procedure rules 201 (depositions), 204(4), 207 (use of depositions at trial), and 179 (payment of fees before fine or attachment)
• Texas Rule of Civil Evidence 801(e)(3)
• Former V.T.C.S. articles 3708 (witness fees) and 3754 (predecessor to Rule 201)
• House Bill 887, Act of April 28, 1993, 73d Leg., R.S., ch. 103

Cases discussed:

• Texas & Pacific Ry. v. Hall, 19 S.W. 121 (Tex. 1892)
• Kieffer v. Miller, 560 S.W.2d 431 (Tex. Civ. App.-Beaumont 1977, writ ref'd n.r.e.)
• Linick v. Employers Mut. Casualty Co., 822 S.W.2d 297 (Tex. App.-San Antonio 1991, no writ)
• Mathews Const. Co. v. Jasper Hous. Const. Co., 528 S.W.2d 323 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.)

Other authority:

• House Comm. on Judicial Affairs, Bill Analysis, H.B. 887, 73d Leg. (1993); 31 Tex. Jur. 3d Discovery and Depositions §§ 49, 65 (1994)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0342
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0342.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 7, 1995

Honorable Senfronia Thompson
Chair
Committee on Judicial Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-342

Re: Whether witness fees under section 22.001, Texas Civil Practice and Remedies Code, must be paid to a person who is subpoenaed to appear and give testimony at a location other than the courthouse (RQ-667)

Dear Representative Thompson:

You have requested an opinion from this office construing section 22.001, Texas Civil Practice and Remedies Code. Section 22.001 was amended by House Bill 887 during the seventy-third legislative session, to require that a flat fee of $10 be paid to witnesses who were subpoenaed to appear in court. Act of April 28, 1993, 73d Leg., R.S., ch. 103, 1993 Tex. Sess. Law Serv. 192, 193. Pursuant to this amendment you ask whether witness fees under the section must be paid to a person who is subpoenaed to appear and give testimony at a location other than a courthouse. Section 22.001 provides:

(a) Except as provided by Section 22.002,[1] a witness is entitled to 10 dollars for each day the witness attends court. This fee includes the entitlement for travel and the witness is not entitled to any reimbursement for mileage traveled.
(b) The party who summons the witness shall pay that witness's fee for one day, as provided by this section, at the time the subpoena is served on the witness.
(c) The witness fee must be taxed in the bill of costs as other costs.

Civ. Prac. & Rem. Code § 22.001 (footnote added). You suggest that the legislative intent of section 22.001 was to tacitly exclude payment of such fees to witnesses who were subpoenaed for deposition at a place other than the courthouse. However, we believe that the word "court," as used in this provision, does not have the narrow meaning of the courthouse but includes any evidentiary proceeding within the lawsuit.

We begin our analysis by considering the scope of the term "attends court" and similar expressions in section 22.001 and its predecessors. An analysis of the history of the predecessor of section 22.001, V.T.C.S. article 3708, and its connection with the other articles that were moved into part II, section 9, of the Rules of Civil Procedure is instructive. Former V.T.C.S. articles 3704 to 3769 (repealed by Act of May 12, 1939, 46th Leg., R.S., ch. 25, § 1, 1939 Tex. Gen. Laws 201, 201) addressed witnesses and evidence, as well as depositions. These provisions did not distinguish between trial and deposition testimony. Article 3708 addressed fees of witnesses and provided that

[w]itnesses shall be allowed a fee of one dollar for each day they may be in attendance on the court, and six cents for every mile they may have to travel in going to and returning therefrom, which shall be paid on the certificate of the clerk, by the party summoning them; which certificate shall 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.

We note that although this provision has been amended and rewritten, it has not been substantively changed. Such continuity suggests that the underlying purpose of this provision has not been altered.

Further, rule 201 of the Texas Rules of Civil Procedure, which provides that "[a]ny person may be compelled to appear and give testimony by deposition[*] in a civil action" (footnote added), was originally derived in part from former article 3754 unchanged and originally provided in part: "Any person may be compelled to appear and depose in the same manner as witnesses may be compelled to appear and testify in court. . ."[3] Tex. R. Civ. P. 201 historical note (emphasis added); see V.T.C.S. art. 3754 (repealed by Act of May 12, 1939, 46th Leg., R.S., ch. 25, § 1, 1939 Tex. Gen. Laws 201, 201). This provision seems to indicate that witnesses compelled to appear for the purpose of being deposed were entitled to the same fee as those compelled to appear to testify at the courthouse. Over the years rule 201 has been amended by the supreme court; the changes to the rule have not overruled the entitlement to witness fees. See Tex. R. Civ. P. 201 historical note (Vernon 1976 & Supp. 1994). As stated above, former V.T.C.S. articles 3704 to 3769 (repealed 1939) combined all provisions concerning witnesses and evidence with those addressing depositions, making no distinction between witnesses testifying during trial and those providing deposition testimony at locations other than the courthouse. Further, a deposition transcript may be read into evidence at trial, Tex. R. Civ. P. 207; see Tex. R. Civ. Evid. 801(e)(3), where, in most instances, the parties have reserved their evidentiary objections, see Tex. R. Civ. P. 204(4). We conclude that at any such proceeding, witnesses appearing pursuant to a subpoena are "attend[ing] court," pursuant to Civ. Prac. & Rem. Code § 22.001(a), and so are entitled to the payment of witness fees at the time of service.

Similarly, an individual who is compelled to act in response to a subpoena for the production of records, in addition to appearance as a witness, is entitled to a witness fee at the time of service. A witness may not be fined for failure to attend court, nor shall attachment issue in a civil suit, until it is shown to the court, by affidavit of the subpoenaing party or the party's agent or attorney, that all lawful fees have been paid or tendered to the witness. Tex. R. Civ. P. 179; Texas & Pacific Ry. v. Hall, 19 S.W. 121, 122 (Tex. 1892); Kieffer v. Miller, 560 S.W.2d 431, 432 (Tex. Civ. App.-Beaumont 1977, writ ref'd n.r.e.).

Furthermore, the legislative history of section 22.001 indicates that the amendments to the section were made in an effort to

simplify the computation of and slightly increase the fees a witness is entitled to under the Civil Practices [sic] and Remedies Code. This bill also extends the distance of privileged travel for a witness traveling to and from a proceeding from 25 miles to 150 [miles].

House Comm. on Judicial Affairs, Bill Analysis, H.B. 887, 73d Leg. (1993). When ascertaining legislative intent, words and phrases shall be read in context and construed according to rules of grammar and common usage. Linick v. Employers Mut. Casualty Co., 822 S.W.2d 297 (Tex. App.-San Antonio 1991, no writ); Gov't Code § 311.011. Further, where language of the statute is unambiguous and its meaning is clear, effect is given to the statute according to its terms. Mathews Const. Co. v. Jasper Hous. Const. Co., 528 S.W.2d 323 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.). Thus, we conclude that witness fees under section 22.001, Civil Practice and Remedies Code, must be paid to all persons who are subpoenaed to appear and give testimony, regardless of the location set in the subpoena.

SUMMARY

Witness fees under section 22.001, Texas Civil Practice and Remedies Code, must be paid to all persons who are subpoenaed to appear and give testimony, regardless of the location set in the subpoena.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Toya Cirica Cook
Assistant Attorney General

[1] Section 22.002 provides that "[a] witness who is represented to reside 150 miles or less from a county in which a suit is pending or who may be found within that distance at the time of trial on the suit may be subpoenaed in the suit."

[*] According to Texas Jurisprudence, "[t]he term 'deposition' is sometimes used in a broad sense to describe any written statement verified by oath, but in its more appropriate and technical sense, the meaning of the word is limited to the transcribed testimony of the witness given in the course of a judicial proceeding, in advance of trial or hearing, upon oral examination or in response to written interrogatories, where an opportunity is given for cross examination." 31 Tex. Jur. 3d Discovery and Depositions § 49 (1994) (footnote omitted); see 3 Am. Jur. 2d Affidavits § 1 (1986) (distinction between affidavit and deposition). "On proof of service of a notice to take a deposition, written or oral, the clerk or any officer authorized to take depositions and any certified shorthand reporter must immediately issue and cause to be served on the witness a subpoena directing the witness to appear before the officer at the time and place stated in the notice for the purpose of giving the witness' deposition." 31 Tex. Jur. 3d Discovery and Depositions § 65 (1994) (footnote omitted).

[3] Rules 201, 202, and 203 as originally adopted contained the provisions of articles 3754, 3755, and 3756, unchanged. See Tex. R. Civ. P. 201 historical note; see also id. Rules 202-203 historical note (repealed 1971).