Does a Texas prosecutor need a judge's approval to advance a witness's travel expenses?

Plain-English summary

Brett Ligon, the Montgomery County District Attorney, asked the Attorney General about the mechanics of paying out-of-county witnesses. The county had given the DA's office a credit card to pay travel costs up front for nonresident witnesses subpoenaed in criminal cases, with the bill paid from the county's court-operations budget. Judges on the county's court administration committee had questioned whether the DA could advance those payments without the presiding judge's prior approval. So the DA asked two things: does article 35.27 of the Code of Criminal Procedure require the judge's approval before advancing the funds, and can a court later refuse to approve a witness's reimbursement request just because the court did not preapprove the advance?

On the first question, the opinion said no. Article 35.27 sets up reimbursement: a nonresident witness who is subpoenaed or requested in writing and who later files a sworn application is reimbursed by the state for reasonable travel, meal, and lodging expenses, with the application presented for approval by the presiding judge and then paid by the Comptroller. Section 7 separately lets the county, at the prosecutor's request, advance funds from its treasury to a witness who will be entitled to reimbursement, capped at what is reasonably necessary for the witness to attend. Reading the plain text, the opinion found nothing requiring judicial preapproval of these advances; the judge's and Comptroller's role comes later, when the witness files the sworn application after the fact. Whether a DA advances the funds at all is left to county policy.

On the second question, the opinion explained that the reimbursement right does not depend on preapproval of the advance. A qualifying nonresident witness who files the sworn application is entitled to state reimbursement, and when the county has advanced the expenses, the witness's reimbursement rights are assigned to the county. So a county that properly advances travel expenses is entitled to reimbursement from the state as the witness's assignee, whether or not the advance was judicially preapproved. The opinion noted that nothing stops a county from requiring its prosecutors to seek the court's tentative approval first, but the statute does not mandate it.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The district attorney and the county (as the opinion held for them): The opinion told the DA that article 35.27 did not require the presiding judge's preapproval before advancing a nonresident witness's travel expenses, and that whether to make such advances was a matter of county policy.

The presiding judge and the Comptroller (as the opinion described their role): The opinion placed their approval role after the fact, when the witness files the sworn application for reimbursement, not as a gatekeeping step before the county advances funds.

On the county's reimbursement (as the opinion described it): The opinion treated a county that properly advances funds as the witness's assignee, entitled to reimbursement from the state regardless of whether the advance was judicially preapproved.

Common questions

Does a Texas DA need a judge's sign-off before paying a witness's travel costs up front?
According to the opinion, no. Article 35.27 does not require judicial preapproval of a county's advance of nonresident-witness travel expenses.

Can a court deny a witness's reimbursement just because the advance was not preapproved?
The opinion concluded the reimbursement right does not turn on preapproval. A qualifying witness who files the sworn application is entitled to reimbursement, and the county that advanced the funds collects it as the witness's assignee.

Who actually approves the reimbursement?
The opinion explained that the witness submits a sworn application, the presiding judge approves it, and the Comptroller pays it if it complies with article 35.27, all after the travel, not before the advance.

Can a county still require its prosecutors to get the judge's approval first?
Yes. The opinion noted that nothing in article 35.27 prevents a county from requiring its prosecutors to seek the court's tentative approval before advancing funds; the statute simply does not require it.

Background and statutory framework

Under article 35.27, section 1(a) of the Code of Criminal Procedure, a nonresident witness who is subpoenaed or requested in writing to testify in a criminal proceeding is reimbursed by the state for reasonable and necessary transportation, meal, and lodging expenses. Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (West 2006). The witness submits a sworn application to the Comptroller, id. § 2; id. § 4, capped at state-employee rates, id. § 2, which the presiding judge approves, id. § 4, and the Comptroller pays if it complies with the article, id. § 5. Section 7 lets the county, at the prosecutor's request, advance funds to a witness who will be entitled to reimbursement, in an amount not exceeding what is reasonably necessary to enable attendance, and makes the county the witness's assignee for reimbursement. Id. § 7. The opinion also noted the Uniform Act for securing out-of-state witnesses. Tex. Code Crim. Proc. Ann. art. 24.28, § 1 (West 2009); id. § 4(b).

The opinion construed these provisions by their plain text. R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011).

Citations

Cases:

• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (West 2006)
• Tex. Code Crim. Proc. Ann. art. 35.27, § 2
• Tex. Code Crim. Proc. Ann. art. 35.27, § 4
• Tex. Code Crim. Proc. Ann. art. 35.27, § 5
• Tex. Code Crim. Proc. Ann. art. 35.27, § 7
• Tex. Code Crim. Proc. Ann. art. 24.28, § 1 (West 2009)
• Tex. Code Crim. Proc. Ann. art. 24.28, § 4(b)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0888
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0888.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 24, 2011

The Honorable Brett W. Ligon Opinion No. GA-0888
Montgomery County District Attorney
9th Judicial District Re: Whether a prosecutor must obtain the approval of
207 West Phillips, Second Floor the presiding judge before advancing funds for travel
Conroe, Texas 77301 expenses to a nonresident witness (RQ-0969-GA)

Dear Mr. Ligon:

You ask whether a county prosecutor in a criminal case must obtain the presiding judge's approval before advancing county funds for travel expenses to a nonresident witness.[1] You inform us that the county has provided you with a credit card to facilitate the advance payment of travel expenses for nonresident witnesses who are subpoenaed to testify in the county's criminal cases. Request Letter at 1. In these instances, you inform us, the county pays the credit card bill with funds from the county's budget for "court operations." Id. You further state that the judges serving on the county's office of court administration committee have questioned the propriety of the district attorney's advance payment of witnesses' travel expenses without prior approval from the judge presiding over the case. Id. at 1-2.

You first ask whether "article 35.27 of the Texas Code of Criminal Procedure require[s] that a district attorney obtain the approval of the judge presiding over a case in a county or district court before advancing funds to a nonresident witness for the travel expenses of the witness[.]" Id. at 1. When construing a statute, courts initially focus on a statute's text, "so as to give effect to the Legislature's intent as expressed in its plain language." R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). Under article 35.27, section (1)(a) of the Code of Criminal Procedure, a person who does not reside in the county and who has been subpoenaed "or otherwise required or requested in writing by the prosecuting attorney or the court" to give testimony in a criminal proceeding "shall be reimbursed by the state for the reasonable and necessary transportation, meal, and lodging expenses he incurs by reason of his attendance as a witness at such proceeding." TEX. CODE CRIM. PROC. ANN. art. 35.27, § 1(a) (West 2006). Further, the Code requires that persons seeking reimbursement must submit a sworn application to the Comptroller of Public Accounts detailing the expenses necessitated by the travel. Id. §§ 2, 4. The amount of reimbursement must not exceed the maximum rates provided for by law for state employees. Id. § 2. The application must "be presented for approval by the judge who presided over ... the criminal proceeding." Id. § 4. The Comptroller is required to examine a claim for reimbursement approved by the judge and pay it if the Comptroller "deems the claim in compliance with and authorized by" article 35.27. Id. § 5.

Article 35.27, section 7 authorizes a county to pay witness expenses in advance:

The county in which a criminal proceeding is pending, upon request of the district attorney or other prosecutor charged with the duty of prosecution in the proceeding, may advance funds from its treasury to any witness who will be entitled to reimbursement under this article. The amount advanced may not exceed the amount that is reasonably necessary to enable the witness to attend as required or requested. However, the amount advanced may include sums in excess of the reimbursement provided for by this article if the excess is required for compliance with Section 4 of Article 24.28 in securing the attendance of a witness from another state under the Uniform Act.[2] A county that advances funds to a witness under this section is entitled to reimbursement by the state as an assignee of the witness.

Id. § 7 (footnote added). The plain language of the statute gives a county the discretion, upon the prosecutor's request, to advance funds in an amount that does not exceed the amount "reasonably necessary to enable the witness to attend as required or requested." Id. The statute does not expressly or implicitly require judicial authorization of these travel-related advances for nonresident witnesses. While article 35.27 authorizes advances for a "witness who will be entitled to reimbursement under this article," whether a witness is entitled to reimbursement must ultimately be determined by the presiding judge and the Comptroller. As explained above, the determination made by these officials is made after the witness submits a sworn application detailing the expenses incurred, not before the payment is advanced. Id. §§ 4-5. Thus, we conclude that article 35.27 of the Code of Criminal Procedure does not require a county to obtain the presiding judge's preapproval before advancing funds to a nonresident witness for travel expenses. Although the Code generally authorizes a county to prepay travel expenses, a district attorney's authority to advance funds for that purpose is ultimately a matter of policy for the county to determine.[3]

You also ask whether a court may refuse to approve a nonresident witness's travel expense reimbursement request solely because the court did not preapprove the advance payment of travel costs. As we have explained, article 35.27 does not require the presiding judge to approve a county's advancement of witness expenses. Article 35.27 does require, however, that a nonresident witness who is either subpoenaed or requested to testify, and who files the sworn application required by article 35.27, shall be reimbursed by the state for necessary travel expenses. TEX. CODE CRIM. PROC. ANN. art. 35.27, § 1(a) (West 2006). When the county advances the witness's travel expenses, the witness's reimbursement rights are assigned to the county. Id. § 7. Accordingly, when a county properly advances travel expenses to a witness, that county is entitled to reimbursement from the state as the witness's assignee, regardless of whether the advance of travel expenses was judicially preapproved.

SUMMARY

Article 35.27 of the Code of Criminal Procedure does not require a county to obtain judicial preapproval before advancing funds to a nonresident witness for travel expenses. Whether a district attorney may advance such funds is a matter of policy for the county to determine.

A nonresident witness who is subpoenaed or requested to testify and who files the sworn application required by article 35.27 is entitled to reimbursement for these travel expenses. To the extent that a witness is eligible for reimbursement, and a county properly advances funds to that witness, the county is entitled to reimbursement from the state as the witness's assignee.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Brett W. Ligon, Montgomery County District Attorney, 9th Judicial District, to Honorable Greg Abbott, Attorney General of Texas at 1 (May 3, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] Article 24.28 of the Code of Criminal Procedure is the "Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings." TEX. CODE CRIM. PROC. ANN. art. 24.28, § 1 (West 2009). The article provides in part that "[i]f the witness is summoned to attend and testify in this State he shall be tendered the compensation for nonresident witnesses authorized by Article 35.27 of this Code, together with such additional compensation, if any, required by the other State for compliance." Id. § 4(b). We do not address any proceedings under article 24.28.

[3] While judicial preapproval is not expressly required by article 35.27 of the Code, reimbursement to the county of advanced travel expenditures depends on judicial approval of the sworn application to the Comptroller. Id. art. 35.27, §§ 4, 7 (West 2006). Nothing in the article precludes a county from requiring its prosecutors to seek the court's tentative approval before advancing funds.