How much could a Texas county advance for a nonresident criminal-case witness, and could prosecutors obligate the county for additional expenses?

Texas AG Opinion JM-627: Nonresident Witness Expenses

Plain-English summary

The Attorney General read article 35.27's provisions together and concluded that the "reasonable and necessary" expenses payable to a nonresident witness were limited to the amounts authorized in sections 1, 2, and 3. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

The amount a county could advance under section 7 was also limited. The opinion said the county could advance only the amount it was entitled to recover from the state "as an assignee." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Section 7 was the "exclusive method" for a prosecutor to obtain a county advance for a covered witness. The prosecutor could not instead obligate the county to pay third parties or expenses exceeding the state-reimbursable amount. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Currency note

This opinion was issued in 1987. 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.

Common questions

Were living expenses a fixed per diem?

No. Relying on Attorney General Opinion H-107, the opinion said the daily amount reimbursed actual expenses up to the statutory limit, while the automobile mileage amount was fixed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Could a county advance more than the state would reimburse?

No. The opinion concluded that the advance was "limited to the amount of reimbursement the county is entitled to receive from the state as an assignee." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Could a prosecutor arrange direct county payments to hotels or other third parties?

Not under article 35.27. The opinion said section 7 was the exclusive advance method and that a county "may not otherwise be obligated to make payments to third parties." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Were bus, train, or airfare covered?

The opinion quoted Attorney General Opinion H-107 for the view that reading sections 1, 2, and 3 together, the legislature "has made provision for the reimbursement of actual expenses incurred when the witness travels by bus, train, or air." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Did the opinion address every type of witness expense?

No. It expressly said its answer was "limited to witnesses covered by article 35.27 of the Code of Criminal Procedure." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Why did the county auditor get an answer instead of the district attorney?

The opinion opened by noting it accepted the request because the auditor stated the need was urgent and the criminal district attorney of McLennan County had failed to respond to his questions, citing V.T.C.S. article 334. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Background and statutory framework

At the time, section 2 capped state compensation at $50 per day for living expenses and 16 cents per mile for travel by personal automobile. Section 3 also covered travel, living expenses, and other expenses required by Texas law or the witness's home state. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Section 7 allowed an advance when requested by the district attorney or other prosecutor responsible for the proceeding. It also assigned the witness's state compensation to the county after an advance. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Citations and references

• V.T.C.S. art. 334
• Code Crim. Proc. arts. 24.28, 35.27
• Attorney General Opinions H-107 (1973) and H-125 (1973)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0627
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0627.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

January 27, 1987

JIM MATTOX
ATTORNEY GENERAL

Mr. Weldon C. Wells
McLennan County Auditor
500 Columbus Avenue
Waco, Texas 76701

Opinion No. JM-627

Re: Payment of witness fees under section 35.27 of the Code of Criminal Procedure

Dear Mr. Wells:

We have accepted your opinion request because you state that the need for answers to your questions is urgent and the criminal district attorney of McLennan County has failed to respond to your questions. V.T.C.S. art. 334.

You ask a number of questions which you state involve a construction of article 35.27 of the Code of Criminal Procedure, which provides for the compensation of nonresident witnesses:

1. Are the amounts of "reasonable and necessary" expenses referred to in section 1 limited to the amounts the state is allowed to reimburse for such expenses under section 2?

2. Is the amount the county is allowed to advance to any witness under section 7 limited to the amount of reimbursement the county is entitled to receive from the state as an assignee?

3. Is the prosecutor authorized to obligate the county to make payments to third parties for expenses on behalf of any witness in lieu of requesting an advance of funds to the witness as provided in section 7?

4. Is the prosecutor authorized to obligate the county to pay for expenses of any witness in excess of the amounts eligible for reimbursement from the state under section 7?

Section 2 of article 35.27 provides that the compensation paid by the state to a nonresident witness shall not exceed $50 per day for living expenses and 16 cents per mile for travel by personal automobile. Code Crim. Proc. art. 35.27, §2. While article 35.27 of the Code of Criminal Procedure has been amended since 1973, we believe no change has been made which affects the validity of the analysis employed in Attorney General Opinion H-107 (1973) insofar as it is pertinent to your first question. In that opinion it was concluded that the amount provided per day for living expenses was not a fixed per diem but is a reimbursement for actual expenses not to exceed that amount. The amount per mile is a fixed amount for travel by automobile.

Section 1 of article 35.27 provides that the nonresident witness

shall be compensated by the state for the reasonable and necessary travel and daily living expenses he incurs by reason of his attendance as a witness at such proceedings.

Section 3 provides that a nonresident witness will be allowed

compensation for travel and living expenses . . . [and] such other expenses as may be required by the laws of this state or the state from which the attendance of the witness is sought.

When sections 1, 2, and 3 of article 35.27 are read together

it is apparent that the Legislature, in language which is clear, although somewhat broad, has made provision for the reimbursement of actual expenses incurred when the witness travels by bus, train, or air.

Attorney General Opinion H-107 (1973) at 4. As to what is included within the ambit of "such other expenses as may be required by the laws of this state or the state from which the attendance of the witness is sought," this provision, while broad in its language, is by its very terms unsusceptible of greater clarity without reference to particular statutes. See Code Crim. Proc. art. 24.28. The amounts of "reasonable and necessary" expenses to be compensated a nonresident witness under article 35.27, section 1, are limited to the amounts provided in article 35.27, sections 1, 2, and 3.

In your second question, you ask whether the amount the county is allowed to advance any witness under section 7 of article 35.27 is limited to the amounts of reimbursement the county is entitled to receive from the state as an assignee. It is our opinion that section 7 sets the limits as to funds the county may advance to any witness who will be entitled to

compensation under this Article in such amounts as may be reasonably necessary to enable the witness to attend as required or requested, including any sums in excess of the compensation provided for by this Article which are required for compliance with Section 4 of Article 24.28 in securing the attendance of a witness from another state under the Uniform Act. . . .

Code Crim. Proc. art. 35.27, §7. Section 7 further provides that "upon any such advance or advances, the county shall be entitled to reimbursement by the State, as an assignee of compensation due a witness from the State." (Emphasis added.)

It is our opinion that under section 7 of article 35.27, the amount the county may advance any witness is limited to the amount of reimbursement the county is entitled to receive from the state as an assignee.

You next ask:

Is the prosecutor authorized to obligate the county to make payments to third parties for expenses on behalf of any witness in lieu of requesting an advance of funds to the witness as provided in section 7?

Insofar as compensation for a nonresident witness is provided for in article 35.27, we are of the opinion that section 7 provides the exclusive method by which the prosecutor may secure an advance of funds from the county treasury to any witness who may be entitled to compensation under this article. Section 7 provides for the advancement of such funds "upon request of the district attorney or other prosecutor charged with the duty of prosecution in the proceeding." A county may not otherwise be obligated to make payments to third parties. Attorney General Opinion H-125 (1973).

In answer to your last question, it is our opinion that the prosecutor is not authorized to obligate the county for expenses for any witness in excess of the amounts eligible for reimbursement from the state under section 7 of article 35.27. We emphasize that our opinion is limited to witnesses covered by article 35.27 of the Code of Criminal Procedure.

SUMMARY

The amounts of "reasonable and necessary" expenses to be compensated a nonresident witness under article 35.27, section 1, of the Code of Criminal Procedure, are limited to the amounts provided in article 35.27, sections 1, 2, and 3.

The amount a county is allowed to advance a nonresident witness under article 35.27, section 7, is limited to the amount of reimbursement the county is entitled to receive from the state as an assignee.

Under the provisions of article 35.27, section 7 provides the exclusive method by which the prosecutor may secure an advance of funds for a nonresident witness.

The prosecutor is not authorized to obligate the county for expenses for any nonresident witness in excess of the amounts eligible for reimbursement from the state under article 35.27, section 7.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General