No. V-0008 (1947).

• Case Date: February 11, 1947
• Court: Texas

Texas Attorney General Opinions 1947. No. V-0008 (1947). 1February 11, 1947Hon. Thomas E. Hayden, Jr.District Attorney42nd DistrictAbilene, TexasOpinion No. V-08Re: Authority for issuance and form of writ by Court to procure attendance of convict as witness.Dear Sir:You request advice from this Department as follows:

"As District Attorney of the 42nd Judicial District of Texas, I have a case to be tried in which a material witness is now confined to the State Penitentiary at Huntsville; and I have written the Texas Prison System at Huntsville asking what papers they require in order to release him to the Sheriff of Taylor County so that he might appear as a witness. The authorities at Huntsville wrote your department on or about September 23, 1946, in which they received a reply in Opinion Number 0--7426, as follows:

'The Texas Prison System authorities may release a prisoner for trial or as a material witness on the furnishing of a bench warrant.'

"It is my understanding of the law that a bench warrant can only be issued for the defendant, and I know of no rule of law that would permit a bench warrant for a witness. I would like for you to advise me concerning this matter. It is my opinion that if a subpoena with attachment was issued that the witness could be released to the Sheriff of Taylor County, who, in return, would take the prisoner back to Huntsville after the trial. Please advise me concerning this2

matter. If I cannot obtain this witness, then I will have to dismiss the case now pending."

It is within the power of a court to compel the attendance as a witness of a person confined in State prison when it appears to the satisfaction of the court that such attendance is necessary. 70 C. J. 41, "Witnesses", Sec. 14; 18 C. J. S. 110, "Convicts", Sec. 9b. The power was impliedly recognized in Lee v. State, 70 S. W. (2d) 190, by the Court of Criminal Appeals wherein the process was termed a "bench warrant". That the court may...