Texas Attorney General Opinion: V-08 Page: 2 of 3
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Hon. Thomas E. Hayden, Jr., Page 2'
'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 0. J.
41, "Witnesses", Sea. 14; 18 C. J. S. 110, "Convicts",
Sec. 9b.
The power was'impliedly recognized inLee v.
State, 70 S. W. (2d) 190, by the Court of Criminal Ap-
peals, herein the process vas termed a "bench war-
rant".
That the court may issue writs and process
not specifically described or in situations not spe-
cifically contemplated-by statute is expressly recog-
nized in Ex Parte Lowe, 251 S. W. 506, by the Court
of Criminal Appeals, wherein a warrant issued by the
Court directed to the Sheriff of McLennan County com-
manding delivery of a defendant charged in Hill Coun-
ty to the Sheriff of Hill County to the end that de-
fendant might be present and attend his trial in the
District Court of Hill County was held to be within
the powers' of the District Court of Hill County.
There the defendant was in custody'under a oharge of
lunacy in McLennan County. And the writ was termed
a "Bench Warrant."
We doubt that it matters whether the writ
be termed a "bench warrant" or an "attachment." We
are also of the opinion that'a subpoena is not nec-
essary and that the writ may issue upon determina-
tion by the court that the witness is required in
order to attain the ends of justice.
This Department by Opinion 0-7426 held, in
the same authority, that the Texas Prison System
might release a prisoner as a material witness upon
the furnishing of a "bench warrant" in form attached
to that opinion. We 'are enclosing a copy of 0- 7426
with the form attached. ' r,
Courtmay issue writ designedd to pro-
cure attendance of an inmate of a State
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Texas. Attorney-General's Office. Texas Attorney General Opinion: V-08, text, February 11, 1947; (https://texashistory.unt.edu/ark:/67531/metapth264828/m1/2/?q=%22Government+and+Law+-+Elected+Officials+-+Attorneys+General%22: accessed July 9, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.