The Attorney General of Texas
October 25, 1979
MARK WHITE
Attorney General
Honorable Siy Fred Lacy Opinion No. Mw-77
Potter County Auditor
Potter County Courthouse Re: Compensation of witnesses as
Amarillo, Texas 79101 experts.
Dear Mr. Lacy:
You advise that two out-of-county private attorneys subpoenaed to
testify for the prosecution in a Potter County felony csse have submitted to
your office claims amounting to $l,OOOand $l,400, respectively, as “expert
witness fees.” The district attorney and county attorney differ on the
matter, and you have asked this office if such claims can be paid.
In Texas, the right of witnemes to receive compensation for their
attendance in court is statutory, and they are entitled only to such fees as
the statutes prescribe. Attorney General Gpinioit Q-2311 (1940). &
Summers v. State, 5 Crim. Rep. 365 (Tex. App. 1879). Gut-of-counQ
witnesses are ordinarily compensated directly by the state rather than by
the county, although the county may advance the funds that are reasonably
necessary to enable such witnesses to attend, and later seek reimbursement
from the state. Code Crim. Proc. ert. 35.27. Gut-of-county witnesses are
entitkd by the statute to compensation for the reason&e and necessary
travel and dally living expenses they incur by reason of attendance, not to
exceed 25 dollars per day for living expenses, and 12 cents per mile for
travel by personal automobile. In addition,
the Comptroller of Public Accounts, upon proper
application by the attorney for the State, shall pay
such other expenses as may be required by the laws of
this State or the state from which the attendance of
the witness is sought.
Code Crbn. Proc. art. 35.27, S 3. Cf. Code Crim. Proc. arts. 1078, 1080
(compensation of in-county witneses~
An “expert witness,” as the term is normally employed, is one giving
“expert evidencev - that is, an opinion by a qualified person on facts already
proved, involving scientific or technical knowledge; and not evidence of
P- 234
Honorable Billy Fred Lacy - Page Two (Mw-77)
thir$?sdone cr seen which anvone who had done them or seen them would be competent to
prove. Allen v. Texas & N.?LR. Co., 70 S.W.2d 758 (Tex. Civ. App. - Waco 1934, writ
diim’d). See Lan@rd v. State, 63 SW.%d 1027 (Tex. Crim. App. 1933); Adams v. Smith,
479 S.W.2-90 (Tex. Civ. App. - Amarillo 1972, no writ). The employment of an expert
is usuaRy a matter of contract between the expert and the attorney who hkes him as a
consultant, whether or not he is exPected to testify. Attorney General Opinion 0-23ll
(1940). Where the Code of Criminal procedure expressly authorizes the payment of
“expert witness”costs, the expense is recoverable as part of the investigation expense or
fee allowed the attorney, not as a fee due the witness as a witness. -See Code Crii. Proc.
art. 26.05.
There is no Texas statute that authorizes the payment of witness fees to out-of-
county witnesses, expert or not, in amounts greater than those allowed by article 35.27 of
the Code of Criminal Procedure. However much experts might be entitled contractually
to receive for their services as consultants, there is no authority to pay them, as
witnesses, greater fees tban those paid other witnesses unless the “other expenses”
prov?sion found in section three of that statute provides it.
We do not believe the “other expenses”provision was intended to cover those sums
that an expert might contractually charge as payment for his services as a consultant; we
think it was intended to cover only those expenses which a statute de&ares mustbepaid
to compel the attendance of the witness. Gnly 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” are
authorized to be paid. See Attorney General Opinions EI-125,H-107(1973). -Cf. Code Crim.
Proc. art. 24.28 (out-ofzte witnesses).
In our opinion the two claimants are not entitled to rekeive witners fees in amounts
greater than those allowed by article 35.27 of the Code of Criminal Procedure for travel
expenses and daily living expenses. Moreover, since the sums due them need not be
advanced by the county to secure their attendance upon the trial already concluded, their
sworn applications for payment should be made directJy to the Comptroller of Public
Accomits, accompanied by the requisite affidavits, and not to your office. We do not pass
upon any claim the two attorneys may have for services performed as consultantst we
have not been advised of the agreements, if any, they may have concluded in that regard.
SUMMARY
Although experts who testify at criminal trials may have a contract
entitling them to receive other sums for their services as con-
sultants, there is no authority to pay them, es witnestes, greater
fees than those paid other witnemes.
4!ii!a
Attorney General of Texas
P. 235
Honorable Biiy Fred Lacy - Page Three (Mw-77)
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Tom Bullington
Walter Davis
SusanGarrison
Rick Gilpin
Wiiim G Reid
Bruce Youngblood
P- 236