r .
Eonorable E. Y. Cunningham
County Auditor
Xavarro County
Corsicana, Texas
Dear Sir: Opinion NO. o-2311
Re: Should the county pay the
physician for his services as
a witness under the facts .set
forth?
Your recent request for the opinion of this depart-
ment on the above question has been received.
We quote from your letter as follows:
"We had a case in our District Court where a
man was tried for driving whrle intoxkated and.
during the trial the District Attorney summoned
one of our local Doctors to give expert testimony
Ianthe case for which he made a chsrge and pre-
sented same to me for payment. I heavenot paid
same for the reason that my understanding of the
law is that under such conditions you can not pay
a witness fee for his service. The District At-
torney holds that I should pay the bill on the
ground that It was expert advice. This doctor
was called In by the District Attorney on his
own initiative.
"Please advise me if the County should pay
this doctor for his services."
Article 802, Vernon's Annotated Penal Code, reads as
follows:
"Any person who drives or operates an auto-
mobile or any other motor vehicle upon any street
or alley, or any other place within the limits
of any incorporated city, town, or village, or
upon any public road or highway in this state,
while such person is Intoxicated, or in any de-
gree under the influence of intoxicat+ng liquor,
shall upon conviction be confined in the penlten-
Honorable E. Y. Cunningham, page 2 o-2311
tiarg for not more than two (2) years, or be con-
fined in the county jail for not less than five
(5) days nor more than ninety (90) days and fined
not less than Fifty ($50.00) Dollars nor more
than Five Hundred ($500.00) Dollars."
Article 1036, Code of Criminal Procedure provides
compensation for witnesses in felony cases in attendance upon
the District Court and grand jury in counties other than that
of their residence. Witnesses for attendance upon the District
Courts and grand juries within the county of their residence
arenot compensated.
We quote from Tex. Jur., Vol. 19, page 453, as follows:
"An expert may be required to testify as to
the facts wlthln his knowledge wIthout any com-
pensation other than that received by an ordinary
witness for attendance on court, notwithstanding
such knowledge may have been acquired through
study and practice. He may not, however, be re-
quired to engage in experiments or Incur expenses
in order to qualify himself to,testifg in a par-
ticular case. Thus, where a medical expert has
made a post mortem examination he may'be compelled
to disclose the results of that examination wlth-
out extra compensation, but he may not be compel-
led to make such examination without being paid
for it.
"If the services required of the expert are
such that he may not be compelled to render It
under the ordinary process of the court, or agree-
ment by the one seeking the service to compensate
the expert for It is valid; but the compensation
of the expert may not be made to depend upon the
contingency of the successful outcome of the
litigation."
We quote from A. L. R., Vol. 16, pages 462-3-4,,as
follows:
"The rule is that a so-called expert witness
is not entitled to extra compensation for any
testimony which he may be required to give under
an ordinary subpoena of the court, * * * A
physician called to attend cour~tas a witness
cannot bargain for extra compensation for the
service of attending court as a witness. And
he cannot make charges for examinations and con-
, -
Honorable E. Y. Cunningham, page 3 O-2311
sultations preparatory to trial, dependent upon
the contingency of being required to testify in
a law suit. The court says that plaintiff's duty
as a citizen compel him to appear as a witness
and give testimony, without any other pay than
fees allowed by law, and he should not be per-
mitted to evade that duty by the palpable excuse
of contract for a contingent fee. (Burnet v.
Freeman, 115 3. W. 488)
"In general, if the service required of the
expert 1s such that he cannot be compelled to
render it under the ordinary process of the court,
an agreement by the one seeking the service, to
compensate the expert for It, is valid."
In the case of PhLller vs. Waukesha County, 120~N. W.
829, (Wis. case) which was an actlon~bg a physican against the
county for services performed as an expert in a criminal case,
there is a dictum to the effect that, If a person desires
that any witness equip himself with knowledge by research or
inspection, he may employ him to do so but such employment
will be controlled by the ordinary rules of contract express
or implied. In People, ex rel. Pripp vs. Cayuga County, 50
N. Y. Sup. 16, which involves the validity of a contract by a
district attorney employing an expert for a murder trial, the
court says that it is a well known fact that expert witnesses
are usually paid extra compensation for their services when
called in many cases, and the question as to the amount they
shall receive is usually regulated by contract. In People, ex
rel. Hamilton vs. Jefferson County, 54 N. W. Sup. 782, which
was an action for services rendered by an expert in a criminal
case, it appears that the statute provided for payment of ex-
penses incurred by the district attorney, and, the contract
having been made by him, the court said it was competent for
the attorney to bind the caunty for such services.
The Code of Criminal Procedure (Art. 1079) provides
that the cost accruing from the attendance of witnesses in
criminal cases shall be taxed agafnst the defendant if he is
convicted, and provision Ls made for the payment of witness
fees by the State in felony cases by Article 1036, Code of
Criminal Procedure, supra.
In this state the right of witnesses to receive com-
pensation for their attendance ls statutory, and they are en-
titled to such fees only as the statutes prescribe.
In view of the foregoing authorities, your question is
respectfully answered in the negative.
- .
Honorable E. Y. Cunningham, page 4 o-2311
.Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
ATTORNEYGENWAL OF TEXAS
By s/Ardell Williams
Ardell Wllll&ms
Assistant
AW:EP:wc
APPROVED JUNE 26, 1940
s/Gerald,,C.Mann
ATTORNEYSGENWAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman