Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN liomra?#le680. Ii. Sheppard Comptroller oi Publie Aooountr Austin, Texae defense of the et the State Hlgh- for damages be paid rbat amount should State in the Me- sue to the witness direot , or should the warrant is- 0urt aotrteand the wont Resolution No, 30, dote of tha we, authorizesWe. J. W. Taylor to he State of Texas and the State Blgh- onnan Qounty for the purpose of de- atlon or damages, If any, she may r by reactonof damage to her lands, crops, and personal property on said lands, okimed to have been oocasionedby the aOta of the State Highvay be- partment, i3 carqjmg out lmprorementoon State nighway EO. 2, ree-Utlng Sn ohanging the course of and diverting, storm waters and the watera of Brazes River on and across her land. This resolution provldos that1 ‘Any damagee or compensationtherein determined to bo owing the s&d ,..._. 645 ’ Ecmorable Gee. 8. Sheppard - PPC;e2 Urs. Joe 8. Taylor, by the State of Texas or by the State Highway Department of Texas, shall be paid out of the State Bighway Fund;m and, also, 'that the Comptrollerbe, a aul Is hereby authorizedand instructed to settle same in oomplianoe thereuith,and Charge same against the State ElghrPayFund;. and, still further, 'that any such suits shall be tried according to the same rules of law and procedure as to liability and defense of the State of Texas and the State gighuay Department of Tesas that would be applicable if such uere brought against any private corporationuuler the same facts and circum~ stances as providedby the lass of this State; . . .e 8. B. 427, Acts of the 46th Legislature,the departmentalappropriationbill, provides: . All funds or balanoes of funds on had ieitember 1, 1029, and all fullas coming into the State Highway Fund, and derived from registrationfeos or from other sources, after deducting the total of the specific ap- propriationherein made, are hereby approprlat- ed to the State Highway Departmentfor the es- tablishmentof a system of State highways and the constructionand maintenance thereof, as oontemplatedand set forth In said Chap. 1, Title 166, and Chap. 186, Cen. Laws of the regular session of the 29th Legislature,and amendmentsthereto.s The Highuay Fund is thus appropriatedto the State Sighway Departmentfor the establishment,construot- ion and maintenance of State highways. The appropriation is availablefor all Items of expense involved in the es- tabllshmont,constructionand maintenance OS such highways. The suit authorizedto be prosecutedby Mrs. Tayloris predicatedupon damages claimed to have been ocoasionedby the action of the Highway Department in constructingand maintaining such a State highway. The resolutionoontem- plates, of course, a defense of such action in the courts by the Bighvay Commission,and the payment of the judgment rendered, if any, out of the State ilighaayFund. It con- templatesrenclitlon of judgment against the Highway Depart- ment for costs, as well as for the amount of damages, If the court finds liability. If is well settled in this State that the State, when It enters its oourts as a suitor, subjects itself to liabilityfor costs. Zionorable6eo.n. Shopp3rd - Rye 3 Expenses incurred in defending lawsuits for damage6 claimed to be occasionedby the act of the gigh- way Departmentfa construotingand maintaininga State highway are reasonably and neoessarily to be considered as a part of the costs involved in constructingand maln- taining such highwaya and such 8xpenses are properly pay- able out of the ~i@way Aeon. mey are as xlch a part of the expense8 in~olv8d in establishing,constructinglrnd maintaining State highways as 8m the expenses inoident to the aoquisitionOS rights-of-saythrough oondemnation proewdings brought by the Highway CoIilnission, the pay- ment of actual damages OccasiOnsd by the taking of pri- vate property for State highway purposes by the Eighvay Department, or expenses inourred in an sdjustment of a claim for dsmages, such as the instant one, on the basis of the settlement out of court. Your Piret question is thereforeanswered that the Highway Fund is available for the payment of the oourt costs irrpol~sdin defense of the lawsuit to which you refer. Your seoond question cannot be answered cate- gorically,for the reason that you do not give sufficient facts. If the ox&nary witness is involv8d, the fees are properly chargeable as court Costs, and the amount to be paid such a ritness is governed by the statutes generally applicableto the fees of wltn%Ses appearing in civil cases. The amount due will be reflectedby the cost bill prepared and submittedfor payment by the clerk of the District Court in which such case is fil8d. In case any doubt appears as to the correctness of the cost bill,sutb cost bill should be subsdtted to this department for ex- amination. On the other haud, if you reier to fees to be pald expert witnesses,hired especiallyby the State Iiigh- way Department to appear as rifnesaes in this partlaular case, mhioh fees are not prOpOrly chargeableas court oosts under the lavs generally applicable to civil cases, then in that instance you are advised that the amount to be paid such a witness appearing for the State at the in- stance ati request of the State Highway Comission till be governed by the amount stipulated in the contract en- tered into between the State Highway Commission and such witness relative to the amount of fee to be paid him for his services. Likeoise, a categoricalanswer oannot be given vith reference to your third question. If the witness ie aonorable 4330.ii. Sheppard - Pye 4 an expert vitness contractedwith by the State Highvay Department to appear as a witness in the Case, the amount of his compensationfor such cervices not being properly chargeable as court ooste under the general lava applicable, the varrant for such a fee should ls- sue to the witness direct. On the other hand, if the ordinary tiitnessis involved, vhose fee is properly oharged as an it8m of court costs to be shorn in the oost bill prepared and presentedfor ysyment by the clerk of the court In vhich the suit is filed, th8 warrant for the payment of such court costs should is- sue to the clerk of the Court, who will arrange payment of the witnesses %n accordancevith the lavs governing his action in such matters. Tours very truly ATTORNEY GENXRAL OF TEXAS (y&&w&u R. U. Fairchild Assistant RNF-HB ATTOFWIY GIXMXL OF 'i'iW&