OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

liomra?#le680. Ii.Sheppard Comptroller oi Publie Aooountr Austin, Texae

defense of the et the State Hlghfor damages be paid

rbat amount should State in the Mesue to the witness direot

, or should the warrant is0urt aotrte

and the

wont ResolutionNo, 30, dote of tha we, authorizesWe. J. W. Taylor to he State of Texas and the State Blghonnan Qounty for the purpose of deatlon or damages, If any, she may r by reacton

of damage to her lands, crops, and personalproperty on said lands, okimed to have been oocasioned by the aOta of the State Highvay bepartment, 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 resolutionprovldosthat1 ‘Any damagee
or compensationtherein determinedto bo owing the s&dEcmorable Gee. 8. Sheppard - PPC;e 2 

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Urs. Joe 8. Taylor,by the State of Texas or by the State Highway Departmentof Texas, shall be paid out of the State Bighway Fund;m and, also, 'that the Comptroller be, a aul Is hereby authorizedand instructedto settle same in oomplianoethereuith,and Charge same against the State ElghrPay

Fund;. and, still further, 'that any such suits shall be tried accordingto the same rules of law and procedure as to liabilityand defense of the State of Texas and the State gighuay Departmentof Tesas that would be applicableif such uere brought against any private corporation uuler the same facts and circum~ stances as providedby the lass of this State;

. . .e

8. B. 427, Acts of the 46th Legislature,the departmentalappropriation bill, provides:

. All funds or balanoes of funds on had ieitember 1, 1029, and all fullas coming into the State Highway Fund, and derived from registration

feos or from other sources, after deducting the total of the specificappropriation

herein made, are hereby approprlated to the State Highway Departmentfor the establishmentof a system of State highways and the construction

and maintenancethereof, as oontemplated

and 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 appropriated to the State Sighway Departmentfor the establishment,construotion and maintenanceof State highways. The appropriation is availablefor all Items of expense involved in the establlshmont,

construction

and maintenanceOS such highways. The suit authorizedto be prosecuted by Mrs. Tayloris predicated

upon damages claimed to have been ocoasioned by the action of the Highway Department in constructing and maintainingsuch a State highway. The resolutionoontemplates, 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 ilighaay Fund. It contemplatesrenclitlon of judgmentagainst the Highway Department 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, subjectsitself to liabilityfor costs.Zionorable 6eo.n. Shopp3rd - Rye 3

Expenses incurred in defending lawsuits for damage6 claimed to be occasioned by the act of the gighway Departmentfa construotingand maintaininga State highway are reasonably and neoessarilyto be considered
as a part of the costs involved in constructing and malntaining such highwaya and such 8xpenses are properly payable out of the ~i@way Aeon. mey are as xlch a part of the expense8 in~olv8d in establishing,constructinglrnd maintainingState highways as 8m the expenses inoident to the aoquisitionOS rights-of-saythrough oondemnation proewdings brought by the Highway CoIilnission, the payment of actual damages OccasiOnsdby the taking of private propertyfor State highway purposes by the Eighvay Department,or expenses inourred in an sdjustmentof a claim for dsmages, such as the instant one, on the basis of the settlementout of court.

Your Piret question is thereforeanswered that the Highway Fund is availablefor the payment of the oourt costs irrpol~sdin defense of the lawsuit to which you refer.

Your seoond question cannot be answered categorically,for the reason that you do not give sufficient facts. If the ox&nary witness is involv8d,the fees are properly chargeableas court Costs, and the amount to be paid such a ritness is governedby the statutesgenerally applicableto the fees of wltn%Ses appearingin civil

cases. The amount due will be reflectedby the cost bill preparedand submittedfor paymentby the clerk of the District Court in which such case is fil8d. In case any doubt appears as to the correctnessof the cost bill,sutb cost bill shouldbe subsdtted to this departmentfor examination. On the other haud, if you reier to fees to be pald expert witnesses,hired especiallyby the State Iiighway Departmentto appear as rifnesaes in this partlaular case, mhioh fees are not prOpOrly chargeableas court oosts under the lavs generallyapplicableto civil cases, then in that instanceyou are advised that the amount to be paid such a witness appearing for the State at the instance ati request of the State Highway Comission till be governedby the amount stipulated in the contract entered into between the State Highway Commissionand such witness relative to the amount of fee to be paid him for his services.

Likeoise, a categoricalanswer oannotbe given vith referenceto your third question. If the witness ieaonorable 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 chargeableas court ooste under the general lava applicable,the varrant for such a fee should lssue to the witness direct. On the other hand, if the ordinary tiitness

is involved,vhose fee is properly oharged as an it8m of court costs to be shorn in the oost bill preparedand presentedfor ysymentby the clerk of the court In vhich the suit is filed, th8 warrant for the payment of such court costs should issue to the clerk of the Court, who will arrange payment of the witnesses %n accordance vith the lavs governing his action in such matters.

Tours very truly

ATTORNEY GENXRAL OF TEXAS 

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R. U. Fairchild Assistant



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