OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

liomra?#le 680. 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 Resolution No, 30, dote of tha 

we, authorizes We. 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 personal property on said lands, okimed to 

have been oocasioned by the aOta of the State Highvay bepartment, i3 carqjmg out lmproremento on 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 compensation therein determined to bo owing the s&d 
Ecmorable Gee. 8. Sheppard - PPC;e 2 

,.. ._. 

645 ’ 

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 Comptroller be, a 

aul Is hereby authorized and instructed to settle same in 

oomplianoe thereuith, and Charge same against the State 

ElghrPay Fund;. 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 corporation uuler the same facts and circum~ 

stances as provided by the lass of this State; . . .e 

8. B. 427, Acts of the 46th Legislature, the 

departmental appropriation 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 specific appropriation herein made, are hereby approprlated to the State Highway Department for the establishment of a system of State highways and 

the construction and maintenance thereof, 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 

amendments thereto.s 

The Highuay Fund is thus appropriated to the 

State Sighway Department for the establishment, construotion and maintenance of State highways. The appropriation 

is available for all Items of expense involved in the establlshmont, construction and maintenance OS such highways. 

The suit authorized to be prosecuted by Mrs. Tayloris 

predicated upon damages claimed to have been ocoasioned by 

the action of the Highway Department in constructing and 

maintaining such a State highway. The resolution oontemplates, 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 contemplates renclitlon of judgment against 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, 

subjects itself to liability for costs. 
Zionorable 6eo.n. Shopp3rd - Rye 3 

Expenses incurred in defending lawsuits for 

damage6 claimed to be occasioned by the act of the gighway Department fa construoting and maintaining a State 

highway are reasonably and neoessarily to 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, constructing lrnd 

maintaining State highways as 8m the expenses inoident 

to the aoquisition OS rights-of-say through oondemnation 

proewdings brought by the Highway CoIilnission, the payment of actual damages OccasiOnsd by the taking of private 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 therefore answered that 

the Highway Fund is available for the payment of the 

oourt costs irrpol~sd in 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 chargeable as court Costs, and the amount to be 

paid such a ritness is governed by the statutes generally 

applicable to the fees of wltn%Ses appearing in civil 

cases. The amount due will be reflected by the cost bill 

prepared and submitted for 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 examination. On the other haud, if you reier to fees to be 

pald expert witnesses, hired especially by the State Iiighway Department to appear as rifnesaes in this partlaular 

case, mhioh fees are not prOpOrly chargeable as 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 instance ati request of the State Highway Comission till 

be governed by the amount stipulated in the contract entered into between the State Highway Commission and such 

witness relative to the amount of fee to be paid him for 

his services. 

Likeoise, a categorical answer oannot be given 

vith reference to your third question. If the witness ie 
aonorable 4330. ii. Sheppard - Pye 4 

an expert vitness contracted with by the State Highvay 

Department to appear as a witness in the Case, the 

amount of his compensation for such cervices not being 

properly chargeable as 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 prepared and presented for ysyment by 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 

(y&&w&u 

R. U. Fairchild 

Assistant 

RNF-HB 

ATTOFWIY GIXMXL OF 'i'iW&