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 department 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 

Ian the case for which he made a chsrge and presented same to me for payment. I heave not 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 Attorney 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 automobile 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 degree 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 confined 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 

are not 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 compensation 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 required to engage in experiments or Incur expenses 

in order to qualify himself to,testifg in a particular case. Thus, where a medical expert has 

made a post mortem examination he may'be compelled 

to disclose the results of that examination wlthout extra compensation, but he may not be compelled 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 agreement 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~t as 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 permitted 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 expenses 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 compensation for their attendance ls statutory, and they are entitled 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 

ATTORNEYS GENWAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman