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Eonorable E. Y. Cunningham

CountyAuditor 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:
"Wehad a case in ourDistrict Courtwhere a man was tried for drivingwhrle intoxkated and. during the trial theDistrict Attorney summoned one of our localDoctors to give expert testimony Ian the case forwhich 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 conditionsyou can not pay a witness fee for his service. The District Attorney holds that I should pay the bill on the ground that Itwas expert advice. This doctor was called Inby theDistrict Attorney on his own initiative. "Pleaseadvise me if the County shouldpay this doctor for his services." Article 802, Vernon's Annotated Penal Code, reads as follows:"Anypersonwho drives or operatesan automobile or any othermotor vehicle upon any street or alley, or any other placewithin the limits of any incorporatedcity, town, or village, or upon any public road or highway in this state, while suchperson is Intoxicated,or in any degree under the influenceof intoxicat+ngliquor, shallupon convictionbe confined in the penlten-Honorable E. Y. Cunningham,page 2 o-2311

tiarg for not more than two (2)years, orbe 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 Procedureprovides compensation forwitnesses in felony cases in attendance upon theDistrict Court and grand jury in counties other than that of their residence. Witnesses for attendanceupon theDistrict Courts and grand jurieswithin the county of their residence arenot compensated.

We quote from Tex. Jur.,Vol. 19, page 453, as follows:
"An expertmay be required to testify as to the factswlthln his knowledgewIthout any compensation other than that received by an ordinary witness for attendance on court, notwithstanding such knowledgemay havebeen 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 examinationhe may'be compelled to disclose the results of that examinationwlthout extra compensation,but he may not be compelled to make such examinationwithout being paid for it. "If the servicesrequired 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 expertmay not be made to depend upon the contingency of the successful outcome of the litigation."
We quote fromA. L. R., Vol. 16, pages 462-3-4,, as follows:"Therule is that a so-called expertwitness is not entitled to extra compensation for any testimonywhich he may be required to give under an ordinary subpoena of the court, * * * A physician called to attend cour~t as a witness cannotbargain for extra compensation for the service of attending court as a witness. And he cannotmake charges for examinationsand con-, -

Honorable E. Y. Cunningham,page 3 O-2311

sultationspreparatory to trial, dependent upon the contingency of being required to testify in a law suit. The court says that plaintiff'sduty 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. (Burnetv. Freeman, 115 3. W. 488)
"Ingeneral, if the servicerequired 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 servicesperformedas an expert in a criminal case, there is a dictum to the effect that, If a person desires that any witness equip himselfwith knowledge by research or inspection,he may employ him to do so but such employment will be controlledby the ordinaryrules 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 employingan expert for a murder trial, the court says that it is a well known fact that expertwitnesses are usually paid extra compensation for their serviceswhen called inmany 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 servicesrendered by an expert in a criminal case, it appears that the statute provided for payment of expenses incurredby the district attorney, and, the contract having been made by him, the court said itwas 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 ofwitnesses 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 ofwitnesses to receive compensation for their attendance ls statutory,and they are entitled to such fees only as the statutes prescribe.

In view of the foregoingauthorities,your question is respectfully answered in the negative.- .

Honorable E. Y. Cunningham,page 4 o-2311

.Trustingthat the foregoing fully answers your inquiry, we are Yours very truly
ATTORNEYGENWAL OF TEXAS
By s/ArdellWilliams ArdellWllll&ms Assistant
AW:EP:wc

APPROVED JUNE 26, 1940 s/Gerald,,C.

Mann ATTORNEYS

GENWAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman