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 depart-
        ment 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
            Ianthe case for which he made a chsrge and pre-
            sented same to me for payment. I heavenot 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 At-
            torney 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 auto-
            mobile 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 de-
            gree 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 con-
    fined 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
arenot 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 com-
   pensation 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 re-
   quired to engage in experiments or Incur expenses
   in order to qualify himself to,testifg in a par-
   ticular case. Thus, where a medical expert has
   made a post mortem examination he may'be compelled
   to disclose the results of that examination wlth-
   out extra compensation, but he may not be compel-
   led 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 agree-
    ment 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~tas 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 per-
           mitted 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 ex-
    penses 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 com-
        pensation for their attendance ls statutory, and they are en-
        titled 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
ATTORNEYSGENWAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
