    OFFICE OF THE ATTORNEY GENERAL        OF TEXAS
                      AUSTIN




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




                                         defense of the
                                         et the State Hlgh-
                                        for damages be paid

                                        rbat amount should
                                         State in the Me-

                                   sue to the witness direot
                                 , or should the warrant is-
                                          0urt aotrteand the

                    wont Resolution No, 30, dote of tha
                    we, authorizesWe. J. W. Taylor to
                    he State of Texas and the State Blgh-
                     onnan Qounty for the purpose of de-
                     atlon or damages, If any, she may
                     r by reactonof damage to her lands,
crops, and personal property on said lands, okimed to
have been oocasionedby the aOta of the State Highvay be-
partment, 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 resolution provldos that1 ‘Any damagee
or compensationtherein determined to bo owing the s&d
                                                        ,..._.
                                                                 645   ’
Ecmorable Gee. 8. Sheppard - PPC;e2




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 Comptrollerbe, a
aul Is hereby authorizedand instructed to settle same in
oomplianoe thereuith,and Charge same against the State
ElghrPayFund;. 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 corporationuuler the same facts and circum~
stances as providedby the lass of this State; . . .e
         8. B. 427, Acts of the 46th Legislature,the
departmentalappropriationbill, provides:
                .      All funds or balanoes of
     funds on had ieitember 1, 1029, and all fullas
     coming into the State Highway Fund, and derived
     from registrationfeos or from other sources,
     after deducting the total of the specific ap-
     propriationherein made, are hereby approprlat-
     ed to the State Highway Departmentfor the es-
     tablishmentof a system of State highways and
     the constructionand maintenance thereof, as
     oontemplatedand 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 appropriatedto the
State Sighway Departmentfor the establishment,construot-
ion and maintenance of State highways. The appropriation
is availablefor all Items of expense involved in the es-
tabllshmont,constructionand maintenance OS such highways.
The suit authorizedto be prosecutedby Mrs. Tayloris
predicatedupon damages claimed to have been ocoasionedby
the action of the Highway Department in constructingand
maintaining such a State highway. The resolutionoontem-
plates, 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 ilighaayFund. It con-
templatesrenclitlon of judgment against the Highway Depart-
ment 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 liabilityfor costs.
Zionorable6eo.n. Shopp3rd - Rye 3




           Expenses incurred in defending lawsuits for
damage6 claimed to be occasionedby the act of the gigh-
way Departmentfa construotingand maintaininga State
highway are reasonably and neoessarily to be considered
as a part of the costs involved in constructingand maln-
taining such highwaya and such 8xpenses are properly pay-
able out of the ~i@way Aeon. mey are as xlch a part of
the expense8 in~olv8d in establishing,constructinglrnd
maintaining State highways as 8m the expenses inoident
to the aoquisitionOS rights-of-saythrough oondemnation
proewdings   brought by the Highway CoIilnission,
                                                the pay-
ment of actual damages OccasiOnsd by the taking of pri-
vate 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 thereforeanswered that
the Highway Fund is available for the payment of the
oourt costs irrpol~sdin defense of the lawsuit to which
you refer.
          Your seoond question cannot be answered cate-
gorically,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
applicableto the fees of wltn%Ses appearing in civil
cases. The amount due will be reflectedby the cost bill
prepared and submittedfor 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 ex-
amination. On the other haud, if you reier to fees to be
pald expert witnesses,hired especiallyby the State Iiigh-
way Department to appear as rifnesaes in this partlaular
case, mhioh fees are not prOpOrly chargeableas 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 in-
stance ati request of the State Highway Comission till
be governed by the amount stipulated in the contract en-
tered into between the State Highway Commission and such
witness relative to the amount of fee to be paid him for
his services.
          Likeoise, a categoricalanswer oannot be given
 vith reference to your third question. If the witness ie
aonorable 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 chargeable as court ooste under the general
lava applicable, the varrant for such a fee should ls-
sue to the witness direct. On the other hand, if the
ordinary tiitnessis involved, vhose fee is properly
oharged as an it8m of court costs to be shorn in the
oost bill prepared and presentedfor ysyment by the
clerk of the court In vhich the suit is filed, th8
warrant for the payment of such court costs should is-
sue to the clerk of the Court, who will arrange payment
of the witnesses %n accordancevith 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&
