                      The Attorney               General of Texas
                                       October    25,   1979
MARK WHITE
Attorney General


                   Honorable Siy Fred Lacy                  Opinion No. Mw-77
                   Potter County Auditor
                   Potter County Courthouse                 Re: Compensation of witnesses as
                   Amarillo, Texas 79101                    experts.

                   Dear Mr. Lacy:

                         You advise that two out-of-county private attorneys subpoenaed to
                   testify for the prosecution in a Potter County felony csse have submitted to
                   your office claims amounting to $l,OOOand $l,400, respectively, as “expert
                   witness fees.” The district attorney and county attorney differ on the
                   matter, and you have asked this office if such claims can be paid.

                         In Texas, the right of witnemes to receive     compensation for their
                   attendance in court is statutory, and they are entitled only to such fees as
                   the statutes prescribe. Attorney General Gpinioit Q-2311 (1940). &
                   Summers v. State, 5 Crim. Rep. 365 (Tex. App. 1879). Gut-of-counQ
                   witnesses are ordinarily compensated directly by the state rather than by
                   the county, although the county may advance the funds that are reasonably
                   necessary to enable such witnesses to attend, and later seek reimbursement
                   from the state. Code Crim. Proc. ert. 35.27. Gut-of-county witnesses are
                   entitkd by the statute to compensation for the reason&e and necessary
                   travel and dally living expenses they incur by reason of attendance, not to
                   exceed 25 dollars per day for living expenses, and 12 cents per mile for
                   travel by personal automobile. In addition,

                              the Comptroller of Public Accounts, upon proper
                              application by the attorney for the State, shall pay
                              such other expenses as may be required by the laws of
                              this State or the state from which the attendance of
                              the witness is sought.

                   Code Crbn. Proc. art. 35.27, S 3. Cf. Code Crim. Proc. arts. 1078, 1080
                   (compensation of in-county witneses~

                        An “expert witness,” as the term is normally employed, is one giving
                   “expert evidencev - that is, an opinion by a qualified person on facts already
                   proved, involving scientific or technical knowledge; and not evidence of




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Honorable Billy Fred Lacy   -   Page Two     (Mw-77)




thir$?sdone cr seen which anvone who had done them or seen them would be competent to
prove. Allen v. Texas & N.?LR. Co., 70 S.W.2d 758 (Tex. Civ. App. - Waco 1934, writ
diim’d). See Lan@rd v. State, 63 SW.%d 1027 (Tex. Crim. App. 1933); Adams v. Smith,
 479 S.W.2-90 (Tex. Civ. App. - Amarillo 1972, no writ). The employment of an expert
is usuaRy a matter of contract between the expert and the attorney who hkes him as a
consultant, whether or not he is exPected to testify. Attorney General Opinion 0-23ll
(1940). Where the Code of Criminal procedure expressly authorizes the payment of
“expert witness”costs, the expense is recoverable as part of the investigation expense or
fee allowed the attorney, not as a fee due the witness as a witness. -See Code Crii. Proc.
art. 26.05.

     There is no Texas statute that authorizes the payment of witness fees to out-of-
county witnesses, expert or not, in amounts greater than those allowed by article 35.27 of
the Code of Criminal Procedure. However much experts might be entitled contractually
to receive for their services as consultants, there is no authority to pay them, as
witnesses, greater fees tban those paid other witnesses unless the “other expenses”
prov?sion found in section three of that statute provides it.

      We do not believe the “other expenses”provision was intended to cover those sums
that an expert might contractually charge as payment for his services as a consultant; we
think it was intended to cover only those expenses which a statute de&ares mustbepaid
to compel the attendance of the witness. Gnly such other expenses “as may be required by
the laws of this State or the state from which the attendance of the witness is sought” are
authorized to be paid. See Attorney General Opinions EI-125,H-107(1973). -Cf. Code Crim.
Proc. art. 24.28 (out-ofzte    witnesses).

     In our opinion the two claimants are not entitled to rekeive witners fees in amounts
greater than those allowed by article 35.27 of the Code of Criminal Procedure for travel
expenses and daily living expenses. Moreover, since the sums due them need not be
advanced by the county to secure their attendance upon the trial already concluded, their
sworn applications for payment should be made directJy to the Comptroller of Public
Accomits, accompanied by the requisite affidavits, and not to your office. We do not pass
upon any claim the two attorneys may have for services performed as consultantst we
have not been advised of the agreements, if any, they may have concluded in that regard.

                                    SUMMARY

          Although experts who testify at criminal trials may have a contract
          entitling them to receive other sums for their services as con-
          sultants, there is no authority to pay them, es witnestes, greater
          fees than those paid other witnemes.




                                        4!ii!a
                                            Attorney General of Texas




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Honorable Biiy Fred Lacy    -   Page Three    (Mw-77)




JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE

C. Robert Heath, Chairman
Jim Allison
David B. Brooks
Tom Bullington
Walter Davis
SusanGarrison
Rick Gilpin
Wiiim G Reid
Bruce Youngblood




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