Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
liomra?#le 680. 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 aotrte and the wont Resolution No, 30, dote of tha we, authorizes We. 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 reacton of damage to her lands, crops, and personal property on said lands, okimed to have been oocasioned by the aOta of the State Highvay be- partment, i3 carqjmg out lmproremento on 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 compensation therein determined to bo owing the s&d
,.. ._. 645 ’ Ecmorable Gee. 8. Sheppard - PPC;e 2
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 Comptroller be, a aul Is hereby authorized and instructed to settle same in oomplianoe thereuith, and Charge same against the State ElghrPay Fund;. 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 corporation uuler the same facts and circum~ stances as provided by the lass of this State; . . .e
8. B. 427, Acts of the 46th Legislature, the departmental appropriation bill, provides:
. All funds or balanoes funds on had ieitember 1, 1029, and all fullas coming into the State Highway Fund, and derived from registration feos or from other sources, after deducting the total of the specific ap- propriation herein made, are hereby approprlat- ed to the State Highway Department for the es- tablishment of a system of State highways and the construction and maintenance thereof, as oontemplated and set forth In said Chap. 1,
Title 166, and Chap. 186, Cen. Laws of the
regular session of the 29th Legislature, and amendments thereto.s
The Highuay Fund is thus appropriated to the State Sighway Department for the establishment, construot- ion and maintenance of highways. The appropriation is available for all Items of expense involved in the es- tabllshmont, construction and maintenance OS such highways.
The suit authorized to be prosecuted by Mrs. Tayloris predicated upon damages claimed to have been ocoasioned by the action of the Highway Department in constructing and maintaining such a State highway. The resolution oontem- 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 ilighaay Fund. It con- templates renclitlon 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 liability for costs.
Zionorable 6eo.n. Shopp3rd - Rye 3
Expenses incurred in defending lawsuits for damage6 claimed to be occasioned by the act of the gigh- way Department fa construoting and maintaining a State highway are reasonably and neoessarily to be considered as a part of the costs involved in constructing and maln- taining such highwaya and such 8xpenses are properly pay- able out of the ~i@way Aeon. mey are as xlch a part the expense8 in~olv8d in establishing, constructing lrnd maintaining State highways as 8m the expenses inoident to the aoquisition OS rights-of-say through 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 therefore answered that
the Highway Fund is available for the payment of the oourt costs irrpol~sd in 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 applicable to the fees of wltn%Ses appearing in civil cases. The amount due will be reflected by the cost bill prepared and submitted for 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 especially by the State Iiigh- way Department to appear as rifnesaes in this partlaular case, mhioh fees are not prOpOrly chargeable as 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 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 categorical answer oannot be given
vith reference to your third question. If the witness ie *4 aonorable 4330. ii. Sheppard - Pye 4
an expert vitness contracted with by the State Highvay Department to appear as a witness in the Case, the amount of his compensation for 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 tiitness is involved, vhose fee is properly oharged as an it8m of court costs to be shorn in the oost bill prepared and presented for 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 accordance vith 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&