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Ely
Ely, Counselor at Law
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What is the law in Texas regarding payment of expert witnesses

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What is the law in Texas regarding payment of expert witnesses for their testimony in court? Specifically, is it legal to subpoena a medical examiner for a criminal trial and refuse to pay that expert for their time? The purpose of the testimony is to explain autopsy findings and offer opinions about cause and manner of death. Please cite specific laws that I can reference. Thanks.
Submitted: 6 months ago.
Category: Criminal Law
Expert:  Ely replied 6 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I understand this to be a criminal matter.

1) For the prosecutor, this is handled under Texas Code of Criminal Procedure - Article 35.27. One can see this here. The state may reimburse the witness for their travel if the witness lives outside the county/state.

2) For the Defendant, this is dealt with under Texas Code of Criminal Procedure - Chapter 24 (Subpoena And Attachment)'s Sec. 5. The Court has the final say in "proper financial reimbursement" for the witness. The witness has to request this of the Judge, and the Judge may order the Defendant to reimburse the witness. This is of course assuming the Defendant has not pre-paid the witness to testify.

Payment for witnesses to testify is not illicit and occurs on both sides. However, upon crossing the witness, either party may impeach their credibility by asking if they have been paid, how much, and whether or not this taints their testimony. The final decision is up to the jury to decide whether or not the witness was being truthful.

Specifically, is it legal to subpoena a medical examiner for a criminal trial and refuse to pay that expert for their time?

Technically, not really. A witness may request reimbursement from Defendant by asking the Court to order the Defendant to pay:

"Sec. 5. An order to a witness and to a person having custody of the witness shall provide for the return of the witness at the conclusion of his testimony, proper safeguards on his custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness. The order may prescribe any other condition the judge thinks proper or necessary."

However, this is up to the Judge. And the onus is on the witness to make this request to the Court.

Finally, a Defendant who cannot afford an expert witness but must have them for their defense can ask the Court to pay the witness FOR THEM. However, this must be arranged ahead of time.

I hope this helps and clarifies. Good luck.

If this is not what you had hoped to hear; I am sorry. Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 6 months ago.

Clarification: The prosecution has issued the subpoena. I no longer work for the Texas county in question, but I was employed by this county when I performed the autopsy. The prosecution pays a fee for expert witness testimony while the expert is employed at this county. Once this expert resigns, retires, etc., a fee will no longer be paid to this expert. Is this policy legal in Texas?

Expert:  Ely replied 6 months ago.
L,

Thank you for your clarification.

Once this expert resigns, retires, etc., a fee will no longer be paid to this expert. Is this policy legal in Texas?

It is in some counties, I am afraid. Also, I must tell you that the second part of my answer (re: Defendant witness rights) does not apply here, and it was a little skewed so to ignore this.

But to get back to your matter, witnesses in criminal proceedings who reside outside the county in which the proceeding occurs, including witnesses who reside outside the state of Texas, may seek reimbursement for reasonable and necessary transportation, meal, and lodging expenses. If you are no longer employed by the county, and do not live outside that county, I am afraid that the prosecutor may indeed subpoena you to testify and not pay.

Now, one may then seek some kind of reimbursement in a separate, CIVIL case under perhaps some kind of "quasi-contract" argument, but I am afraid that the immediate answer is YES, they can ask you to testify, and NO, they do not have to reimburse you if you live in the same county. I am sorry.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 85132
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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