If a government employee is subpoenaed to testify in a civil trial about work matters, can the employee or the government employer charge an hourly rate for the time spent in court?

Plain-English summary

A state senator asked two related questions about subpoenas served on government employees in civil cases. First, what fees does the subpoenaing party owe? Second, can the government employee or employer charge an additional fee, like an hourly rate keyed to the employee's salary, for the time spent at trial?

On the first question, the AG laid out the statutory schedule. Tenn. Code Ann. § 24-4-101(b) gives any civil-court witness in a court of record a $30 per diem on request to the clerk, plus mileage at the state travel-regulation rate for travel of more than 10 miles. Tenn. Code Ann. § 24-4-102 extends reimbursement to lodging, meals, and additional mileage and per diem days for out-of-county or out-of-state witnesses. Tenn. Code Ann. § 24-4-103 sets a separate, much lower fee schedule for general sessions courts (50 cents per day, 5 cents per mile when summoned across county lines). The AG also flagged that under Tenn. Code Ann. § 20-12-101 and Rule 54.04, witness costs typically end up taxed to the non-prevailing party as part of the judgment. The party who actually issued the subpoena and the party who pays in the end may be different.

On the second question, the AG was firm. The statutory framework is the only source of compensation for civil-case witnesses. It does not differentiate between government employees and private citizens. Government employers cannot bill the subpoenaing party an hourly rate matching the employee's salary for testimony time; that would be an unauthorized supplement to the statutory schedule.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The per diem and mileage rates in Tenn. Code Ann. §§ 24-4-101 to 107 are particularly susceptible to legislative updates. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rate, deadline, or remedy mentioned here.

Background and statutory framework

Tennessee's civil-case witness compensation regime is deliberately spare. The legislature picked a low per diem because the cost ends up taxed to a party, and because the courts' subpoena power is supposed to be a manageable cost of doing business in civil litigation. The senator's question reflected real-world friction: state and local agencies sometimes resist the burden of producing employees for testimony, especially in multi-day trials, and look for ways to recoup salary or staffing costs from the litigants.

The basic schedule (§ 24-4-101(b)). A $30 per diem on request to the clerk, plus mileage at the state travel-regulation rate when the witness lives more than ten miles from the court. The "upon request to the clerk" phrasing means the witness must affirmatively claim the fee.

Travel reimbursement (§ 24-4-102). Out-of-county or out-of-state witnesses get lodging, meals, and mileage at statutorily specified rates, plus the per diem for each day of travel to and from the trial.

General sessions schedule (§ 24-4-103). Witnesses before a general sessions judge get 50 cents per day plus 5 cents per mile when summoned from outside the witness's home county. The wide gap between this rate and the courts-of-record rate is historical and has never been completely reconciled, but the AG took it at face value.

Recovery from the summoning party (§ 24-4-104). A witness who cannot recover statutory costs from the losing party can pursue the summoning party. This is the backstop that keeps the costs-taxation framework from leaving witnesses unpaid.

Cost taxation (§§ 20-12-101 and -105; Tenn. R. Civ. P. 54.04). The prevailing party is entitled to full costs unless the law or court orders otherwise. Witness fees are part of those costs. The non-prevailing party ends up paying, so the party who issued the subpoena may or may not be the party who actually bears the cost.

No special government-employee carve-out. This was the central holding on question two. The statutory framework defines "witness" broadly and does not differentiate by employment. A government employee subpoenaed about work-related knowledge is a witness under the statute. The employer cannot charge for the employee's time as if the testimony were a billable service.

The deeper rationale is that the witness-fee statutes set the limits of recoverable witness compensation. Layering an "agency time-recovery" charge on top of the statutory per diem would create a back-door way for government employers to extract additional revenue from civil litigants, which is exactly what the comprehensive statutory framework forecloses. The opinion did not address whether the agency can recover any costs from its own budget process or insurance arrangements; the question was specifically about charging the party that issued the subpoena.

Common questions

Q: A state agency employee is subpoenaed in a civil case about work matters. What does the subpoenaing party owe?
A: Under the statutes, the $30 per diem of Tenn. Code Ann. § 24-4-101(b) plus mileage if the witness lives more than 10 miles away. If the witness must travel out of county or out of state, additional lodging, meals, and mileage under § 24-4-102.

Q: Can the agency send a bill for the employee's hourly wage during testimony?
A: According to this opinion, no. The statutory per diem is the only compensation; there is no provision for agencies to recover employee salary or time as a witness fee.

Q: Who actually pays witness costs in the end?
A: Under Tenn. Code Ann. § 20-12-101 and Tenn. R. Civ. P. 54.04, the prevailing party typically recovers full costs from the non-prevailing party. So the losing party often pays, regardless of who issued the subpoena.

Q: What if the loser cannot pay?
A: Tenn. Code Ann. § 24-4-104 lets the witness recover from the party that originally summoned the witness when costs cannot be made out of the party against whom they were taxed.

Q: Are the per-diem rates different in general sessions court?
A: Yes. The AG noted that § 24-4-103 sets a much lower schedule for general sessions: 50 cents per day plus 5 cents per mile when summoned across county lines.

Q: Does this rule apply to expert witnesses?
A: The opinion addressed civil witness fees generally and did not specifically address experts. Expert witness compensation is typically governed by a different framework (the expert is hired by a party and paid an agreed rate), distinct from the per-diem schedule.

Citations and references

Statutes and rules:

• Tenn. Code Ann. §§ 24-4-101 through 107 (witness fees and expenses)
• Tenn. Code Ann. § 24-4-101(b) ($30 per diem and mileage)
• Tenn. Code Ann. § 24-4-102 (out-of-county and out-of-state travel)
• Tenn. Code Ann. § 24-4-103 (general sessions witness compensation)
• Tenn. Code Ann. § 24-4-104 (witness recovery from summoning party)
• Tenn. Code Ann. § 20-12-101 (successful party recovers full costs)
• Tenn. Code Ann. § 20-12-105
• Tenn. R. Civ. P. 54.04

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-014.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 24, 2017
Opinion No. 17-14
Witness Fees in Civil Cases

Question 1
If a state or local government employee is subpoenaed to testify in a civil trial regarding a matter that the government employee has knowledge of based on the scope and course of his or her employment, what witness fee(s) is/are to be paid by the party issuing the subpoena?

Opinion 1
Witnesses are entitled to a per diem and reimbursement for certain expenses as provided by Tenn. Code Ann. §§ 24-4-101 through 107. Since the costs of witness attendance are ordinarily taxable to the non-prevailing party, the party who summoned the witness may or may not be the party who must pay the witness fees.

Question 2
Is the government employee or the government employer entitled to charge the party issuing the subpoena any attendance or other fee, i.e., an hourly rate based upon the employee's salary, for attending a civil trial pursuant to a witness subpoena?

Opinion 2
No. Tennessee law does not provide for the payment of any witness fees or compensation other than the fees and compensation allowed under Tenn. Code Ann. §§ 24-4-101 through 107.

ANALYSIS

Tennessee Code Annotated § 24-4-101 provides for compensation for witnesses testifying under summons in a court of record in a civil matter:

Witnesses in courts of record attending under subpoena in a civil matter shall receive upon request to the clerk thirty dollars ($30.00) per day for such attendance. In addition, when such witness resides at a distance of greater than ten (10) miles from the court, the witness shall, upon request to the clerk, also receive reimbursement for travel expenses for each mile traveled when going to and returning from such court at the rate allowable under the state comprehensive travel regulations in effect at that time.

Tenn. Code Ann. § 24-4-101(b).

Witnesses under summons who are required to travel out-of-county or from out-of-state to testify at a trial are entitled — in addition to the per diem allowance for attending the trial — to expense reimbursement for lodging, meals, and mileage at statutorily specified rates, and to the per diem allowance for each day of travel required to go to and return from the trial. Tenn. Code Ann. § 24-4-102.

Every witness summoned to testify before a judge of the court of general sessions is entitled to compensation of 50¢ for each day of attendance and to 5¢ per mile for travel to and from court when summoned to attend in a county other than the witness's own county. Tenn. Code Ann. § 24-4-103.

These fees and reimbursements are the only compensation to which any witness testifying under summons in a civil trial is entitled. The controlling statutory provisions do not differentiate between witnesses who are government employees, whether testifying regarding matters within the scope of their employment or not, and witnesses who are not government employees.

Because these witness fees are statutorily directed, the fees are nondiscretionary costs which the successful party in a civil action is ordinarily entitled to recover:

The successful party in all civil actions is entitled to full costs, unless otherwise directed by law or by a court of record, for which judgment shall be rendered.

Tenn. Code Ann. § 20-12-101; see also Tenn. Code Ann. § 20-12-105; Tenn. R. Civ. P. 54.04.

Thus, it is usually the non-prevailing party who is required to pay allowable witness compensation as part of the judgment. But the non-prevailing party — i.e., the party responsible for paying the fees — may or may not be the party who caused the witness subpoena or summons to issue. In other words, payment of the witness fees is not necessarily the obligation of the party who compelled the testimony of a witness.

[Footnote: But see Tenn. Code Ann. § 24-4-104 (witness may seek recovery of fees from the party that summoned the witness if the costs cannot be made out of the person against whom the fees have been adjudged).]

In sum, Tennessee law does not provide for the payment of any witness fees or compensation other than what is specified in Tenn. Code Ann. §§ 24-4-101 through 107. And that statute provides a per diem for witness attendance, but does not permit a state or local government employee or government employer to charge the party compelling the witness testimony of a government employee any fee — such as a fee representing wages or salary for the time spent attending the trial — over and above the statutory per diem.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

ALEXANDER S. RIEGER
Assistant Attorney General

Requested by:
The Honorable Mae Beavers
State Senator
6 Legislative Plaza
Nashville, Tennessee 37243