Untitled Texas Attorney General Opinion ( 1994 )

@ffice of the !Zhxnep Qkneral
State of, ZEexae
DAN MORALES
ATTORNEY
GENERAL December 5, 1994
Honorable Merrill L. Hartman Opinion No. DM-308
Chair
Court Reporters Certification Board Re: Whether rule 166c of the Texas Rules
P.O. Box 13131 of Civil Procedure and section 52.021(f) of
Austin, Texas 78711-3131 the Government Code conflict (RQ-695)
Dear Judge Hartman:
You request claritlcation of Letter Opinion No. 93-l 10 (1993) in which this office
addressed, at your request, the relationship between subsections (e) and (t) of section
52.021 of the Government Code. Specifically. you ask whether rule 166~ of the Texas
Rules of Civil Procedure and section 52.021(f) of the Government Code conflict, a
question which you did not raise and this office did not reach in our prior letter ophxion.r
Section 52.021 of the Government Code provides in pertinent part:
(e) A person may not assume or use the title or designation
“court recorder,” “court reporter,” or “shorthand reporter,” or any
abbreviation, title, designation, words, letters, sign, card, or device
tending to indicate that the person is a court reporter or shorthand
reporter, unless the person is certified as a shorthand reporter by the
supreme court. Nothing in this subsection shall be construed to
either sanction or prohibit the use of electronic court recording
equipment operated by a noncertified court reporter pursuant and
according to rules adopt4 or approved by the supreme court.
(t) Except as provided by Section 52.031 and by Section
20.001, Civil Practice and Remedies Code, all akposiiions con-
ducted in this slate must be recorded by a cert@ed shorthand
reporter.
(g) The board may enforce this section by seeking an injunction
or by filing a complaint against a person who is not certified by the
supreme court in the district court of the county in which that person
resides. Said action for an injunction shall be in addition to any other
tin the letter opinion, we expressly noted that we did not consider the relationshipbehveen
section SZ.OZl(fJand rule 202 of the Texas Rules of Civil Procedure. See LetterOpinion No. 93-110
(1993) at 3 n.2.
p. 1646
Honorable Merrill L. Hartman - Page 2 (DM-308)
action, proceeding, or remedy authorized by law. The board shall be
represented by the attorney general and/or the county or district
attorney of this state, or counsel designated and empowered by the
board.
Gov’t Code 5 52.021(e) - (g) (emphasis added). In Letter Gpiion No. 93-l 10, this office
concluded that subsection (f) refers to depositions upon oral examination. Letter Gpiion
No. 93-110 at 3.
As you point out, rule 166~ of the Texas Rules of Civil Procedure, entitled
“Stipulations Regarding Discovery Procedure,” appears to permit any person to take a
deposition upon oral examination in certain circumstances. It provides as follows:
Unless the court orders otherwise, the parties may by written
agreement (1) provide that &positions mq be taken before any
person, at any time or place, upon any notice, and in any manner and
when so taken may be used like other depositions, and (2) modii the
procedures provided by these rules for other methods of discovery.
An agreement affecting a deposition upon oral examination is
enforceable if the agreement is recorded in the deposition transcript.
Fnphasis added.]
To the extent that rule 166c permits parties to stipulate that a deposition upon oral
examination be taken by a person other than a certified shorthand reporter, it conflicts
with subsection (i) of section 52.021 of the Government Code. When a rule of civil
procedure promulgated by the Texas Supreme Court conflicts with a statute, the rule must
yield. Fou v. Charter Oak Fire Ins. Co., 463 S.W.Zd 424 (Tex. 1971); Purokztor
Armored, Inc. v. Railroad Comm’n, 662 S.W.2d 700, 702-03 n.4 (Tex. App.-Austin
1983, no writ); Drake v. Muse, Currie & Kohen, 532 S.W.Zd 369, 370 (Tex. Civ.
App.-Dallas 1975, writ refd n.r.e.); CE. Duke’s Wrecker Serv., Inc. v. Oakley, 526
S.W.2d 228 (Tex. Civ. App.-Houston [lst Dist.] 1975, writ refd n.r.e.). Thus, to the
extent that rule 166~ permits parties to stipulate that a deposition upon oral examination
be taken by a person other than a certified shorthand reporter, it must yield to the
requirement of subsection (i) of section 52.021 of the Government Code that a deposition
upon oral examination must be taken by a certified shorthand reporter. Of course, section
52.03 1 of the Government Code, to which subsection (i) expressly refers, provides for the
reporting of a deposition upon oral examination by a noncertified shorthand reporter under
certain circumstances.
Your letter includes a discussion of the legislative history of rule 166c, and states
that “[i]t is not clear whether the intent of the commenters or the drafters of Rule 166~
was to permit parties to dispense with the statutory requirements regarding the use of a
court reporter.” We note that rule 166~ was adopted in 1987 and effective
January 1, 1988. Subsection (f) of section 52.021 of the Government Code, on the other
hand, was not enacted until 1993. See H.B. 2073, Acts 1993, 73d Leg., ch. 1037, 5 2 (eff.
p. 1647
Honorable Merrill L. Hartman - Page 3 (``-308)
Sept. 1, 1993). Given that rule 166~ was adopted five years before subsection (0, we
cannot infer any intent on the part of the drafters of rule 166~ to either dispense with or
avoid a contlict with subsection (f). We also note that subsection (0; on its face, appears
to have been intended to limit the authority of persons other than certi6ed shorthand
repotters to take depositions upon oral examination, at least implicitly disapproving rule
MC. See Gov’t Code (522.004(b) (supreme court rules remain in effect until disapproved
by the kgislature). We are not aware of any legislative history to the contrary,2 and
therefore must abide by the plain meaning of the statute. If this was not the purpose of
section (0, it is for the legislature to amend subsection (f) to cla.ri@that this was not its
intent.’
zInfaqonthirdrradingthcHouscofRcprcgntativcsfailcdtoadaptanamendmenttoHousc
Bill 2073 that would have substituteda new s§ion (f) providingas follows:
Exceptaa providedby section 52.031 and by Section 20.001, Cii Practice
and Rcmcdies code, or by agreemenf ofthe parries, all dcp&ions, exceptdapo-
&ions on written questions, conducted in this state most be mcorded by a
WrtiBedshorthandreporkr.
HJ. ofTa, 73d Leg., at 2309 (1993) (emphasisadded).
‘Section 22.004(c) of the GovemmentCodeprovidesas follows:
SothatthenrprrmccMlnhasfullrulemaLingpowcrincivilactiongarule
adopted by the suprcmc court rcpds all conllicting laws and parts of laws
govcming practice and procedurein civil actions, but substantivelaw is not
repealed. At the time the supremecourtfiles a rule, the comt shall file with the
swrctaryof statea list of each articleor sectionof generallaw or each partof aa
articleor acctionof generallaw that in the court’sjudgmentis repealed. The list
has the same weight and effectas a decisionof the court.
You do not ask and we do not considerhere whethersubsectionQ of section 52.021 of the Gwermnent
Codeis merelya procedurallaw which the supremecourtcould repealby rule.
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Honorable Merrill L. Hartman - Page 4 (``-308)
SUMMARY
To the extent that rule 166~ of the Texas Rules of Civil
Procedure permits parties to stipulate that a deposition upon oral
examination be taken by a person other than a certikd shorthand
reporter, it must yield to the requirement of subsection (f) of section
52.021 of the Government Code that a deposition upon oral
examination must be taken by a certified shorthand reporter.
DANE MORALES
Attorney General of Texas
JORGE VEGA
Pii Assistant Attorney General
DREW T. DURHAM
Deputy Attorney General for Criminal Justice
JAVIER AGUILM
Special Assistant Attorney General
RENEAHICKS
State Solicitor
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
p. 1649