Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
July 7, 1982
MARK WHITE
Attorney General
Honorable James W. Smith opinion No. MW-4a7
Supreme Court Building Frio County Attorney
P. 0. BOX 12546
Austin. TX. 76711. 2546
P. 0. Box V Re: County liability for cost
5121475-2501 Pearsall, Texas 78061 of reporter's shorthand notes
Telex 9101874.1367 in county court criminal trial
Telecopier 512I475.0266
Dear Mr. Smith:
1607 Main St.. Suite 1400
Dallas, TX. 75201.4709 You advise that Frio County does not have a county court-at-law
21417428944 or other statutory court. and that the county court conducts criminal
trials as well as civil trials. You ask if it is the responsibility
of the county to pay a court reporter when one is demanded in a county
4824 Alberta Ave., Suile 160
El Paso, TX. 79905.2793
court criminal trial and, if so, whether the costs thereof can be
91515333464 adjudged against a convicted defendant.
Article 2321, V.T.C.S.. which formerly applied only to each
1220 Dallas Ave.. Suite 202
"district and criminal district judge" now reads:
Housto”, TX. 770026966
713J65C-0666
Each judge of a court of record shall appoint an
official court reporter who shall be a sworn
606 Broadway. Suite 312 officer of the court and shall hold office at the
Lubbock. TX. 79401.3479
pleasure of the court.
606/747-5236
County courts are courts of record. Tex. Const. art. V. 115.
4309 N. Tenth. Suite B
McAllen. TX. 78501.1665 It is thus the dutyyof the county judge to appoint an official
5121682.4547 court reporter for the court, and it is the duty of the official
reporter, when requested, to attend all sessions of court, take full
200 Main Plaza, Suite 400 shorthand notes, preserve them, and furnish transcripts of evidence
San Antonio, TX. 78205.2797 and other proceedings. V.T.C.S. art. 2324. See also Tex. R. Civ. P.
512,2254191 376b. Although such reporters should be certified, non-certified
reporters may be employed if certified reporters are not available.
An Equal Opportunity1
V.T.C.S. art. 2324b, §61. 14. See also V.T.C.S. art. 2326a-1
Aflirmative Action Employer (visiting reporters, payment).
Even before article 2321 was amended to apply to all courts of
record, it was mandatory that county courts appoint court reporters to
report all trial proceedings in criminal trials when requested by the
defendant. Code Crim. Proc. art. 40.09. 54. Cartwright v. State, 527
S.W.2d 535 (Tex. Grim. App. 1975). Article 40.09, section 4 of the
Code of Criminal Procedure specifies:
p. 1722
Honorable James W. Smith - ysge 2 ,@W-487)
At the request of either party the court reporter
shall take shorthand notes of all trial
proceedings, including voir dire exsmination.
objections to the court's charge, and final
arguments. He is not entitled to any fee in
addition to his official salary for taking these
notes....
A similar rule applies with respect to civil cases in county courts.
V.T.C.S. art. 2327. Although these statutes require the appointed
shorthand reporter to take notes of proceedings only when requested to
do so by a party, another statute, article 2327d. V.T.C.S., permits
the county judge to have the official reporter take and preserve a
record of all hearings before him.
In any case, the burden of the court reporter's official salary
is to be borne by the county for which the reporter was appointed.
Article 2326~. V.T.C.S., provides:
The official shorthand reporter... of any County
Court... in this State, where the compensation of
such reporter of such County Court... is not
otherwise provided by special law. shall receive a
salary of [not more than Two Thousand Seven
Hundred Dollars ($2.700.00) per annum, nor less
than Two Thousand Four Hundred Dollars ($2.400.00)
per annum], such salary to be fixed and determined
by the... County Judge... of the Court wherein
such shorthand reporter is employed, in addition
to the comnensstion for transcriot fees ss
provided for-by law. Said salary shall
1 be paid
monthly by the Commissioners Court of the county
out of the General Fund of the county, or in the
discretion of the Commissioners Court, out of the
jury fund of said County.... (Emphasis added).
The foregoing statute no longer governs the amount of salary that
may be paid the official reporter for a county court, but it still
specifies the source of the salary. To the extent that article 2326~
purports to prescribe the salary, it has been repealed by article
3912k. V.T.C.S. See Attorney General Opinion H-200 (1974). The
latter act allows the salary to be set at no less than the appropriate
salary existing on January 1, 1972, but does not specify a maximum.
In the case of most offices to which it is applicable, section 1
of article 3912k directs that the salary be set by the cormnissioners
court, but section 4 thereof specifies:
p. 1723
Honorable James W. Smith - Page 3 (MW-487)
Nothing in this Act is intended to affect the
lawful procedures and delegations of authority
heretofore established in any county for the
purpose of setting the salary of county and
precinct employees.
Inasmuch as article 2326~. V.T.C.S., had theretofore delegated to the
county judge the authority to set the salary for the county court
official shorthand reporter, the county judge continues to possess
that power in Frio County.
There is no provision in the law for assessing the official
salary of the court reporter (or the per diem and expenses of a
substitute) ss costs against a criminal defendant. See Code Crim.
Proc. art. 1011. See also V.T.C.S. arts. 2326s. 2326a-1, 2326~. On
the other hand, a defendant requesting transcription of the reporter's
shorthand notes will in most cases be required to pay therefor. Code
Crim. Proc. art. 40.09, §5. -See Attorney General Opinion H-200
(1974).
We advise that it is the responsibility of Frio County to pay a
court reporter when one is demanded in a county court criminal trial
and that neither the costs of the reporter's official salary, nor the
per diem and expenses of a substitute, can be adjudged against s
convicted defendant.
SUMMARY
It is the responsibility of Frio County to pay
a court reporter when one is demsnded in a county
court criminal trial, and neither the costs of the
reporter's salary, nor the per diem and expenses
of a substitute, can be adjudged against a
convicted defendant.
MA RR WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
p. 1724
tlonorableJames W. Smith - Page 4 (MW-487)
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojoss
Jim Moellinger
Jack Sparks
Bruce Youngblood
p. 1725