Untitled Texas Attorney General Opinion ( 1948 )

NEY GENERAL
O,P TEXAS
PRICE DANIEL
ATTORNEYGENERAL
April 9, 1948
Hon. Elmer 8. Parish,
District Attorney,
Thirteenth Judicial District,
Wichita Falls, Texas Opinion No. V-538
Rer Liability for compen-
sat ion to stenograph-
er for taking and
transcribing testi-
mony at an inquest,
Dear Sirr
We refer to your letter of March 15, 1948, in
which you submit the followingr
We would like for you to submit an opin-
ion to us as to whether or not a $150.00
fee of a reporter for taking testimony ate
an inquest and transcribing the testimony
is a proper and necessary expense to be
paid as expenses of the County Attorney.
e 0 0
n o D , The Justice of the Peace called an
inquest on the case and advised both the
County and District Attorney’s offices
th;tl;;id inquest would be heard on Aug-
m The County Attorney desired to
have the testimony of the witnesses trans-
cribed in question and answer form to aid
and assist him in the prosecution of the
case should a criminal charge result. For
this purpose he made arrangements to have
a reporter present to take down the testi-
mony and transcribe the same.
“The hearing consumed two days and the re-
porter submitted a bill to the County At-
torney for the sum of $150,00, All the
testimcng introduced in the trial was
/:
Hon. Elmer H. Parish - Page 2. (~438) ,,
transcribed by the reporter in question
and answer form. After a study ,of the
Statement 0r Pacts, no, criminal charge
was filed. The County ‘Attorney submitted
the blll,of the reporter to the Commisslon-
efs’ Court as a reasonable expense neces-
sary In the proper and legal conduct of
.his office. The Commissioners’ Court
failed to approve the bill or author&G ~.
the payment by t,he County Attorney but,
did authorize the Justice of the Peace to,,
pay the same.
“In Wichita County the County Attorney re-
ceives a fixed salary as compensation for
his services and the Just Ice .of the Peace
is on a fee basis.”
As we construe your letter, the question is
as to whether the Justice of the Peace or the county is
-liable for the compensation to the reporter employed by
the County Attorney to take and transcribe the evidence
in the Inquest proceedings in question and answer form
to assist the County Attorney in the prosecution of an
anticipated criminal charge.
The authority and duties of Justices of the
Peace concerning inquests are prescribed in Articles 96
989, and 1053, V. C. C. P.
Article 975 reads8
nWitnesses shall be sworn and examined
by the justice and their testimony reduced
to writing by or under his direction, and
subscribed by them.”
Article 987, V. C. C. P, require,s the Justice
of the Peace to l’cert$fy to the proceedings and shall en-
close in an envelope the testimony takenw etc.
Article 1053, V. C. C. P, reads, in part:
“A Justice of the peace shall be entitl-
ed;for an inquest on a dead body; inelud-
lng certifying and returning the proceed-
ings to the roper. court, the sum of Ten
Dollars ($10 P to be paid by the county.”
Hon. Elmer H. Parish - Page 3 (v-538)
You say that the inquest was held because a
question was raised that the death was under circum-
stances which may have constituted negligent homicide,
and that “the County Attorney desired to have the tes-
timony of the witnesses transcribed in question and
answer form to aid and assist him in the prosecution
of the case should a criminal charge result. For this
purpose he made arrangements to have’ a reporter pres-
ent to take down the testimony and transcribe the same.”
The question is as to whether the County At-
torney was authorized to incur such expense to be paid
by Wichita County under section b of Article 3899, V.C.S.,
the pertinent part of which reads:
“Each officer named in this act where he re-
ceives a salary as compensation for his ser-
vices shall be entitled and permitted to
purchase or charge to his county all reason-
able expenses necessary in the proper and
legal conduct of his office.”
The County Attorney was present at the inquest
in the *legal conduct of his office,11
Article 977, which prescribes procedure in in-
quest proceedings, reads in part:
“If any other persons than the justice,
the accused and his counsel, and the coun-
sel for the State, are present at the in-
quest, they shall not interfere with the pro-
ceedings. No question shall be asked a wit-
ness 9 except by the justice, the accused or
his counsel, and the counsel for the State.”
Article 26, V. C. C. P,, reads, in part:
“The County Attorney shall attend the
terms of all courts in his county below the
grade of district court, and shall represent
the State in all criminal cases under exam-
ination or prosecution in said county.”
In the case of Meyers v. State, 26 S.W. 199,
an inquest had been held. The testimony of a witness
Hon. Elmer H. Parish - Page 4 (V-538)
was taken in the presence of the defendant and his coun-
sel, who were offered the privilege of cross-examination,
which offer was refused. The witness died and on trial
the defendant objected to the evidence taken because It
was taken at an inquest, The Court of Criminal Appeals
said8 “It seems wholly Immaterial whether the justice
styled’the proceeding an ‘inquest’ or an ‘examining
trial’ e O . .I1 and held the evidence admissible on final
trial of a charge of murder against the defendant. The
Court held that the justice of the peace may hold an ex-
amining trial while holding an inquest. In efther such
case the defendant may cross-examine witnesses and the
County Attorney has the duty to be present and represent
the State.
In Opinion No. O-3670, a Conference Opinion by
a former Attorney General, It was held that expenses fn-
curred by the County Attorney, compensated on salary ba-
sis, in attending justice courts in lfne of duty fn the
county outside of the county seat are “expenses necessary
in the proper and legal conduct of hfs offfcew wfthfn the
quoted language from Article 3899, V, C. S. 9 and payable
by the county.
We are of the opfnfon that Justices of the Peace
are not required to have the testSmony in an inquest pro-
ceeding taken and transcribed in question and answer form
or to pay for such service rendered by the reporter.
We are also of the opinion that, in the factual
situation stated in your letter, ,the County Attorneywhose
compensation for services is on a salary basis, was aet-
ing in the proper and legal conduct of his office, and was
authorized to employ the reporter to take and transcrfbe
the testimony in the Inquest proceeding in question and an-
swer form for use In the prosecutfon of an anticipated
criminal charge.
SUMMARY
Justices of the Peace are not required
to transcribe testimony, taken by OF under
their direction in an inquest proceeding, in
question and answer form.
Hon. Elmer H. Parish - Page 5 (V-538)
The County Attorney of'wichita County
was authorized to require that the testimony
taken at an inquest be transcribed in ques-
tion and answer form for use by him in the
conduct of his office in Investigating 'cir-
cumstances concerning a death and to employ
a reporter to take and transcribe such tes-
timony at the expense of the county,
Yours very truly,
ATTORNEY
GENERALOF TEXAS
WTW:wb
Encl.
APPROVFD: