Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 17, 2013
The Honorable Robert Henneke Opinion No. GA-l 023
Kerr County Attorney
County Courthouse, Suite BA-103 Re: Whether an official court reporter for a
700 Main Street multi-county judicial district is a state
Kerrville, Texas 78028 employee or a county employee and related
questions (RQ-1124-GA)
Dear Mr. Henneke:
You ask whether the official court reporter for the 198th Judicial District (the "District")
is a district employee (and thus an employee of the state) or a county employee. 1
In approaching your question, we first note that state law does not specify the
employment status of district court reporters for all purposes. Indeed, the courts and the
Legislature have recognized that a public servant can simultaneously be an employee of the state
for one purpose and the employee of another entity for another purpose. 2 Because a district court
reporter's employment status may depend on the specific context, we cannot answer your
original question with a designation that will be applicable in all instances.
You have, however, supplemented your original request to ask four questions about a
district court reporter's employment in specific circumstances. 3 Your first supplemental question
is, "Who has authority to terminate the employment of a [district] Court Reporter?" Request
Supplement at 1. "Each judge of a court of record" appoints an official court reporter. TEX.
1
See Letter and Brief from Honorable Robert Henneke, Kerr Cnty. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. (Apr. 22, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter" & "Brief').
2
See, e.g., Canales v. Jim Wells Cnty., No. 2:12-CV-171, 2013 WL 244835, at *1 (S.D. Tex. Jan. 22, 2013)
(noting precedent for treating a district attorney as a state official with respect to prosecutorial functions but as a
county official with respect to employment functions); TEX. GOV'T CODE ANN. § 76.006(a), (c) (West 2013)
(providing that community supervision and corrections department employees "are not state employees" for general
purposes but "are state employees for the purposes of' indemnification by the state under chapter 104 of the Civil
Practice and Remedies Code and for participation in a state employee group benefits plan).
3
Requestor's Supplemental Email (June 10, 2013) (on file with Op. Comm.) ("Request Supplement").
The Honorable Robert Henneke - Page 2 (GA-.1023)
Gov'r CODE ANN. § 52.041 (West 2013). "An official court reporter is a sworn officer of the
court and holds office at the pleasure of the court." !d. (emphasis added). All official court
reporters "must take the official oath" required of state officers. !d. § 52.045(a). In a district
court, the official court reporter "shall be paid a salary set by the order of the judge" and funded
by the county, 4 subject to certain limitations. /d. § 52.051; see also id. § 52.054(a) (in a multi-
county judicial district, a district court reporter's salary is apportioned among the counties in
proportion to population). 5 Although the county generally pays a district court reporter's salary,
"[n]o county official has the authority to overrule the district judges with regard to the ... firing .
. . of official court reporters in the state judicial system." Bloom v. Bexar Cnty., 130 F.3d 722,
725 (5th Cir. 1997). Thus, the district judge who appoints the district court reporter has the sole
authority to terminate him or her.
Your second and third supplemental questions pose the following hypothetical situations:
"If a Court Reporter initiates an employment discrimination complaint, who would be the correct
Respondent party" in litigation? Request Supplement at 1. "If a Court Reporter obtained a
monetary judgment following employment law type litigation (Title VII, Tex. Labor Code Ch.
21, ADA, etc), would the State or the counties within the multi-county judicial district be liable
to satisfy that judgment? If the counties themselves are liable, how would the liability be
apportioned amongst the counties within a multi-county district?" !d. We cannot determine the
correct respondent party of a hypothetical lawsuit, as it will depend on the underlying facts and
the type of claim brought. Nor can we speculate on how liability would be apportioned in a
hypothetical lawsuit. See Tex. Att'y Gen. Op. No. GA-0430 (2006) at 4 (questions of potential
liability are fact-specific and cannot be resolved in the opinion process). Thus, we decline to
address your second and third supplemental questions.
In your last supplemental question, you ask: to the extent the counties within the District
have any employment liability, what authority do they have "to influence or direct the
employment of the court reporter so as to minimize the counties' potential liability?" Request
Supplement at 1. In analyzing whether a county was the "employer" of a district court reporter
for purposes of the Americans With Disabilities Act, the Fifth Circuit used a hybrid economic
realities/common-law control test to determine the extent of the parties' employment
relationship. Bloom, 130 F.3d at 725-26. The court noted that "[c]ourt reporters for the Texas
district courts are subject solely to the control of the elected state district judges" and that "[n ]o
county official has the authority to overrule the district judges with regard to the hiring, firing, or
assignment of official court reporters in the state judicial system." !d. at 724-25. Given that the
Legislature chose "to explicitly vest control of state district court reporters in state district judges
4
But see TEX. GOV'T CODE ANN. § 24.579(c) (West Supp. 2012) (providing that the state shall fund the
salary of the 435th District Court reporter, "[n]otwithstanding any other law").
5
The District is a multi-county judicial district currently composed of Bandera and Kerr counties. See Act
of May 26, 20 I 3, 83d Leg., R.S., H.B. 3153, § 1.03 (codified at TEX. GOV'T CODE ANN. § 24.377).
The Honorable Robert Henneke - Page 3 (GA-1023)
rather than counties," a Texas court would likely conclude that a county has no authority to
influence or direct the employment of a district court reporter. ld at 724.
The Honorable Robert Henneke - Page 4 (GA-1023)
SUMMARY
The employment status of a district court reporter is
context-specific and cannot be determined for all purposes. The
district judge who appoints an official district court reporter has the
sole authority to terminate the court reporter. A county has no
authority to influence or direct the employment of a district court
reporter.
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Becky P. Casares
Assistant Attorney General, Opinion Committee