Untitled Texas Attorney General Opinion ( 1977 )

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THEAITORNEYGENERAL
OF TEXAS
AUSTIN. TRXAS 78711
March 10, 1977
The Honorable Oscar B. McInnis Opinion No. H-952
Criminal District Attorney
Hidalgo County Re: Propriety of per diem
Edinburg, Texas 78539 payments to visiting
official court reporter
from another district.
Dear Mr. McInnis:
You advise that the official court reporter for the
117th District Court~in Nueces County substituted for the
official court reporter of the 206th District Court of
Hidalgo County when the judge of the 117th District Court
was temporarily assigned to hold court for the judge of the
206th District Court in Hidalgo County. You ask:
Can we . . . pay a visiting court reporter
from another d,istrict per diem?
Official court reporters are sworn officers of the
court appointed by district and criminal district judges.
V.T.C.S. art. 2321. The last paragraph of article 2326a,
V.T.C.S., states:
LWlhenever any official or deputy official
shorthand reporter is called upon to report
the proceedings of any special term of court,
or on account of the sickness of any official
shorthand reporter of any Judicial District,
necessitating the employment of a shorthand
reporter from some other county within the
state, then the shorthand reporter so employed
shall receive and be paid all actual and
necessary expenses in going to and returning
from the place where he or she may be called
on to report the proceedings of any regular
or special terms of court.
P. 3975
. -
.
The Honorable Oscar B. McInnis - page 2 (H-952)
Assuming, without deciding, that this court reporter
falls within article 2326a, we do not believe it authorizes
him to receive per diem.
Attorney General Price Daniel considered an almost
identical question from Harrison County in Attorney General
Opinion V-446 (1947). He was advised that the regular
shorthand reporter for the 71st Judicial District Court there
became ill and that the official reporter for the 4th
Judicial District in another county substituted for him.
The inquiry to Attorney General Daniel was:
If... Lthe visiting reporter] should be
paid under the last paragraph of Article
2326a, that is, his actual and necessary
expenses in going to and returning from the
place where he or she may be called on to
report the proceedings, then is he entitled
to any per diem in addition to his necessary
and actual expenses? -Id. at l-2.
After deciding that the visiting reporter should receive
actual and necesary expenses, the opinion answered:
[IJt is the opinion of this Department
that the substitute court reporter who is
the official court reporter for the 4th
Judicial District would not be entitled to
any per diem in addition to the actual and
necessary expenses. He would, of course,
continue to draw his regular salary from
the county or counties in which he is
regularly employed. -Id. at 4.
We believe the conclusion of Attorney General Opinion
V-446 is sound. --
See also Attorney General Opinion V-959
(1949).
It has been suggested article 2323 requires that per diem
in addition to expenses be paid visiting official court
reporters. That statute provides in pertinent part:
In case of illness, press of official work,
or unavoidable disability of the official
shorthand reporter to perform his duties . . .
the judge of the court may . . . authorize
P. 3976
The Honorable Oscar B. McInnis - page 3 (H-952 1
a deputy . . . _reporter
-- _to act during the
absence of said official . . . reporter, and
said deputy . . . shall receive, during the
time he acts . . . the same salary and fees
as the official . . . reporter . . . but
said official . . . reporter shall also receive
his salary in full during such temporary
disability to act. The necessity for a deputy .
official . . . reporter shall be left entirely
within the discretion of the judge of the court.
When an official court reporter of one judicial district
substitutes for an official court reporter of another judicial
district, he does not thereby become a deputy official
reporter of the judicial district in which he is substituting;
he merely performs additional duties of his own office.
Compare Bexar County v. Gazley, 172 S.W.2d 702 (Tex. Civ.
APP. -- San Antonio 1943, no writ) with Groves v. Gould, 102
S.W.2d 1114 (Tex. Civ. App. --Ft. Wx -nowrit), for
distinctions between an official reporter of a judicial
district and a deputy official reporter for the district.
We do not believe article 2323 is applicable to a sub-
stitution by the official court reporter of one judicial
district for the official court reporter of a different
judicial district. Consequently, we answer your question
in the negative.
SUMMARY.
A visiting official court reporter from
a judicial district in another county who
substitutes for the official court reporter
of the county visited is not entitled to be
paid per diem for services rendered to the
county visited in addition to expenses.
A visiting court reporter covered by article
2326a, V.T.C.S. is entitled to receive his
actual and necessary expenses and continues
to draw his regular salary from the county
or counties in which he is regularly employed.
p. 3977
The Honorable Oscar B. McInnis - page 4 (H-952)
APPROVED:
-..
DAVID G KENDALL, First Assigtant
Opinion Committee
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P. 3978