Untitled Texas Attorney General Opinion ( 1975 )

April 2, 1975
The Honorable Alton R. Griffin Opinion No. H- 573
Criminal District Attorney
Lubbock County Courthouse Re: Court reporter’s fee
Lubbock, Texas 79401 for transcript for indigent
defendant.
Dear Mr.’ Griffin: ‘,
You request our opinion on several questions conce.rning the
proper fee to be charged by a court reporter for preparing a transcript
‘.
for an indigent defendant in a criminal case. Article 40.,09, sectron 5~,.
Code of Criminal Procedure,as amended by Acts 1967, 60th Leg., ch.
659, p. 1742. provides that the amount of compensation to be charged by
a court reporter for such.services is to be set by the trial judge. While
article 2324, V. T. C. S., limiting the amount a court reporter may charge
for an original transcript, is of general application to all case* in
district court, article 40.09, section 5, Code of Criminal Procedure,
applies only to the preparation of a transcript for an appellate record
by order of the court for an indigent defendant.
. . . where the Legislature makes provision for all
cases generally and also enacts a special statute
governing a special class of case, the special statute
must prevail over the general act in the field where
the special act is operative. Espinosa v. Price, 188
S. W. 2d 576 (Tex. Sup. 1945).
Accordingly, since section 5 of article 40.09 is more specific in its
subject matter than article 2324, the former controls the latter; and
the fee to be charged for preparing such transcript is within the dis-
cretion of the trial jud.ge.
p. 2560
The Honorable Alton R. Griffin page 2 (H-573)
‘You also inquire as to what may be considered a reasonable
fee for the preparation of a transcript under article 40.09, section 5.
Since the trial judge. exercises his discretion in setting the fee, such
determination must be followed by the Commissioners Court absent a
showing of an abuse of discretion. Commissioners Court of Lubbock
County v. Martin, 471 S. W. 2d 100 (Tex. Civ. App. --Amarillo 1971, writ.
ref’d. n. r. e.); see Attorney General Opinions H-544 (1975), C-785
(1966), and C-68-966).,
You state that the Commissioners Court has received a bill
from the district court reporter for preparation of a transcript for
an indigent defendant. The bill is stamped “approved” and signed
by the trial judge. You ask whether a separate statement from the
court certifying the validity of the amount charged should accompany
the judge’s signature. Article 40.09, section 5 provides in part:
Upon certificate of the court that this service
has been rendered, payment therefor shall be
made from the~ge,neral funds by the county. . . .
A “certificate” has been construed to be a signed, written
‘7.
testimony to the truth of something. Friendswood Ind. Sch. Dist. v.
National Surety Corp., 423 S. W. 2d 95 (Tex. Civ. App. --Houston
(14th Dist) 1967), reversed on, other grounds 433.S. W. 2d 690 (Tex.
Sup. 1968).
The court in Kay,-Vee Realty Co. v. Town Clerk of Ludlow ,243
N. E. 2,d 813 (Mass. 1969) quoting Black’s Law Dictionary (4th ed.)
defines “certificate” ,a* a:
. . . written assurance or official representation
that some act has or has not been done; or some
event occurred, or some legal formality has been
*
complied with.
A certificate ins not necessarily nor usually sworn to. 14 C. J.S.
Certificate, p. 111.
p. 2561
-
The Honorable Alton R. Griffin page 3 (H-573)
Although the bill from the court reporter contains the cause ,~
number, defendant’s name, the nature of the service and the amount
due, it does ndt expressly state that “this service has been rendered. ”
Since the judge must order the reporter to make such a transcription,
we believe it is fair to,imply by the judge’s signing the bill that, in
fact, such services have been rendered in accordance with the order
and that the sum charged is that which was set by the judge. Cf.,
Attorney General Opinion M-1159 (1972). A separate statement from
the judge certifying that the transcript has been duly prepared is not
necessary. See also Attorney General Opinion C-785 (1966).
Finally, you ask whether the judge’s signature alone is suf-
ficient certification or whether his capacity as district court judge
should also be indicated.
Although designation of the capacity in which he is signing is
desirable, we believe it is not necessary. As long as a.judge is per-
forming an authorized act in his official capacity, his signature alone
is sufficient authorization.
SUMMARY
Under article 40.09, section ‘5, Code of %riminal
Procedure, the fee to be charged by a court reporter
for preparing a ,transcript for an indigent defendant
is to be set by the trial judge. A separate statement
certifying the validity of the amount charged is not
necessary if the court reporte,r’s bill sufficiently
identifies the reason for the charge and is signed by
the judge. In signing said bill, the judge need not,
designate his official capacity, although such a
pra<.tice. would be desirable.
,Very trllly yours,
I,‘~ Attorney General of Texas
p. 2562
The Honorable Alton R. Griffin page 4 (H- 573)
APPROVED:
DAVID -M. K.ENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
lg
p. 2563