                                                  KEN PAXTON
                                            ATTORNEY GENERAL OF TEXAS




                                                 September 8, 2017



 The Honorable Mark A. Gonzalez                                Opinion No. KP-0163
 Nueces County District Attorney
 901 Leopard, Room 206                                         Re: Whether the district attorney's office
 Corpus Christi, Texas 78401-3681                              must pay for the copy of the reporter's record
                                                               filed with the trial court Clerk pursuant to Rule
                                                               of Appellate Procedure 34.6(h) (RQ-0153-KP)

 Dear Mr. Gonzalez:

         Texas Rule of Appellate Procedure 34.6(h) provides that "[i]n a criminal case in which a
 party requests a reporter's record, the court reporter must prepare a duplicate of the reporter's
 record and file it with the trial court clerk." Tex. R. App. P. 34.6(h). You ask whether a district
 attorney's office must pay the court reporter for this duplicate record when an appellant who is not
 indigent 1 requests and pays for his or her copy of the reporter's recora. 2 To provide context for
 your question, we begin with chapter 52 of the Government Code, which regulates official court
 reporters. See TEX. Gov'T CODE§§ 52.041-.059.

          Urtder chapter 52, each judge of a court of record appoints an official court reporter, who
  is a sworn officer of the court and serves at the pleasure of the court. See id. § 52.041; see also id.
  § 52.042 (providing for the appointment of a deputy court reporter). An official court reporter
  receives a "salary set by the order of the judge of the court." Id. § 52.051(a). This established
  salary is "in addition to transcript fees, fees for a statement of facts, and other necessary expenses
  authorized by law." Id. A person ordering a transcript from the court reporter must do so in
  writing, pay the transcript fee, and pay any additional charged fees as the law allows. Id.
  § 52.047(a), (c), (d); see also id. § 52.047(d) (authorizing the court reporter to charge for
· "(1) postage or express charges; (2) photostating, blueprinting, or other reproduction of exhibits;
  (3) indexing; and (4) preparation for filing and special binding of original exhibits").

         Pursuant to the Rules of Appellate Procedure ("Rules"), the appellate record consists of the
 clerk's record and "if necessary to the appeal, the reporter's record/' Tex. R. App. P. 34.1. The


          'With regard to an indigent defendant, Rule 20.2 provides that "[w]ithin the time for perfecting the appeal,
 an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the
 appellate record furnished without charge." Tex. R. App. P. 20.2.
          2See Letter and Brief from Honorable Mark A. Gonzalez, Nueces Cty. Dist. Att'y, to Honorable Ken Paxton,
 Tex. Att'y Gen. (Mar. 8, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
 Letter" and "Brief' respectively).
The Honorable Mark A. Gonzalez - Page 2                      (KP-0163)



reporter's record comprises the court reporter's transcription of the proceedings and any exhibits
the parties to the appeal may designate, or the "certified copies of all tapes or other audio-storage
devices on which the proceedings were recorded" and any exhibits designated by the appealing
parties along with the certified copies of the logs prepared by the court reporter. Tex. R. App. P.
34.6(a) (defining contents of record). In perfecting his or her appeal, the appellant must request
the reporter's record from the court reporter in writing and "must file a copy of the request with
the trial court clerk." Tex. R. App. P. 34.6(b)(l)-(2). The court reporter, then, "is responsible for
preparing, certifying, and timely filing the reporter's record" with the appellate court upon
satisfaction of certain steps by the appellant, including payment to the court reporter for the
reporter's record. Tex. R. App. P. 35.3(b).

         Rule 34.6(h), about which you ask, requires that an additional copy of the reporter's record
be filed with the trial court clerk when the appeal is from a criminal case. Tex. R. App. P. 34.6(h).
In providing for the duplicate reporter's record, rule 34.6(h) does not address payment of costs
regarding the duplicate reporter's record that is to be filed with the trial court. Id. Further, no
provision in chapter 52 expressly places the cost of the duplicate record on the district attorney's
office when the State is not the appellant. However, provisions in chapter 52 and elsewhere
indicate that the Legislature knows how to impose a charge upon a particular party, such as the
district attorney, and has not done so here. See FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature
knows how to enact laws effectuating its intent); Tex. Att'y Gen. Op. No. KP-0083 (2016) at 3.
As noted previously, subsection 52.047(a) authorizes a court reporter to charge a transcript3 fee to
a person requesting a transcript. See TEX. Gov'T CODE § 52.047(a); see also TEX. CODE CRIM.
PROC. art. 44.0l(f). Subsection 52.047(d) also authorizes the court reporter to charge an
"additional fee" for specified items in addition to the transcript. See TEX. Gov'T CODE
§ 52.047(d). In the context of section 52.047, we construe "additional fee" to mean a fee borne by
the person requesting the transcript in addition to the fee for the transcript. See NEW OXFORD
AMER.ICAN DICTIONARY 18 (3d ed. 2010) (defining "additional" to mean "added, extra, or
supplementary to what is already present or available"). Similarly, article 44.0l(f) of the Code of
Criminal Procedure places the costs of an appeal on the State when the State is the appellant. TEX.
CODE CRIM. PROC. arts. 44.01 (f) (requiring the State to "pay all costs of appeal"), 44.01 (a)-(b)
(authorizing the State to appeal an order of a court in a criminal case in certain instances). Such
costs would include the fee for any reporter's record requested for appeal purposes under Rule
34.6(b). Accordingly, absent an express authorization for a court reporter to impose a fee for the
preparation of the duplicate record on a district attorney's office, we cannot conclude that a court
reporter may charge a district attorney's office to prepare and file the duplicate record. See Dunn
v. State, 683 S.W.2d 729, 730 (Tex. App.-Amarillo 1984, pet. refd) ("The matter of costs in
criminal cases is purely statutory.").



         3
          The Rules and chapter 52 of the Government Code use the term "transcript" inconsistently. Pursuant to
1997 changes to the Rules, the term "transcript" replaced the term "clerk's record." Tex. R. App. P. 34.6, Notes &
Comments (noting that the Rule's term "reporter's record" is substituted for "statement of facts"). Chapter 52 of the
Government Code uses the term "transcript" to refer to the transcript of the evidence in a case reported by the official
court reporter. TEX. Gov'T CODE§ 52.047(a).
The Honorable Mark A. Gonzalez - Page 3              (KP-0163)



        You state that court reporters raise the Texas Court Reporter's Code of Professional
Conduct ("Court Reporter's Code") suggesting that their ethical obligations may require a court
reporter to charge a district attorney's office a fee for preparing the duplicate record. See Brief at
2-3. You tell us that court reporters claim that providing the duplicate record to the trial court
provides a free copy for use by the district attorney's office. See id. at 2. You also tell us the court
reporters point to their ethical duty to not give, directly or indirectly, '"any incentive, reward or
anything of value to attorneys, clients, witnesses, insurance companies, or any other persons or
entities associated with the litigation"' and the requirement that they "'charge all parties to an
action the same price for [a] ... reporter's record."' Id. (quoting Court Reporter's Code rules 4
and 17). Yet, the duplicate record filed with the trial court is not requested by the district attorney's
office but required by Rule 34.6. Tex. R. App. P. 34.6(h). To the extent the Rules place a duty on
the official court reporter to file the duplicate record with the trial court clerk, the court reporter
does not give anything prohibited by the Court Reporter's Code to the district attorney's office or
charge the parties to the litigation inequitably. Rather, the court reporter fulfills his or her duty
under the Rules. Thus, we cannot conclude that the Court Reporter's Code authorizes a court
reporter to charge a district attorney's office for the duplicate reporter's record filed with the trial
court clerk.
The Honorable Mark A. Gonzalez - Page 4            (KP-0163)



                                       SUMMARY

                      Neither the Texas Rules of Appellate Procedure, nor chapter
               52 of the Government Code, nor a court reporter's ethical duties
               authorizes a court reporter to charge a district attorney's office when
               the State is not the appellant for the copy of the reporter's record
               filed with the trial court clerk pursuant to Texas Rule of Appellate
               Procedure 34.6(h).

                                              Very truly yours,




                                              KEN PAXTON
                                              Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee
