                                    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




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