            ~ii.
         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

      jwb




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