        THEA~~-~RNEY                 GENERAL
                    OFTEXAS




                       September 11, 1959

Honorable Robert S. Calvert
Comptroller of Public Acco,unts
Capitol Station
Austin, Texas
                              Opinion No. WW-702
                               Re:    Authority of the Comp-
                                      troller to approve a
                                      voucher for payment to
                                      a court reporter for
                                      taking oral deposition
                                      of a witness of a pend-
                                      ing case, under Article
                                      2423a, Vernon's Civil
                                      Statutes and related
Dear Mr. Calvert:                     Articles.
       We have received your letter of August 6, 1959, which
reads as follows:
            "This department has received a voucher
       presented by your department for payment to
       Jack K. Tingle, a court reporter, for taking
       oral depositions from a witness. This voucher
       is being returned to you as we are doubtful
       that it is properly payable by the state in
       view of the holdings in Attorney General's
       Opinion number V-409 and Articles 2324a,
       2324, 2326, 3746, and Rule 194 of R.C.P.
       This department will appreciate hearing from
       you as to your findings in the event you find
       that this voucher is payable by the state.
       There is no litigation pending which will have
       a bearing on this question."
       Attorney General's Opinion V-409 (1947) relating to
the duty of a court reporter under Article 119, V.C.C.P.
reads in part as follows:
                                                               .   .




Honorable Robert S. Calvert, Page 2 (ww-702)


            "A court reporter is an officer of
       the court. In performing the functions
       and duties imposed upon him by Article
       119, he is merely performing an added
       duty for which no provision is made for
       extra compensation by the State."
       Article 232&a, Vernon's Civil   Statutes,   reads in
part as follows:
             "Section 1. All official District
       Court   reporters are authorized to take
       depositions of witnesses, and to receive,
       execute   and return commissions, administer
       oaths and affidavits, in connection with
       such depositions, and make a certificate of
       such fact, and do all other things necessary
       in the taking of such depositions in accord-
       ance with existing laws.     (Emphasis ours).
       Article 2326, Vernon's Civil Statutes, is the
general statute establishing compensation of court re-
porters in various categories of counties. In each cate-
gory the stipulated compensation is specifically set to be
in addition to the "transcript fees" that may be charged
by the reporter.
       Article 3746, Vernon's Civil Statutes, and Rule 194,
Rules of Civil Procedure, impose a duty on the addressee of
a commission to take the deposition of a witness.
        We shall assume it is the official duty of the court
reporter to take the deposition of witnesses in proceedings
before the court. May, then, the reporter charge the state
a fee for such service, and if so, how much may he charge
the state?
       Article 2,324,Vernon's Xiv11 Statutes, reads as
follows:
            "Each official court reporter shall:
            "Attend all sessions of the court; take full
       shorthand notes of all oral testimony offered in
       every case tried in said court, together with all
       objections to the admissibility of the evidence,
       the rulings and remarks of the court thereon, and
.   .




        Honorable Robert S. Calvert, page 3 (W-702)


              all exceptions thereto; take full shorthand
              notes of closing arguments when requested so
              to do by the attorney for any party to such
              case, together with all objections to such
              arguments, the rulings and remarks of the
              court thereon, and all exceptions thereto;
                   "Preserve all shorthand notes taken in
              said court for future use or reference for a
              full year, and furnish to any person a trans-
              cript in question and answer form of all such
              evidence or other proceedings,
                                         - _ or any portion
              thereof as such person may order, upon-the pay-
              ment to him of the fees provided by law.
                   "When any party to any suit reported by any
              such reporter shall desi.rea transcript of the
              evidence in said suit, said party may apply for
              same and the reporter shall make up such trans-
              cript and shall receive as compensation therefor
              the sum of not more than thirty cents per one
              hundred words for the original thereof. In the
              event said transcript should be ordered made in
              narrative form, then such reporter shall make up
              same in duplicate in narrative form, and shall
              receive as compensation therefor the sum of
              twenty cents per hundred words for the originrl;
              provided, however, that no charge shall be made
              for the duplicate copy, and provided further, that
              in case any reporter charges more than the fees
              herein allowed he shall be liable to the person
              paying the same a sum equal to four times the ex-
              cess so paid.
                   "Provided further, that when such court re-
              porter is requested to report the ciosing arguments
              in any case, the clerk of the court shall tax as
              costs in such case the sum of Five Dollars ($5.00).
              Said fee shall be paid as other costs in the case,
              and paid by said clerk, when collected, into the
              General Funds of the county in which said court
              sits; provided further, however, that if a trans-
              cript of such arguments or any portion thereof be
              ordered by any party, said reporter shall prepare
                                                             ‘      .




Honorable Robert S. Calvert, page 4   (WW-702)


       same and charge therefor at the rate herein
       provided for transcripts in question and ans-
       wer form; provided, that in case any reporter
       charges more than the fees herein allowed he
       shall be liable to the person paying the same
       a sum equal to four times'the excess so paid.
       As amended Acts 1955, 54th Leg., p. 1033, ch.
       390, 81."
        The above statutes and rules establish that the report-
er is authorized to take depositions, and in certain instances
a duty to do so is imposed upon him. It is clear that a deposi-
tion is evidence taken from a witness in a judicial proceeding
(see 12 Words and Phrases, 253, and numerous cases cited there-
in). We feel the duty of the reporter relative to taking deposi-
tions is the same as his duty to take other oral testimony in
the proceeding.
        It will be noted that the only duty imposed upon the
reporter by any of the above statutes is to "take" the testimony
offered in full shorthand notes.  There is no duty imposed on
a reporter to transcribe those notes unless and until he is re-
quested to do so. It is specifically provided that if he is
requested to transcribe the testimony, he may charge a trans-
cript fee.
        Although the statute does not provide any fee for
"taking" the deposition when the duty to do so is imposed on a
reporter, there is a statutory scheme for his fees when he makes
a transcript thereof. If the transcript is written in other
than narrative form, the reporter may charge, and the state
may pay, not to exceed thirty cents per one hundred words for
the original thereof. (Article 2324). It is not the official
duty of the reporter to make a carbon copy of the transcript
if so taken, so if one is ordered and made for the use of a
state agency or department, the price thereof is a matter for
negotiation between the reporter.and that agency or department.
(See Attorney General's Opinion W-692 (19%)).     If appropriated
funds are available to that agency or department to purchase
the copy, the price agreed upon is entirely within the discre-
tion of that agency or department.
        Therefore, you are advised that in our opinion, the
Comptroller may issue warrants in payment for services rendered
*   .




        Honorable Robert S. Calvert, Page 5     (W-702)


        by court reporter8 in transcribing depositions for the state
        in accordance with the fees prescribed in Article 2324 of
        Vernon's Civil Statutes.

                                 SUMMARY

                     The Comptroller may issue warrants
                     in payment for services rendered
                     by court reporters in transcribing
                     depositions for the state in accord-
                     ance with the fees prescribed in
                     Article 2324 of Vernon's Civil
                     Statutes.
                                      Yours very truly,
                                      WILL WILSON
                                      Attorney General of Texas



                                              Tom I. McFarling
        TIM:mfh:rm                            Assistant

        APPROVED:
        OPINION COMMITTEE
        Geo. P. Blackburn, Chairman
        B. H. Tlmmins, Jr.
        C. Dean Davis
        William E. Allen
        Jay Howell
        REVIEWED FOR THE ATTORNEY GENERAL
        BY: W. V. Geppert
