                        AUSTIN.    TSXAS       78711




                                   July 25,    1973


The Honorable Royce Adkins                            Opinion   NO. H- 69
District Attorney
39th Judicial District                                Re:   Whether Court Reporter
Haskell,  Texas 79521                                       is entitled to be paid for
                                                            preparing a Statement of
                                                            Facts in connection with
                                                            an application for writ
                                                            of habeas corpus under
Dear   Mr.   Adkins:                                        Article Il. 07, V. C. C. P.

      Your letter requesting our opinion asks whether a court reporter
who prepares   a transcript of the evidence at a hearing on a writ of
habeas corpus is entitled to be compensated    for it by the county.

       Article Il. 07, Vernon’s Code of Criminal Procedure,  governing
the procedure for taking evidence on writs of habeas corpus,  in per-
tinent part reads as follows:

                      “It shall be the duty of the official court
               reporter of the district judge or judges so de-
               signated to forthwith prepare a narration of the
               facts adduced in evidence upon any suchhearing
               and transmit the same, together with the judge’s
               finding of fact and conclusions   of law, to the
               clerk of the Court of Criminal Appeals within
               ten days of the date of such hearing.”

       As your request notes, Article     11.07 fails to specifically    provide
payment to the court reporter in the case of an indigent petitioner,          as
compared to the provisions     of Article  40.09,   V. C. C. P.,   (dealing with
the preparation   of a Statement of Facts for use on direct appeal from
the trial court):




                                    p.   296
The Honorable   Royce   Adkins,   page 2 (H-69)




                    “A party desiring to have included in the
             record a transcription     of notes of the reporter
             shall have the responsibility       of obtaining such
             transcription    and furnishing     same to the clerk
             in duplicate in time for inclusion in the record
             and defendant shall pay therefor.         The court
             will order the reporter to make such transcrip-
             tion without charge to the defendant if the court
             finds, a&ter hearing in response to affidavit by
             defendant,    that he is unable to pay or give secu-
             rity therefor.     Upon.certificate    of the court that
             this service has beeh rendered,         payment there-
             for shall be made from the general funds by the
             county in which the offense is alleged to have
             been committed.       The court reporter shall re-
             port any portion of the proceedings requested by
             either party or directed by the court. (emphasis
             added).

      There are no Texas cases dealing with this particular      situation.
However,   there is authority indicating that court reporters   may obtain
compensation    for preparing a transcript of proceedings   even if not a
part of his official duties.  See Attorney General’s   Opinion No. V-976
(1949).


       In McCoy v. State, 2 S. W. 2d 242 (Tex. Crim. 1928), it was held
that a court reporter   may have official duties which extend beyond the
express   statutory requirements      which would rest largely within the dis-
cret~ion of the trial court,    Attorney    General’s  Opinion No. WW-702
(1959) stated that services    for taking and transcribing     depositions  for
the State could be legally paid for by the Comptroller        in accordance
with the fees prescribed     in Article    2324, V. T. C. S. Obviously the ques-
tion presented in your request is not answered directly by these autho-
rities since there is the express       statutory require’ment of Article   11.07
that the court reporter    prepare a Statement of Facts.




                                      p.   297
The Honorable     Royce   Adkins,   page 3      (H-69)




       Article   16.09,  V. C. C. P.,      requires the reducing to writing of
testimony    given at an examining        trial.   As noted in Attorney General’s
Opinion No. M-303       (1968) :

                      II . . . [A]n official appointed court reporter
              who is required by the Magistrate        to transcribe  and
              give the court the ‘original’ Statement of Facts is
              entitled to reasonable      compensation   for his services
              to the court aside from any private arrangement          he
              may have with defense counsel.




                     “The examining trial is an official hearing
              authorized by law.   Once a reporter is officially
              appointed by the Magistrate  his Statement of Facts
              become the work product of the court and may not
              be withheld for the private advantage .of defense
              counsel. ”

       An Article 11.07 habeas corpus hearing is “an official hearing
authorized  by law. ” The court reporter’s     Statement of Facts becomes
“the work product of the court. ” Therefore      such transcripts  should be
on an equal basis with transcripts    of an examining trial .(Attorney Gen-
eral Opinion V-976 (1949), a tape recording of a radio program (Attor-
ney General Opinion WW-874      (1960) when ordered bythe iiotrict attorney.
See Attorney General’s   Opinion WW-1334      (1962).

       It is our opinion,    therefore,     that a court   reporter   who prepares   a
statement of facts reflecting the testimony given at a hearing on a writ of
habeas corpus is entitled to be compensated   for it by the State or County.

                                        SUMMARY

                      A court reporter who prepares   the narration of
               the facts adduced in evidence at a hearing on a writ of




                                          p. 298
The Honorable   Royce   Adkins,   page 4    (H-69)




             habeas corpus under Article         Il. 07, V. T. C. C. P.,
             is entitled to be compensated        for its preparation
             by the State or County.

                                     Very    truly yours,




APPI$@VED:




DAVID M. KENDALL,         Chairman
Opinion Committee




                                     p.    299
