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                   THE     AYTORNES          GENERAL
                                OF-XAS




        Honorable William Hunter      Opinion No. ~-248
        District Attorney
        69th Judicial District        Re:   What compensation, if
        404 Danrock Avenue                  any, is a court reporter
        Dalhart, Texas 79022                entitled to receive for
                                            taking and transcribing
                                            depositions involving
                                            indigent defendants and
                                            for examining trial pro-
                                            ceedings, and related
        Dear Mr. Hunter:                    questions?

             YOU request the opinion of this office regarding the
        following questions:

              (1) When a court-appointed attorney for an indigent
        defendant properly secures the deposition of a necessary  wit-
        ness in compliance with Article 39.02 of the Code of Criminal
        Procedure, is an official court reporter of the appointing court
        entitled to be paid compensation for the taking and transcribing
        of such deposition?  If so, whose responsibility is it to pay
        him and what rate of pay may be collected?

              (2) Is an official court reporter entitled to compensation
        for taking and transcribing examining trial proceedings at the
        request of the defendant's court-appointed attorney and the
        prosecuting attorney? If so, whose responsibility is it to
        make such payment and what rate of pay may be collected?

              (3) When a deposition has been taken pursuant to Article
        39.02 and the prosecuting attorney requests a copy for his use
        in connection with the case, is the County Commissioner's Court
        authorized to expend its funds for same?

             In connection with your first question, we find no statutory
        provision which makes the taking and transcribing of depositions
        a part of such court reporter's official duties. The duties of
        a court reporter are enumerated in Article 2324, Vernon’s Civil
        Statutes of Texas. However, it has been held in McCoy v. State,


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108 Cr.R. 583, 2 S.W.2d 242 (19271, that a court reporter may
have official duties which extend beyond the express statutory
requirements and which would rest largely within the discretion
of the trial court. It has also been held in Attorney General
Opinion No. WW-702 (1959) that under Article 2324 the services
Of taking and transcribing depositions for the state could be
legally paid for by the Comptroller in accordance with the fees
prescribed therein.

     It is, therefore, the opinion of this office that the trial
court could, if he found the same to be necessary, exercise his
discretion so as to require his official court reporter to take
the deposition without compensation.  On the other hand, it would
be the court's responsibility to determine in each case if the
reporter should be allowed compensation.  If the reporter is to be
paid compensation, the trial court may approve defendant counsel's
application for same.  Under the applicable existing statute, the
responsibility for presenting the application for reimbursement
for the deposition expense is that of the court-appointed counsel
for the indigent defendant. Article 26.05, Sec. l(c) provides,
in part, that such counsel shall be paid for various undertakings
from the general fund of the county in which the prosecution was
instituted, and among other enumerated services mentioned,  the
following:

        "For experrFes incurred for purposes of investi-
     gation and axpert testimony, not more than $250.00."

     We point out, however, that the specific amount is subject
to approval for reasonableness by the trial court and that the
application of the statute is expressly limited to those cases
involving persons "accused of a felony or a misdemeanor punishable
by imprisonment."

     Upon appeal of the case by the defendant, the cost of tran-
scription of the reporter's notes, including any depositions
used in the trial, is to be furnished the defendant by the state.
Article 40.09, Section 5, Code of Criminal Procedure, provides,
in part:
       II
        . . . The court will order the reporter to
    make such transcription without charge to de-
    fendant if the court finds, after hearing in
    response to affidavit by defendant that he
    is unable to pay or give security therefor.
    Upon certificate of the court that this ser-
    vice has been rendered, payment therefor shall


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        Honorable William hunter, Page 3 (M-248)



             be made from the general funds by the county
             in which the offense is alleged to have been
             committed . . ."

             Since there is no statutory provision as to the amount
        to be paid for taking and transcribing depositions in criminal
        cases, the amount of compensation due insofar as state funds
        are concerned is a reasonable amount. While the court-appointed
        attorney and the court reporter may agree as to an amount be-
        tween them, the final determination as to what constitutes a
        reasonable amount shall be at the discretion of the trial judge,
        taking into consideration all the pertinent circumstances which
        may bear on this matter.  Attorney General Opinion Nos. C-785
        (19661, C-657 (1966), WW-874 (1960). However, in connection with
        the record on appeal of the case, the court reporter's compensation
        for preparation of the transcript has been heretofore passed
        upon by this office and we reaffirm that holding as stated in
        Attorney General Opinion No. WW-702 (1959), wherein it was stated,
        in part:

                "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,
             V.C.S.) . . .II

             Turning now to your second question, concerning compensation
        to be paid the court reporter for taking and transcribing
        examining trial proceedings at the request of both the prose-
        cuting attorney and the defendant's court-appointed attorney, we
        note that there is no statutory provision which makes the taking
        and transcribing of examining trial proceedings a part of said
        court reporter's official duties.  However, we believe our previous
        analysis herein with reference to pre-trial depositions is
        pertinent to our answer to the second question, and we hold that
        the taking and transcribing of examining trial proceedings at
        the request of the court-appointed attorney and the prosecuting
        attorney likewise may become the court reporter's extra-
        statutory duty.




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     Whenever the prosecuting attorney   has requested the tran-
scription of the examining trial proceedings, it is our opinion
that the expense should be borne by the state. The payment of this
expense may be paid by the County Commissioner's Court in accordance
with our subsequent answer to the third question. When the tran-
scription is requested only by defendant's court-appointed counsel,
a different situation is presented.    In an examining trial, a
magistrate is authorized to appoint counsel to defend an indigent
accused. Article 16.01, Code of Criminal Procedure. This office
has heretofore held in Attorney General Opinion No. C-657 (1966)
that Article 26.05 is applicable to examining trials and counsel
who incur expenses for investigation and expert testimony in an
examining trial are entitled to be reimbursed in accordance with the
provisions  of that statute. Insofar as any state funds may be
used, however, the statute sets the limit at "not more than $250.00."
The responsibility for reimbursing the court reporter under that
statute is that of defense counsel and the rate of pay, not
being fixed by statute, is that which the trial court may find
reasonable under ail the pertinent facts and circumstances.

      The third qvestion asks whether the County Commissioner's
Court is authorized to expend its funds for a copy of a deposition
taken pursuant to Article 39.02 and at the request of the pro-
secution for his use. We answer this question in the affirmative.
In Attorney General Opinion No. WW-702 (1959), it was stated, in
part:
        II. . . It is not the official duty of the
     reporter to make a carbon copy of the tran-
     script if so taken, so if one is ordered and
     made for the use of a state agency or depart-
     ment, the price thereof is a matter for ne-
     gotiation between the reporter and that agency
     or department. [See Attorney General's Opinion
     WW-692 (1959)l. If appropriated funds are
     available to that agency or department to
     purchase the copy, the price agreed upon is
     entirely within the discretion of that agency
     or department."

     Thus, any expense by the prosecuting attorney which is neces-
sary and reasonable may be certified by him as provided in
Article 3899(b), Vernon's Civil Statutes, and should be paid
under Article 40.09, paragraph 5, and Attorney General Opinion
C-683 (1966). It is the duty of the Commissioner's Court to
abide by that detarmination and make payment from the general
funds of the county.



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        Honorable William Hunter, Page 5 (M-248)



                               SUMMARY

                 (1) An official court reporter may be entitled
             to compensation for taking and transcribing
             depositions in certain criminal cases under Article
             26.05,  Sec. l(c), C.C.P. and in examining trial
             proceedings under Article 16.01, C.C.P.

                 (21 befendant's court-appointed counsel is
             responsible for presenting application to the
             court for reimbursement of the cost when he alone
             orders the transcription, but the reimbursement is
             subject to statutory limitations. When the prose-
             cuting attorney requests the transcription, he
             should certify the cost of same to the County
             Commissioner's Court for payment.

                (3) The rate of compensation for such services
             is that found by the trial court as reasonable
             under all the pertinent circumstances, subject to
             statutory limitations when requested by the defense
             counsel only.

                 (4) The Commissioner's Court'is authorized
             to pay out of the general funds of the county
             for copies of depositions taken under Article
             39.02, C.C.P. and ordered by the prosecuting
             attorney for his necessary use in handling the
             case.

                                 You&ery        truly,



                                              C. MARTIN
                                                neral of Texas

        Prepared by Robert Darden
        Assistant Attorney General

        APPROVED:

        OPINION COMMITTEE:




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Honorable William Hunter, Page 6 (M-248)



Hawthorne Phillip, Chairman
Kerns Taylor, Co-Chairman
Monroe Clayton
Mario Obledo
David Longoria
John Banks
Robert Owen

EXECUTIVE ASSISTANT
A. J. Carubbi, Jr.




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