                         June 8, 1972


Honorable K. Baker                   Opinion NO. M-1159
District Attorney
Shelby-Panola Counties               Re:   Whether a court order
l?.0. Box 633                              is required for tran-
Carthage, Texas 75633                      scripts of individuals
                                           in state and federal
                                           penitentiaries under
Dear Mr. Baker:                            a pauper's oath.
     You have requested an opinion from our office on the
following questions:
         "Whether a court order is required for tran-
    scripts of individuals in state and federal peni-
    tentiaries under a pauper's oath."
    Article 40.09, Sec. 5, Vernon's Code of Criminal Procedure,
    provides as follows:
         "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 3.n time for inclusion in the record
    and defendant shall pay therefor. The court will
    order the reporter to make such transcription with-
    out charge to defendant if the court finds, after
    hearing in response to affidavit by defendant that
    he is unable to pay or give security therefor.
    Unon certificate of the court that this service
    has been rendered, payment therefor shall be made
    from the general funds by the county in which the
    offense is alleged to have been committed in a
    sum to be set by the trial judge. The court re-
    porter shall report any portion of proceedings
    requested by either party or directed by the court."
    (Emphasis added.)




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Honorable K. Baker, page 2.     (M-1159)


     In Ex Parte Ambrose, 145 TexiCrim. 582, 170 S.W.2d 731,
732 (1943) the appellant sought to excuse his failure to
file a stacement'of facts by saying that he filed an affidavit
of inability to pay for a transcript of the testimony but
the court reporter failed to furnish the statement of facts.
The Court thereupon overruled appellant's contention on the
ground that it did not appear:

     . . . that the affidavit of inability to pay for
    a transcript of the testimony was presented to the
    trial judge or that an order was made by the trial
    judge directing the court reporter to prepare, and
    to furnish the appellant, a transcript of the testi-
    mony.
          "In order for an accused to avail himself of
     the right to have the court reporter prepare a
     transcript of the testimony because of his inability
     to pay therefor, it is necessary not only that the
     affidavit comply with the statute, Vernon's Ann.
     C.C.P., Art. 760, sub division 6, but that it be
     called to the attention of the trial court, and
                must reflect. P'ultonv. State,.Tex.
     t.th;';;;ord
               101 S.W.2d 251 ('1937),and au%orities
     theie ciied."
     In 1965, the Code of Criminal Procedure, including Arti-
cles 760 thereof, was revised, and the new Article 40.09
replaced the old Articles. In a Special Commentary there-
under, at pages 154-155 of Volume 5 of Vernon's~Code,of
Criminal Procedure, the Honorable John F. Onion, Jr., says,
in part:
     "If a pauper's oath is filed to obtain a tran-
     script of the court reporter's notes on appeal,
     the court may conduct a hearing to determine
     indigency. If the record is ordered on a pauper's
     oath, the court reporter is to be paid in full
     by the county."
This removed a thorn in the side of court reporters in crimi-
nal cases who many times got nothing at all under former
practice.




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.       1




    Honorable K. Baker, Page 3.      (M-1'159)


         It is our conclusion that since the statute confers a
    discretion upon the presiding judge to order the court reporter
    to prepare the transcript either at the defendant's expense
    or at the expense of the county where an affidavit of inability
    to pay is filed, and the judge may either accept it or reject
    the affidavit and order a hearing thereon, the burden is upon
    the defendant both to present his affidavitand to obtain a
    court order thereon before the court clerk or reporter is
    required to prepare the record at county expense.
         We therefore hold that neither a clerk of the court nor
    a court reporter is required to prepare and furnish any por-
    tion of the record to individuals confined in State and Fed-
    eral Penitentiaries under a pauper's oath without the indi-
    vidual first making a timely request therefore, bringing the
    affidavit in forma pauperis to the trialscourt's attention,
    and obtaining a court order for the record. An indigent
    seeking to avail himself of the benefit of this statute,muSt
    not only act with diligence in filing the pauper's oath, but
    he must bring,it to the attention of the trial court. Ex
    Parte Thorbus, 455 S.W.2a 756, 758, 761 (Tex.Crim. 1970~
         The Clerk has only such powers and duties as are ex-
    pressly or impliedly conferred upbn hitiby law. 47 Tex.Jur.
    2d, 139-140, Public Officers, Sec. 106. He has no duty or
    power to prepare the transcript for the indigent in the
    absence of an order by the trial court.
                             SUMMARY
                 A Clerk of the Court, or a Court Reporter,
            is not required to prepare and furnish any
            portion of the record to individuals confined
            in State and Federal Penitentiaries under a
            pauper's oath in the absence of a court order.
                                   YOJ&S very truly,




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Honorable K. Baker, page 4.     (M-1159)



Prepared by E; L. Hamilton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kern6 Taylor, Chairman
W. E. Allen, Co-chairman
Ben Harrison
Harold Kennedy
Houghton Brownlee
Lewis Jones
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOIA WHITE
First Assistant




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