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                         November 7, 1968.

Honorable James E. Barlow             Opinion No. M-303
Criminal District Attorney
Bexar County Courthouse               Re: Authority of a ,Justiceof
San Antonio, Texas                        the Peace, sitting as a
                                          Magistrate, to require
                                          certification and delivery
                                          of Statement of Facts under
                                          stated circumstances pur-
                                          suant to Articles 16.09
Dear Mr. Barlow:                          and 17.30, C.C.P.
     You request the opinion of this office as to the auth-
ority of a Justice of the Peace, sitting as a Magistrate,
to require a court appointed reporter paid by defense counsel
and without cost to the couhty to give the original trans-
cribed Statement of Facts to the Magistrate for certification
pursuant to Article 16.09, Texas Code of Criminal Procedure
and for delivery to the clerk of the propqqcourt in accord
with Article 17.30, Texas Code of Criminal Procedure. YOU
also ask whether a court reporter's failure upon the advice
of defense counsel, to tender the Statement of Facts for
certification and delivery const~itutesa basis for contenupt            ..
of court proceedings. In answering your question, we assume
that the reporter accepted his appointment as an official
court reporter and that defense counsel did not object~to
such appointment.
     Article,16.09 describes the procedure for reducing to
writing testimony given before a Justice of the Peace, when
sitting as a Magistrate:
           "The testimony of each~witness shall be re-
      duced to writing by or under the direction of the
      magistrate, and,shall then be read over to:the
      witness, or he may read it over himself. Such
      corrections shall be made in-the same as the
      witness may direct: and he shall then,sign the
      same by affixing thereto his name or mark. All
      the testimony thus taken shall be certified to
      by the magistrate. In lieu of the above pro-
      vision, a statement of,facts authenticated by


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Hon. Jemes E. Barlow, Page 2    (M-303 )


      State and defense counsel and approved by the
      presiding magistrate may be used to preserve the      '
      testimony of witnesses."
     Article 16.09 imposes a mandatory1 duty on the Magistrate
to have a written record of each examining trial. Attorney
General's Opinion No. C-562 (1965).
     Your opinion request states that "The Magistrates have
been using tape recording machines and each side can replay
the testimony of any witness any time he desires. (No trans-
cription is sent to the Clerk of the District Courts, and
none has ever been demanded)."
     The mandatory requirements of Article i6.09 would seem
to preclude use of tape recording machines -.-
                                           as a substitute
for a written record.
     Article 17.30 reauires the 'Maaistrateto certifv the
proceedings before him. and deliver them to the prop& court
for use by the grand iury and the prosecuting office:
           "The magistrate, before whom an examination
      has taken place'upon a criminal accusation, shall
      certify to all the proceedings,had before him, as
      well as whe?%heTi&zharges, holds- - to bail or
                                                  _
      commits, and transmit them, sealed up, to the court
      before which the defendant may be tried, writing
      his name across the seals of the envelone., The
      voluntary statement of the defendant, the testi- '
              11 bonds, .
                        and
                         .-_-everxother-
              , shall be thus"delivere
      of the proper court, without delay.* See Kimbrough
      v. State:,28 Crim.Rep. 367, 13 S.W. 218 Cl8§0).
     Neither the mandatory provision of Article 16.09 nor the
certification or delivery provisions of Article 17.30 ray
be complied with if the reporter appointed under the direction
of the Magistrate refusesor fails to tender the Statement of
Facts to the Magistrate,
     kowever, an officially appointed court report&  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. See
Attorney General's Opinion M-248 (19681.



1
    Emphasis added throughout.
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Hon. James E. Barlow, Page 3   (M-303 )


      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 mav not     withheld for the private advan-
tage of defense counsel.
     The very purpose of Article 16.09
                                  _     is to assure
                                       _.     _      that the
testimony of witnesses be preserved and When done by a court
appo;ntedhreporter, it must be made available to the court
so t at t e Magistrate may fulfill his statutory duty. 16
Tex.Jur. 2d, 314, Criminal Law, Sec. 156, The Examining Trial -
Purpose. A failure to do so constitutes criminal contempt of
court by unlawfully interfering with its proceedings. 12 Tex.
Jur.Zd 484, Contempt, Sec. 3.
     Defense counsel is an officer of the court and as such
may be held guilty of contempt if he fails in his duty with
respect to the execution of the court's order. 12 Tex.Jur.
2d, 498, Contempt, Sec. 17.
     Article 2386, Vernon's Texas Statutes, states
that:
           "Justices of the peace shall also have   power:

           1.   To punish any party guilty of a contempt
           of court by fine not to exceed twenty-five
           dollars and by imprisonment not exceeding
           one day."
     You are therefore advised that a Justice of the Peace,
sitting as a Magistrate, has the authority and the duty to
require a reporter appointed by the Magistrate to submit the
original of his Statement of Facts (for which he receives
reasonable compensation) for certification and delivery to
the proper court. Anyone interfering with this judicial pro-
ceeding may be held in criminal contempt of court.
                                             t
                       SUMMARY
             A Justice of the Peace, sitting as
             a Magistrate, has the authority and
             mandatory duty to require examining
             trial proceedings to be reduced to
             writing, certified, and delivered '
             to the proper court.  When a re-
             porter is officially appointed by
             the Magistrate, he must be paid a



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Hon. James E. Barlow, Page 4   (M-303   )


            reasonable compensation for his ser-
            vices in preoarina an oriainal State-
            ment of Facts for the Court even though
            the reporter was first retained and
            paid bv defense counsel. Anyone in-
            terfering with this judicial proceeding
            may be held in criminal contempt of
            'court.
                                 V&truly    yours,




Prepared by Charles T. Rose
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
R. L. Lattimore
Polk Shelton
James Quick
W. 0. Shultz
EXECUTIVE ASSISTANT ATTORNEY GENERAL
A. J. Carubbi, Jr.




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