              THE      ATI‘ORNEY   GENEZRAL
                           OF 7BYExAs




The Honorable Burton S. Burks,     Sr.        Opinion No. H-,569
Hood County Attorney
P. 0. Box 306                                 Re: Whether the judge of
Granbury, Texas 76048                         a county court is required
                                              to appoint a court reporter
                                              in a criminal ca6e. ”

Dear Mr.   Burke:

       You have requested our opinion regarding    whether the judge of
a county court is required to appoint a court reporter in a criminal
caeo, purruant to paragraph 4 of article 40.09,  Texas Code of Criminal
Procedure.   The relevant portion of the statute states:

               At the request of either party the court reporter
               shall take shorthand notes of all:txiaZ:$&%eedings,
               including voir dire, examination, objections to the
               court’s charge, and final arguments.

          In Jones v. State, 496 S. W. 2d 566 (Tex. Crim. App. 1973) the
 Court held, by a 3-2 majority, that, in order to accomplish reversal
 on the basis of the trial judge’s refusal to order the recording, of the
 voir dire examination, the appellant must show that he has been harmed
 or prejudiced thereby, 0~ that some action occurring during the voir
 dire examination constitutes error.     5,  at 569., Apparently, however,
 appellant need’merely allege that error has occurred.      5;   at 569-70.
 (Di8senting opinion).   Judges Roberts and Odom would dispense with the
 test entirely, and hold the trial judge’6 refusal to require tranrcription
 to be reversible error per se, SxAlvarado       v. State, 508 S. W. 2d 74,
‘75 (fn. 2) (Tex. Crim. App. 1974) and Jones v. State, supla at 569 and
 574 (dissenting opinions).




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The Honorable Burton S. Burks, Sr.,     page 2   (H-569)




    The Court of Criminal Appeals has made clear that an accused
must make an affi,rmative request for a record in order to show error
on appeal. Taylor v. State, 489 S. W. 2d 890 (Tex. Crim. App. 1973).
But as a matter of practice, “[t]rial judges should, even in the absence
of a request to do so, have the court reporter record all the proceedings
unless the same is waived. ” J&, at 892 (fn. 1).

     Most of the cases in which the Court of Criminal Appeals has
interpreted section 4 of article 40.09 have dealt with the trial court’s
 refusal to order the court reporter to record the voir dire examination.
 But
--    see Curry v. State, 488 S. W. 2d 100 (Tex. Crim. App. 1972). Since
the statute itself e.ncompasses “all trial proceedings, including . . .
objections to the court’s charge, and final arguments, “and since para-
graph 5 of article 40.09 provides that “[t]h e court reporter shall report
x     portion of the proceedings requested by either party or directed by
the court,” we are of the opinion that these cases apply with equal force
to “all trial proceedings. ” (Emphasis added). We note, however, that
paragraph 1 of article 40.09 limits the statute’s application to “all cases
appealable by law to the Court of Criminal Appeals.”      Any county court
 conviction, where prosecution originated therein or which provides for
the imposition of a fine of more than $100.00 in a case appealed from an
inferior court,, is appealable to the Court of Criminal Appeals.   Article
4.03,    Texas Code of Criminal Procedure.

    It is our opinion that in all cases appealable by,law to the Court of
Criminal Appeals, a trial court is required by paragraph 4 of article
40.09 to appoint a court reporter to transcribe all trial proceedings,
when requested to do so by either party to a criminal case.     Failure to
comply with the statutory directive may be assigned by the accused as
reversible error.

                              SUMMARY

                    The judge of a county court is required by
               article 49.09,  Texas Code of Criminal Procedure,
               in all cases appealable by law to the Court of
               Criminal Appeal6. to appoint a court reporter to
               transcribe all trial proceedings &hen requested to




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.       .




    The Honorable Burton S. Burks,    Sr.       page 3   (H-569)




                  do so by either party to a criminal case.

                                                     Very truly.yours,




                                            V
    APPROVED:




                            rst Assistant




    Opinion Committee




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