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                                                              R-837



                   TEEATTORNEYGENERAL


    PRICE DANIEL
    ATTORNEY
          GENERAL
                                   October 17, 1947


           Hon. George R. Sheppard
           Comptroller of Public Accounts
           Austin, Texas              opinion Ro.     v-409
                                        Re:   The ep liceblllt~ of
                                              h-t. 7 k!
                                                      0, V.C.C.P.,
                                              to payment of the
                                              court reporter bj the
                                              State In 8 habeas oor-
                                              pus action, tried on a
                                              pauper’s oath
           Dear Sir:
                       Your opinion request of September 30, 1947, is es
           follows :
                     “ThLa department has reoeived a clrlu from
                an official court reporter  for fees under the pro-
                Vlslons of Article 760, Section 6, V.C .C.r., for
                servioes rendered by him in making 8 narr8tlve
                statement of facts on e pauper’s oath. The nor-
                retlve statement of facts was ordered by the din-
                trict judge In a writ of habeas corpus rctlon,
                said writ was made returnable to the Court of Crim-
                in01 Appeals. The relator in the writ w18 convict-
                ed of .sfelony end given 8 penitentiary sentenoe.
                Are these fees properly payable under the provisions
                of Article 760, V.C.C.P.?'!
                     The question presented le: Is the official
           court reporter, who prepares under Article 119, V.C.C.P. 8
           statement of fects in e habeas corpus proceeding upon the
           request of the District Judge, entitled to be paid for same
           by the State under the terms of Arttiole76~, Vi0.C .?+?
                     To make clear our answer to your question, we
           quote below the pertinent portions of the statutes. They
           respectively provide:

                         . Where
                       ?*icle    the defendant in e crimlnai
                               760.
                                                     -    .




Hon. George H. Sheppard - Page 2, V-409



     case appeals, he is entitled to a statement
     of facts certified by the trial judge and
     sent up with the record; provided that'said
     statement of facts shall be in narrative
     form.
          "2 . To accompany Transcript.--The
     Statement of Facts in felony or misdemeanor
     cases shall not be copied In The Transcript
     of the Clerk, but when agreed to by the
     parties and approved by the Judge, shall be
     filed in duplicate with the Clerk, and the
     original sent up as a part of the record of
     the cause on appeal; and like procedure
     shall be followed if the Statement of Facts
     is prepared by the parties or by the Judge,
     on the failure of the parties to agree.
          1, . . .

          “6. When defendant cannot pay--When
     any felony case is appealed and the defendant
     is not able to pay for a transcript of the
     testimony or give security therefor, he may
     make affidavit of such fact, and upon the mak-
     ing of such affidavit, the court shall order
     the official court reporter to make a narra-
     tive statement of facts and deliver it to such
     defendant. In all cases where the court Is
     required to and does appoint an attirney to
     represent the defendant in a criminal action,
     such reporter shall be required to furnish
     the attorney for said defendant, if convicted
     and where an appeal is prosecuted,,with a
     transcript of hFs notes. For each said serv-
     ice he shall be paid by the State of Texas,
     upon the certificate of the trial judge, one-
     half of the rate provided by law in civil cases."
          The above article has no bearing on this question.
It S8y.T: 'Where a defendant in a criminal case a
is entitled to a statement of facts, etc.". In reY%Perr nghe
to a statement of facts that may be incorporated in the
transcript as provided in Section 2 of said Article when a-
greed to by the parties and approved by the judge, we find
the following language:
          "lnd the original cent up as a part of
     the record of the cause on appeal."
.   .




        Hon. George H. Sheppard - Page 3, V-409


                  Thus we see that Art. 760 has reference only to
        a case appealed to the Court of Criminal Appeals by the
        defendsnt from a conviction in the trial court, and has no
        reference to habeas corpus proceedings wh&ch does not in-
        valve an appeal and is not 8 cause on appeal. Neither is
        the 8DDlicant in a habeas corDu8 DrOCeedinR a defendant.
        Therefore, we lay aside Art. 760 es Fmmaterlal Fn answering
        the question.
                  We now turn to Art. 119 which is material.   It
        reads:
                  "After indictment found In any felony
             ame, and before conviction, the'wrlt aust
             be msde returnable Fn the county where the
             offense has been committed, on account of
             which the appllornt stands indicted.
                    "After fin81 conviction in 82-q felony
             case the writ must be made returnable to the
             Caurt of Criminsl Appeals of Tex8s et Austin,
             Texas.    The writ may issue upon the order of
             any district judge, end said judge may upon
             presentation to him of a petition for said
             writ, set the same down for a heering 8s to
             whether the writ should issue, 8nd ascertain
             the f8ct8, which facts shall be transmitted to.
             the Court of Criminal Appe8lS with the return
             of the writ If same Is issued after such hear-
             ing. Provided further, that should au&h writ
             be returned to the Court of Criminal Apperls
             without the fects eccompenying acme, or with-
             out all of the fscts deemed necessary bt the
             Court of Criminal Appeals, eaid court may *es-
             ignate and direct any district judge or judges
             of this state to ascertain the facts necessero




                  By this language above underscored, it Is made
        mandatory upon the court reporter to prepare a narration
        of the facts adduced In evidence upon such hearing and
Hon. George R. Sheppard - Page 4, V-409


transmit the same to   the Court of Criainal Appeals within
ten days of the date   of such hearing.  Ro compensation is
fixed by law for the   services thus performed by the court
reporter; hence none   can be p,aldby the State.
          We do not mean to hold that the court reporter
mey not, In any event, be paid for a statement of faots in
habeas corpus prodeedings if the Court of Criminal Appeals
hearing the application makes an order concerning the coats
aa provided In Article 162. That Article provldesz
          "Art. 162. costs .--The judge trying the
     cause under habees corpus may moko such order
     as is deemed right concerning the cost of
     bringing the defendant before him, end all
     other costs of the proceeding, awarding the
     same either against the person to whom the writ
     was directed, the person seeking relief, or may
     award Qo costs et all."
          Under this Article, the costs may be adjudged a-
gainst the person t.owhom the writ WEISdirected, or the
person seeking relief, unless such person has filed 8 pau-
per's oath. But it is observed that this Article makes no
provision for the awerding of costs against the State, and
fees cennot be collected against the Stete unless provided
for by law.
          A court reporter la an officer of the court. In
performing the functions and duties imposed upon him by
Article 119, he is merely performing 8n added duty for which
no provision is mede for extra compensati.onby the State.
          You are therefore respectfully advised that the
official court reporter is not entitled to any fees to be
paid by the Stete in preparing a stetement of fects in 8
habeas corpus proceeding returnable to the Court of Criminal
Appeals.

                         SU?dMARY

           No provision is made by lav for the
     State to pay an official court reporter for
     preparing a stetement of fects in a habeas
     oorpus proceeding under Article 119 V.C.C.P.
     He is required to perform this service a8 an
Bon. Georga H. Sheppard - P8ga 5, V-409


     added official duty without’extra oompenss-
     tlon insofsr no the St&e is concerned.
                             Yours very truly
                       ATTORNEY GENERAL OF TEXA3


                                     EV+-J-
                                       5i. L Ilar
                                        Assistant
LPL/lh
                       A?PROVRD :


                      PIR
                       ATT
