                            NEY      GENERAL
                            TE~LAS




Honorable John R. Gillham      Opinion NO. C-   562
District Attorney
100th Judicial District        Re: In an examining trial as
Clarendon, Texas               provided for in the Code of
                               Criminal Procedure, whether it
                               is necessary to have a court
                               reporter present, or can the
                               magistrate appoint any one who
                               is capable to take down the
                               statements and other materials
Dear Mr. Gillham:              that must appear in the record.
       In a recent opinion request of this office you ask
whether or not after January 1, 1966,it will be necessary
to have a court reporter present at an examining trial.
       Article 16.09of the new Code of Criminal Procedure,
which becomes effective January 1, 1966,states as follows:
            "The testimony of each witness shall be
             reduced 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 testi-
             mony thus taken shall be certified to by
             the magistrate. In lieu of the above pro-
             vision, a statement of facts authenticated
             by State and defense counsel and approved
             by the presiding magistrate may be used to
             preserve the testimony of witnesses."
       Article 16.09makes it mandatory that the testimony
of each witness at an examining trial be reduced to writing.
The first sentence of said article provides that the testi-
mony of each witness be reduced to writing by or under the
direction of the magistrate. This would seem to indicate that
it does not matter by whom the testiony is reduced to writ-
ing, so long as it is done either by the magistrate or some-
one under his direction. It is, therefore, our opinion that
it is not necessary to have a court reporter, as that term
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Honorable John R. Gillham, page 2, (C-562)

is commonly used, present at an examining trial. It will
be sufficient, however, that anyone capable of reducing to
writing any testimony be appointed by the magistrate for
this purpose.
         It is noted that the alternate procedure outlined in
16.09provides the alternative only as to the approval of
the Statement of Facts, and in no way makes it other than
mandatory that a Statement of Facts be made of each examin-
ing trial.
         It is our opinion, therefore, that as of January 1,
1966,it will be mandatory that a Statement of Facts be
made of each examining trial, and that such Statement of
Facts may be prepared by the magistrate or anyone whom he
appoints for such purpose.
                             SUMMARY
              Article 16.09makes mandatory, after    January
              1, 1966,the preparation of a record    of each
              examining trial. Said record may be    pre-
              pared by the magistrate or by anyone   whom
              he appoints for such purpose.
                                    Yours very truly,
                                    WAGGONER CARR
                                    Attorney General of Texas




SLK/lh
APPROVED:
OPINION COMMITTEE
W. V Geppert, Chairman
Douglas Chilton
Robert Owen
Larry Craddock
Gordon Houser
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright


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