                                April   2,   1975


The Honorable Alton R. Griffin                      Opinion   No.   H-   573
Criminal District Attorney
Lubbock County Courthouse                           Re: Court reporter’s    fee
Lubbock,  Texas   79401                             for transcript for indigent
                                                    defendant.

Dear Mr.’ Griffin:   ‘,

         You request our opinion on several questions conce.rning the
proper fee to be charged by a court reporter for preparing a transcript
                                                                        ‘.
for an indigent defendant in a criminal case.      Article 40.,09,  sectron 5~,.
Code of Criminal Procedure,as       amended by Acts 1967, 60th Leg.,       ch.
659, p. 1742. provides that the amount of compensation        to be charged by
a court reporter for such.services     is to be set by the trial judge.    While
article 2324, V. T. C. S., limiting the amount a court reporter may charge
for an original transcript,   is of general application to all case* in
district court, article 40.09,   section 5, Code of Criminal Procedure,
applies only to the preparation    of a transcript for an appellate record
by order of the court for an indigent defendant.

                . . . where the Legislature   makes provision for all
                cases generally and also enacts a special statute
                governing a special class of case, the special statute
                must prevail over the general act in the field where
                the special act is operative.  Espinosa v. Price,  188
                S. W. 2d 576 (Tex. Sup. 1945).

Accordingly,   since section 5 of article 40.09 is more specific in its
subject matter than article 2324, the former controls the latter; and
the fee to be charged for preparing    such transcript is within the dis-
cretion of the trial jud.ge.




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The Honorable     Alton   R.   Griffin    page 2       (H-573)




          ‘You also inquire as to what may be considered        a reasonable
fee for the preparation     of a transcript   under article 40.09,    section 5.
Since the trial judge. exercises     his discretion  in setting the fee, such
determination      must be followed by the Commissioners         Court absent a
showing of an abuse of discretion.          Commissioners     Court of Lubbock
County v. Martin,      471 S. W. 2d 100 (Tex. Civ. App. --Amarillo       1971, writ.
ref’d.   n. r. e.); see Attorney General Opinions H-544 (1975), C-785
 (1966), and C-68-966).,

        You state that the Commissioners      Court has received a bill
from the district court reporter for preparation     of a transcript for
an indigent defendant.    The bill is stamped “approved” and signed
by the trial judge.   You ask whether a separate statement from the
court certifying the validity of the amount charged should accompany
the judge’s signature.   Article 40.09,   section 5 provides in part:

                  Upon certificate of the court that this service
                  has been rendered,   payment therefor shall be
                  made from the~ge,neral funds by the county. . . .

        A “certificate”    has been construed to be a            signed, written
    ‘7.
testimony   to the truth of something.     Friendswood           Ind. Sch. Dist.   v.
National Surety Corp.,     423 S. W. 2d 95 (Tex. Civ.            App. --Houston
(14th Dist) 1967), reversed    on, other grounds 433.S.          W. 2d 690 (Tex.
Sup. 1968).

         The court in Kay,-Vee Realty Co. v. Town Clerk of Ludlow ,243
N. E. 2,d 813 (Mass.  1969) quoting Black’s Law Dictionary (4th ed.)
defines “certificate”  ,a* a:

                  . . . written assurance  or official representation
                  that some act has or has not been done; or some
                  event occurred,   or some legal formality   has been
                                                   *
                  complied with.

A certificate    ins not necessarily     nor usually    sworn to.    14 C. J.S.
Certificate,    p. 111.




                                         p.   2561
   -




The Honorable   Alton   R.   Griffin    page 3     (H-573)




        Although the bill from the court reporter contains the cause       ,~
number,    defendant’s  name, the nature of the service and the amount
due, it does ndt expressly    state that “this service has been rendered. ”
Since the judge must order the reporter to make such a transcription,
we believe it is fair to,imply by the judge’s signing the bill that, in
fact, such services    have been rendered in accordance     with the order
and that the sum charged is that which was set by the judge.       Cf.,
Attorney General Opinion M-1159 (1972).        A separate statement from
the judge certifying that the transcript    has been duly prepared is not
necessary.     See also Attorney General Opinion C-785 (1966).

        Finally,    you ask whether the judge’s       signature alone is suf-
ficient certification   or whether his capacity      as district court judge
should also be indicated.

         Although designation of the capacity in which he is signing is
desirable,   we believe it is not necessary.  As long as a.judge is per-
forming an authorized act in his official capacity,  his signature alone
is sufficient authorization.

                                   SUMMARY

                     Under article 40.09,   section ‘5, Code of %riminal
                Procedure,    the fee to be charged by a court reporter
                for preparing a ,transcript for an indigent defendant
                is to be set by the trial judge.     A separate statement
                certifying the validity of the amount charged is not
                necessary   if the court reporte,r’s   bill sufficiently
                identifies the reason for the charge and is signed by
                the judge.   In signing said bill, the judge need not,
                designate his official capacity,        although    such a
                pra<.tice. would be desirable.

                                                    ,Very    trllly yours,




                                             I,‘~    Attorney      General   of Texas




                                       p.   2562
The Honorable   Alton   R.    Griffin     page 4        (H- 573)




APPROVED:




DAVID -M. K.ENDALL,          First   Assistant




C. ROBERT HEATH,         Chairman
Opinion Committee


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