 - OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN    CORNYN




                                          August lo,2001



The Honorable Michael A. McDougal                    Opinion No. JC-0404
Montgomery County District Attorney
301 North Thompson, Suite 106                        Re: Meaning of the term “recording” in Code of
Conroe, Texas 77301-2824                             Criminal Procedure article 27.18, providing for
                                                     acceptance of pleas and waivers by closed circuit
                                                     video teleconferencing  (RQ-0348-JC)


Dear Mr. McDougal:

         You inquire about article 27.18 of the Code of Criminal Procedure, which authorizes a court
to accept a defendant’s plea or waiver of a right by closed circuit video teleconferencing.  See TEX.
CODE GRIM. PROC. ANN. art. 27.18(a) (Vernon Supp. 2001). A “recording of the communication”
must be made and preserved until all appellate proceedings have been disposed of. Id. art. 27.18(c).
You ask whether the recording must be a video recording of the communication, or whether a voice
recording alone or a stenographic recording by a court reporter would comply with this requirement.
The recording must be a video recording. You also ask whether the record preservation requirement
for video recordings in article 27.18(c) conflicts with the record preservation requirements for court
reporters’ notes in Government Code section 52.046 and rule 13.6 of the Texas Rules of Appellate
Procedure. Article 27.18(c) does not conflict with the latter two provisions because it pertains to
different records. You finally ask whether both the video recording required by article 27.18 and
the court reporter’s stenographic notes must be kept. Both kinds of records must be kept.

        Article 27.18 of the Code of Criminal Procedure allows a court to accept a defendant’s    plea
or waiver “by broadcast by closed circuit video teleconferencing” to the court if:

                        (1) the defendant and the attorney representing the state file
               with the court written consent to the use of closed circuit video
               teleconferencing;

                        (2) the closed circuit video teleconferencing system provides
               for a simultaneous, compressed full motion video, and interactive
               communication of image and sound between the judge, the attorney
               representing the state, the defendant, and the defendant’s attorney;
               and

                       (3) on request of the defendant, the defendant and the
               defendant’s attorney are able to communicate privately without being
               recorded or heard by the judge or the attorney representing the state.
The Honorable     Michael A. McDougal         - Page 2      (Jc-0404)




Id. art. 27.18(a). “A recording of the communication shall be made and preserved until all appellate
proceedings have been disposed of.” Id. art. 27.18(c) (emphasis added).

        You state that the district courts in Montgomery County are interested in accepting pleas and
waivers by closed circuit video teleconferencing pursuant to article 27.18 of the Code of Criminal
Procedure, but there is a question about the kind of recording that must be made of the proceeding.’
You ask whether a voice recording or a stenographic recording by a court reporter would fulfill this
requirement, or whether a video recording of the communication must be made.

        We conclude that the “recording of the communication” within article 27.18(c) is a video
recording. Article 27.18 authorizes the court to accept a defendant’s plea or waiver without the
defendant being physically present in the courtroom. It requires “interactive communication       of
image and sound between the judge, the attorney representing the state, the defendant, and the
defendant’ s attorney.” TEX.CODE CRIM.      PROC.ANN. art. 27.18(a)(2) (Vernon Supp. 2001). Thus,
“the communication” to be recorded is the “interactive communication of image and sound between
the judge,” the attorneys, and the defendant. See id. This information, in particular, an image, can
be preserved only on a video recording.         The recording is to be maintained until appellate
proceedings have been resolved, thus providing evidence on appeal of whether the judge, defendant,
and attorneys were able to see, hear, and understand one another, even though some of these persons
were absent from the courtroom.

        The legislative history of article 27.18 supports the view that the “recording” is a video
recording. Code of Criminal Procedure article 27.18 was adopted as Senate Bill 12 1 of the Seventy-
fifth Texas Legislature. See Act of May 30, 1997, 75th Leg., R.S., ch. 1014, 5 1, 1997 Tex. Gen.
Laws 3700. The provision on record-keeping that appeared in the introduced version of Senate Bill
121 read as follows:

                         A written transcript of the communication         between the
                 defendant and the court shall be made and filed with the records in
                 the cause. A recording of the communication        shall be made and
                 preserved until the 120th day after the date the recording is made.

Tex. S.B. 121,75th Leg., R.S. (1997). The introduced version of Senate Bill 121 required that both
a “written transcript of the communication” and a recording of the communication be kept, thus
indicating that a “recording of the communication” was not a written transcript. See id. The bill was
amended in the Senate Criminal Justice Committee to delete the language requiring a written
transcript to be kept because a transcript was thought to be too costly and not necessary.        See
Hearings on Tex. Comm. Substitute S.B. 121 Before the Senate Grim. Justice Comm., 75th Leg., R.S.
(Feb. 25,1997) (statement of Senator Tee1 Bivins) (audio tape available from Senate Staff Services);




         ‘See Letter from Honorable Michael A. McDougal, District Attorney, 9th Judicial District, to Honorable
John Cornyn, Texas Attorney General (Feb. 8,200l) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable      Michael A. McDougal          - Page 3      (JC-0404)




S.J. OFTEX., 75th Leg., R.S. 3916 (1997).* We conclude that article 27.18 requires a video recording
of the proceeding to be preserved.3

        You ask whether article 27.18 conflicts with Government Code section 52.046 and Texas
Rule of Appellate Procedure 13.6 with respect to the length of time records of a proceeding must be
preserved.   You also ask whether the recording required by article 27.18 is in addition to a
stenographic or electronic recording envisioned by rule 13.

         Chapter 52 of the Government Code governs the certification, duties, and compensation of
court reporters. Government Code section 52.046 provides that, on request, an official court reporter
shall “take full shorthand notes of oral testimony offered before the court” and “preserve the notes
for future reference for three years from the date on which they were taken.” TEX. GOV’T CODE
ANN. 9 52.046(a) (Vernon 1998).

        The record preservation requirement in rule 13.6 of the Texas Rules of Appellate Procedure
applies when the defendant does not appeal, a limitation found in neither Government Code section
52.046 nor Code of Criminal Procedure article 27.18. Rule 13.6 states as follows:

                           When a defendant is convicted and sentenced, or is granted
                  deferred adjudication for a felony other than a state jail felony, and
                  does not appeal, the court reporter must-within 20 days after the time
                  to perfect the appeal has expired-file the untranscribed notes or the
                  original recording of the proceeding with the trial court clerk. The
                  trial court clerk need not retain the notes beyond 15 years of their
                  tiling date.

TEX. R. APP. P. 13.6.


         Your request letter refers to the “stenographic or electronic recording” envisioned by rule 13 ,4
and the quoted rule refers to the “original recording of the proceeding.” See id. “Recording” in
connection with the court reporter’s duties under the Rules of Appellate Procedure means an audio
recording, not a video recording. For example, Rule 34.6 provides that if the proceedings were
electronically recorded, the reporter’s record “consists of certified copies of all tapes or other audio-
storage devices on which the proceedings were recorded.” Id. 34.6(a)(2); see also id. 13.2 (court
recorder must “ensure that the recording system functions properly throughout the proceeding and



         2A subsequent amendment on the House Floor deleted the requirement that the recording be preserved until
“the 120th day after the date” it was made and substituted the phrase “all appellate proceedings have been disposed.”
H.J. OF TEX., 75thLeg., R.S. 3916 (1997).

            ‘We note that a bill was introduced in the Seventh-seventh Texas Legislature that would have amended Code
of Criminal Procedure article 27.18(c) to delete the requirement that a “recording” be maintained and replace it with
“transcript.”   See Tex. H.B. 2524,77th Leg., R.S. (2001). This bill was not adopted.

         4Request Letter, supra note 1, at 1.
The Honorable Michael A. McDougal        - Page 4     (JC-0404)




that a complete, clear, and transcribable recording is made”); 34.6(f) (remedy if significant portion
of the court reporter’s notes and records is lost, or a significant portion of electronic recording is
inaudible). Thus, unlike article 27.18(c) of the Code of Criminal Procedure, rule 13.6 does not
require the court reporter to keep a video recording of a proceeding.

         Neither Government Code section 52.046 nor Texas Rule of Appellate Procedure 13.6
addresses records of a court session involving participation by an absent defendant through closed
circuit video teleconferencing.   Under these special circumstances, the legislature has determined
that the video recording shall be preserved until all appellate proceedings have come to an end, and
the preservation times in the other two provisions do not apply to the video recording made under
article 27.18 of the Code of Criminal Procedure. Accordingly, article 27.18 does not conflict with
Government Code section 52.046 or with Texas Rule of Appellate Procedure 13.6, because it applies
to a different kind of record than the latter two statutes.

         It follows that the recording required by article 27.18 is in addition to a stenographic or
electronic recording envisioned by rule 13 or section 52.046 of the Government Code. Neither
provision authorizes the substitution of one record for the other. Moreover, the sponsor of Senate
Bill 12 1 told the Senate Criminal Justice Committee that Senate Bill 12 1 would not affect normal
paperwork and preservation of documents and that the court reporter would still be present during
a hearing conducted according to the bill. See Hearings on Tex. Comm. Substitute S.B. 121 Before
the Senate Grim. Justice Comm., 75th Leg., R.S. (Feb. 25,1997) (statement of Senator Tee1 Bivins)
(audio tape available from Senate Staff Services). We also note that article 27.18 does not include
safeguards to ensure that the court reporter may transcribe the video recording into a written record
if necessary or that it will otherwise substitute for the court reporter’s written record of the
proceeding.     In contrast, the Rules of Appellate Procedure require such safeguards when a court
proceeding is recorded electronically.     Rule 13.2 requires the court recorder to “ensure that the
recording system functions properly throughout the proceeding and that a complete, clear, and
transcribable recording is made” and to “make a detailed, legible log of all proceedings being
recorded,” showing the number and style of the case before the court, the name of each person
speaking, the event being recorded, such as voir dire or direct and cross-examinations,    the time of
day of each event, and other items of information. TEX. R. APP. P. 13.2. After the proceeding ends,
the log is filed with the clerk and the original recording is stored. Id. 13.2(d). Article 27.18 lacks
comparable requirements.

         Accordingly, we conclude that the video recording required by article 27.18 is not intended
to replace the stenographic or electronic record required by rule 13.6, but must be kept in addition
to those records. However, the official court reporter need not attend and make a record of the
portion of the proceedings conducted by videoconferencing    if the parties do not wish this. See TEX.
GOV’T CODE ANN. 8 52.046 (Vernon 1998) (on request, official court reporter shall attend all
sessions of the court and take full shorthand notes of oral testimony); TEX. RULE APP. P. 13.1(a)
(court reporter may be excused by agreement of the parties from making a record of proceedings).
The Honorable Michael A. McDougal       - Page 5     (JC-0404)




                                       SUMMARY

                        When a court accepts a plea or waiver of a defendant’s right
               by closed circuit video teleconferencing pursuant to Code of Criminal
               Procedure article 27.18, a video recording of the communication must
               be made and preserved until all appellate proceedings have been
               disposed of.      The record preservation      requirement   for video
               recordings in article 27.18(c) does not conflict with the record
               preservation requirements for court reporters’ notes in Government
               Code section 52.046 and rule 13.6 of the Texas Rules of Appellate
               Procedure, because the latter two provisions deal with different
               records. Both the recording required by article 27.18 and the court
               reporter’s stenographic notes must be kept. However, the official
               court reporter need not attend the portion of the proceedings
               conducted by video conferencing to make a written record of it if the
               parties decide that this is unnecessary.




                                              JOHN     CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
