                            December 8, 1966

Honorable Don Hall                       Opinion No. c-785
District Attorney
McLennan County                          Re:   Compensation to court
Waco, Texas                                    reporters for appeal
                                               involving indigent de-
Dear Mr. Hall:                                 fendants.
       You recently requested an opinion from this office on the
following questions:
      "(1)   Is Article 40.09, Section 6 of the Texas
             Code of Criminal Procedure mandatory?
      "(2)   If 80, is the reasonability of the amount
             of the bill discretionary with the Commissioners
             Court, or must the Commissioners Court abide
             by the Certification of the trial Judge,
             regarding the reasonability of the charge, if
             said trial Judge so certifies?
      "(3)   Is the payment of these charges a County or
             State responsibility individually, or a joint
             responsibility? It
       Paragraph 5 of Article 40.09, Vernon's Code of Criminal
Procedure, states, in part, as follows:
            11     The court will order the reporter to
      make S&&I Cranscriptlon without charge to defendant
      if the court finds, after hearing in response to
      affidavit by defendant that he Is unable to pay or
      give security therefor. Upon certificate of the
      court  that this service has been rendered, payment
      therefor shall be made from the general funds by




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Honorable Don Hall, page 2    (C-785   )


        In answer to ycur first and third questions, Article 40.09,
.paragraph 5, Vernon's Code of Criminal Procedure, is specific and
 the legislative intent is clear. Ordinarily, when the word "shall"
 is used, the presumption is that it is in the imperative, and not
 in the directory sense. McLaren v. State, 199 S.W. 811 (Tex. Grim.
1917).

       Therefore, it Is the opinion of this office that the
language of Article 40.09 directing that "payment shall be made
from the general funds by the county in which the offenge is
alleged to have been committed," is mandatory and not directory;
and that upon certification of the trial L!Jdgethat this service
has been rendered and that the amount of ihe bill submitted by
the court reporter Is reasonable the Commissioners Court must
make payment to the court reporter from the general funds ?,'the
county. Article 40.09, paragraph 5, clearly states that the
responsibility of paying the fee lies with the county and not the
State.
       In answer to your second question, Article 40.09, para-
graph 5, does not outline what the court reporters shall.be paid
or what is a reasonable amount for the preparing of the statement
of facts and transcripts. However, this office ruled in Attorney
General's Opinion No. c-683 (1966) that a reasonable amount should
be paid and that the trial court may certify whether the amount
requested by the court reporter is reasonable. Opinion NO: c-683
also sets forth the guidelines that may be used by the trial court
and states that the reasonableness of the amount requested by the
court reporter is within the discretion of' ine trial court. It
is our opinion that the Commissioners Court must abide by that
determination.
                                  SUMMARY
         Under the provisions of Article 40.09, paragraph 5 of
         Vernon's Code of Criminal Procedure, upon certification
         from the trial court that the court reporter's fee is
         .reasonable the Commissioners Court must make payment
         from the general funds of the county in which the
         offense is alleged to have been committed.
                                            Yours   very truly,
                                            WAGGONER CARR
                                            Attorney General of Texas




DHC/lk
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Honorable Don Hall% page 3,     (C-785   )
             1




APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Robert Owen
Robert Norris
Lonny Zwiener
Gilbert Pena
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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