                                                   . ._ . _   _   -- _ _ _ _. .




Mr. John Henry Tatum                       Opinion No. M-     1095
County Attorney
Angelina County                           Re: Whether the county
Lufkin, Texas                                 court at law for
                                              Angelina County,
                                              Texas created by
                                              Art. 1970-355,v.c.s.
                                              is a court of record
                                              and whether a court
                                              reporter is required
                                              to be furnished at
                                              the state expense.
                                              and other related
Dear Mr. Tatum:                               questions.

     We are in receipt of your opinion request concerning the
effect of House Bill 363, 62nd Legislature 1971, Regular Session
chapter 274, page 1169 (Article 1970-355, Vernon's Civil Stat-
utes), creating the County Court at Law of Angelina County.
Your request poses three questions:

          1.   Is this court, as created, a court of record?

          2.   Is it mandatory that a court reporter be fur-
               nished at State expense:

               (a)   in the trial of a civil jury case?

               (b)   in the event it is demanded   in the trial
                     of a criminal jury case?

          3.   Is it mandatory   that an official court reporter
               be appointed?




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Hon. John Henry Tatum, page 2   (M-1695)



     In connection with your first question, you have advised
that you are not only concerned with whether the acts and ju-
dicial proceedings of this court as well as the record of this
court are required to be kept as a permanent record but whether
this may have an effect on our answer to the other questions
propounded.  While we have concluded that the County Court at
Law of Angelina County is a "court of record," this conclusion
has been reached independently of any consideration as to whe-
ther that court must appoint an "official court reporter."   An
examination of the st.atute creating the Court reveals that it
is given the same jurisdiction over all causes and proceedings,
civil and criminal, that are “prescribed by law for county
courts" as well as concurrent jurisdiction with that of the
County Court of Angelina County.   It is given the power to
issue the same writs as is customary of any other county court
at law, including those necessary for the enforcement of the
court's jurisdiction, and it is expressly given "the power to
punish for contempt as prescribed by law for county courts."
The judge of this county court at law is required to have the
same qualifications, take the same oath and execute the same
bond as prescribed by law for other county judges. The county
attorney, county clerk, and county sheriff are required to serve
as such officers of the County Court at Law, and the Commission-
ers Court is authorized to employ such additional assistants
"as are necessary to serve the court created by this Act." The
judge of this County Court at Law is authorized to appoint an
official court reporter to serve the court.

     Courts of record are generally considered to be those re-
quired to keep records and which are proceeding according to
the course of the common law, the judgments of which may be
revised by writs of error and whose proceedings and judgments
import absolute verity until reversed. Its acts and judicial
proceedings and record must be enrolled and made a matter of
permanent record and generally it has been held that such courts
must have a recording officer or clerk and have the power to
punish for contempt.  See 20 Am.Jur. 2d 405-406, Courts, Sec.26.
A seal is not necessarily required. Houston Oil Co. v. Kimball,
103 Tex. 94, 122 S.W. 533, 541 (1909). It is held to be a court
that has authority to fine and imprison. Wahrenberqer v. Horan
18 Tex. 57 (1956). When a Commissioner's Court acts judicially,

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Hon. John Henry Tatum, page 3 (M-E0951



it is a court of record. Welch v. Kent, 153 S.W.2d    284, 286
(Tex.Civ.App. 1941, no writ); Ashburn Bras. v. Edwards County,
58 S.W.2d 71, 73 (Tex.Crim. 1933).   County courts, and County
Courts at Law so acting, as well as District Courta, have thus
been generally recognized as *courts of record.* See Bx Parte
Hayden, 152 Tex.Crim.517, 215 S.W.2d 620, 621 (1948). "Each
clerk of a court of record having criminal jurisdiction" is
required to keep a permanent docket showing the various pro-
ceedings in all such actions.   See Article 33.07, Code of
Criminal Procedure.   In view of the foregoing, we have no hesi-
tancy in holding.that the County Court   at Law of Angelina County
is a "court of record.'   Cur determination of this question,
however, is not believed material to and does not control our
answer to, your question of whether,it is mandatory that an
"official court reporter" be appointed.

     Your second question concerns whether it is mandatory to
furnish a court reporter at state expense in civil or criminal
cases. With respect to civil cases, it is necessary first to
consider Article 2327,* Vernon's Civil Statutes, which reads,
in pertinent part, as follows:

                    "When either party in a civil case pending in
                    the County Court or in the County Court at Law
                    applies therefor, the judge thereof shall appoint
                    a competent stenographer, if one be present, to
                    report the oral testimony given in such case.
                    Such stenographer shall take the oath required of
                    official court reporters,, an.d shall receive not
                    less than five dollars per day, to be taxed and
                    collected as costs. . ." (Emphasis supplied)

     Patently, the stenographer                    under this statute, need not be
an official court reporter.

          Article      23260,   Section   1,
                                          provides that in counties hav-
ing a population            of 1,500,OOO or more, the judge of each county



*   All Articles mentioned are Vernon's Civil Statutes, unless
    otherwise designated.

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Hon. John Henry Tatum, page 4         (M-1095)



court at law, civil or criminal shall appoint an official short-
hand reporter for such court. You do not state the population
of Angelina County, but according to the latest federal census,
its population is 49,349, and therefore there is no requirement
that there be an official shorthand reporter for your court. We
quote from Article 1970-355 the statute creating the Angelina
County Court at Law at Section 5(b) as follows:

          "The judge of the county court at law
          may appoint an official court reporter,
          who must meet the qualifications prescribed
          by law for that office ....'I (Emphasis
          supplied)

     In construing the above quoted portion of Article 1970-355,
supra, with Article 2327, supra. we hold that in any given
civil case in which one of the litigants applies therefor, the
court must appoint a competent stenographer, who must take the
oath of office; the county is not responsible for payment, but
the expenses of such stenographer shall be taxed and collected
as costs.

     It was held in Herbert v. State, 442. S.W. 2d 456 (Tex.Crim.
1968) that there is no statutory or constitutional requirement
that the judge of a county court appoint a court reporter in a
criminal case. Although a distinction is made between county
courts at law and county courts in Sterett v. Morqan, 294 S.W.
2d 201 (Tex.Civ.App. 19561, it is our opinion that Herbort ap-
plies to the Angelina County Court at Law.  In Herbort the coun-
ty court had criminal jurisdiction; the Angelina County Court
at Law has criminal jurisdiction concurrent with ~the Angelina
County Court by virtue of the creating statute.

     Article 40.09, Section 5, Vernon's Code of Criminal Pro-
cedure provides that in a criminal case the Defendant shall be
entitled to a transcription of the reporter's notes, if he so
requests, and that the Defendant is responsible for the expense
of the preparation of sudh transcription.   It further provides,
however,  that if the Defendant files an affidavit of inability
to pay, and, if there is a finding by the Court after a hear-
ing on the question, that the Defendant is in fact indigent,

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        Hon. John Henry Tatum, page 5     (M-1095)



        then the Court shall issue an order to the reporter to furnish
        the Defendant with a copy of the transcribed notes, the costs
        to be paid from the general funds of the county.

             It was held in Ex Parte Veasley, 437 S.W.2d 857 (Tex. Crim.
        1969) ,that the Petitioner (Defendant) was entitled to discharge
        and a new trial based upon findings that after his conviction
        he had timely requested a statement of facts and that he had
        never received it. His original conviction had been affirmed
        by the Court of Criminal Appeals in a per curiam opinion which
        recited that since the appellate record contained no statement
        of facts or bills of exception, the conviction would be affirmed.

             Griffin v. Illinois, 351 U.S. 12, 76 S.C. 585, 100 L.Ed.
        891 (1956) held that it was violative of the due process clause
        of the U.S. Constitution to deny the appellate processes to an
        indigent defendant.  We therefore answer your question as to
        criminal cases as follows: When a defendant in a criminal case
        demands it, he is entitled to a transcribed copy of the report-
        er's notes made during the testimony at the trial: the cost of
        the copy must be borne by the defendant, except in the case of
        a finding of indigency, in which case the cost is to be borne
        by the county. Failure to furnish the defendant a copy of the
        transcript after timely demand therefor is reversible error.
        Ex Parte Veasley 437 S.W..2d 857, supra.

             Is it mandatory that an official court reporter be appoint-
        ed? As pointed out above, Article 2327, supra, provides for the
        appointment of a "competent stenographer" when requested in the
        trial of a civil case, and Section 5(b) of Article 1970-355
        gives the judge of the County Court at Law of Angelina County
        permissive authority to appoint an official court reporter.

             Again, in construing the two statutes* together, we hold
        that in any given criminal case where a copy of the transcript
        is requested by the defendant, it must be furnished him. This
        presupposes that there are reporters notes to be transcribed.
        Therefore, if a defendant in a particular case requests that
        the evidence be recorded and that he be furnished a copy of the
        transcribed notes, it is incumbent upon the judge of the court
        to comply withthe  request by appointing a stenographer at the

        * Art. 40.09, Code of Crim.   Procedure & Art. 1970-355
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Hon. John Henry Tatum, page 6      (M-1095)



outset of the case. We find nothing in the law which would re-
quire that this transcript be prepared by an official court re-
porter.  However, if the Court does elect to exarcise its per-
missive authority to appoint a reporter as a part of the perma-
nent personnel of the court, we hold that the appointment must
go to "an official court reporter, who must meet the qualifica-
tions prescribed by law for that office and who is entitled to
compensation fixed by the Commissioner's Court of Angelina
County". Article 1970-355.

                         SUMMARY

          The Angelina County Court at Law is a "Court
     of Record" as that term is generally used in this
     State.

          It is mandatory upon the Judge of the County Court
     at Law of Angelina County upon the request of a liti-
     gant in a civil trial, to furnish a competent steno-
     grapher. The cost for this service is to be taxed
     and collected as court costs. Art.  2327, V.C.S.

          In a criminal trial, upon request therefor,
     the defendant must be furnished a copy of the steno-
     grapher's notes taken during the trial at the expense
     of the defendant.  If the court finds that the defendant
     is indigent, the county must bear this expense. Art.
     40.09 V.C.C.P.

          There is no mandatory requirement that a court
     reporter be appointed to the Angelina County Court
     at Law. It is not mandatory that the reporter or
     stenographer taking the notes on a "per case" basis
     be an official court reporter. However, if the
     Angelina County Court at Law Judge does appoint a
     court reporter as part of the personnel of the court,
     this appointment must go to an "official court re-
     porter who must meet the qualifications prescribed
     by law for that office." Art. 1970-355, V.C.S.




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        Hon. John Henry Taturn,   Page 7            (M- 1095)




                                               y9
                                               ,,.a       very truly,
                                                                /




                                               Attp;!    ney General of Texas


        Prepared by Robert W. Gauss
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        KERNS TAYLOR, Chairman
        w. E. ALLEN, Co-Chairman

        Bob Lattimore
        Lewis Jones
        Lynn Taylor
        Melvin E. COrley

        SAMUEL D. MCDANIEL
        Staff Legal Assistant

        ALE'REDWNXER
        Executive Assistant

        NOW WHITE
        First Assistant




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