                          QBffice    of the Elttornep        &metal
                                       Btate of PCexae
DAN MORALES                               March 29, 1995
 ATTORNEY
      GENERAL




     Honorable Don Henderson                       Qpiion No. DM-339
     Chair
     Jurisprudence Committee                       Re: Whether a “videographer” who is also
     Texas State Senate                            a notary public may record a deposition
     P.O. Box 12068                                upon oral examination (RQ-709)
     Austin, Texas 7871 l-2068

     Dear Senator Henderson:

             You submit a letter t?om a constituent who asks whether section 406.016 of the
     Government Code, rule 202 of the Texas Rules of Civil Procedure., and Attorney General
     Qpiion IM-110 (1983) authorize a “videographer” who is also a notary public to record a
     deposition upon oral examination. We understand that the videographer is not a certi&d
     shorthand reporter and that he wishes to videotape depositions that are not simultaneously
     recorded by a certified shorthand repotter.

             Attorney General Qpiion JM-110 interpreted the statutory predecessor to section
     406.016 of the Government Code, now-repealed article 5954, V.T.C.S., to authorize
     notaries public to record writfen depositions in nonstenographic form. That opinion took
     great pains to distinguish such written depositions from oral depositions (“depositions
     upon oral examination”) which must generally be recorded by a certified shorthand
     reporter. See Attorney General Opinion TM-110 (1983) at 2. Neither section 406.016 of
     the Government Code nor Attorney General Opinion TM-110 authorizes a “videographer”
     who is also a notary public to record a deposition upon oral examination.

             Rule 202 of the Texas Rules of Civil Procedure provides in pertinent part as
     follows:

                     1. Non-Stenographic Recording. Any party may cause the
               testimony and other available evidence at a deposition upon oral
               examination to be recorded by other than stenographic means,
               inchtdmg videotape recordmgs, without leave of court, and the non-
               stenographic recording may be presented at trial in lieu of reading
Honorable Don Henderson - Page 2          (DM-339)




          from a stenographic transcription of the deposition, subject to the
          following rules:



                    e. The non-stenographic recording shall not diqense with
          the requirement of a stenogrqhic transcription of the deposition
          unless the court shall so or&r on motion and notice before the
          deposition is taken, and such order shall also make such provision
          concerning the manner of taking, preserving and filing the non-
          stenographic recording as may be necessary to assure that the
          recorded testimony will be intelligible, accurate and trustworthy.
          Such order shah not prevent any party from having a stenographic
          transcription made at his own expense. In the event of an appeal, the
          non-stenographic recording shall be reduced to writing. [Emphasis
          added.]

         With the exception of subpart (e), rule 202 requires that both a stenographic
transcription and a nonstenographic recording be made. Clearly, the rule contemplates
that the stenographic transcription will be made by a certified shorthand reporter (or
othenvise qualiied person). It imposes no requirements for the person making the
nonstenographic recording, however. Thus, we believe that any person may make a
nonstenographic recording if a certified shorthand reporter makes a stenographic
transcription simultaneously. Subpart (e), on the other hand, allows a court to order that a
non-stenographic recording will dispense with a stenographic transcription.             The
constituent suggests that r&202(e) authorizes a videographer who is a notary public but
not a certified shorthand reporter to make a nonstenographic recording that is the sole
recording of the deposition. We believe, however, that rule 202(e) is inconsistent with
newly enacted section 52.021(f) of the Government Code.

       Section 52.021(f) provides as follows:
               Except as provided by Section 52.031 and by Section 20.001,
          Civil Practice and Remedies Code, all depositions conducted in this
          state must be recorded by a certified shorthand reporter.

The legislature added subsection (fj to section 52.021 in 1993. Act ofMay 20, 1993,73d
Leg., RS., ch. 1037, 5 2, 1993 Tex. Sess. Law Serv. 4453,4453-54. Section 20.001 of
the Civil Practice and Remedies Code, referred to in subsection (f), provides for the taking
of depositions upon written questions by certain persons. See Civ. Prac. & Rem. Code
4 20.001(a), as amended by Act of May 20, 1993, 73d Leg., R.S.. ch. 1037, $4, 1993
Tex. Sess. Law Serv. 4453,4454. Section 52.031(b) of the Government Code provides




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Honorable Don Henderson - Page 3             (nn-339)




for the reporting of a deposition upon oral examination by a noncertified shorthand
reporter if a certified shorthand reporter is not available.* Neither of these two exceptions
is applicable here.2

        In Attorney General Opinion DM-308 (1994) and Letter Opinion No. 93-110
(1993). this office construed section 52.021(f) to rewire that all depositions upon oral
examination conducted in this state be recorded by a certified shorthand reporter, except
as authorized by section 52.031(b). Reasoning that tape recording is not a method of
shorthand reporting and that a person who uses such a method does not act as a certifted
shorthand reporter, we concluded recording of a deposition upon oral examination only by
tape recorder would run afoul of section 52.021(f). Letter Opinion No. 93-110 (1993) at
3-4.

        In Attorney General Opinion DM-308, we concluded that to the extent that rule
166c of the Texas Rules of Civil Procedure permits parties to stipulate that a deposition
upon oral examination be recorded by a person other than a certified shorthand reporter, it
wntlicts with subsection (t) of section 52.021 of the Government Code. As noted in that
opinion, it is a well-established principle of statutory construction that when a rule of civil
procedure promulgated by the Texas Supreme Court wntlicts with a statute, the rule must
yield. Attorney General Opinion DM-308 (1994) at 2 (citing Few Y. Charier Oak Fire
Ins. Co., 463 S.W.2d 424 flex. 1971); Purolator Armored, Inc. v. Railroad Comm’n, 662
S.W.2d 700,702-03 n.4 (Tex. Civ. App.-Austin 1983, no writ); Drake Y.Muse, Currie &
Kohen, 532 S.W.Zd 369, 372 (Tex. Civ. App.-Dallas 1975, writ refd n.r.e.);
C. E. Duke’s Wrecker Sew., Inc. v. Oakley, 526 S.W.Zd 228 (Tex. Civ. App.-Houston
(1st Dist.] 1975, writ refd n.r.e.)); see also Tex. Con% art. V, cj 31 (providing that
supreme court shah promulgate rules of civil procedure for all courts not inconsistent with
laws of state).



         ‘Exceptas providedby section 52.031, a personwho cngagcsin shonhand reportingin violation
of section 52.021 commits a” offense punishableas a Class A misdemeanor. Gov’tcode 5 52.032(a), as
amendedby Ad of May 20, 1993,73d Leg., R.S., ch. 1037.8 3.1993 Tex. Scss. Law Serv.4453.4454.

         ?kction 52.033 of the Govemnxnt Codeprovidesthat chapter52 does not applyto a partyto the
liiigatioo, the attorneyof the party, or a full-time Unploycc of a partyor a parry’sattorney. Burr Y.
Shannon, 593 S.W.2d 677 vex. 1980). which holds that that a notary public who is “ot a certified
shorthsnd mportcris authorizedto tape recordand make a written recordof a deposition upon oral
acamination,isdistinguirhablebccsuscthcwtarypublicinthateasewastheseQctarydaparty’s
attorneyand thus wss cxmptcd from chsptcr 52 by virtue of section 52.033. We do not consider the
mlatio”shipbetwee”section 52.033 and section52.021(f).




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Honorable Don Henderson - Page 4              (DM-339)




        Here, we believe that rule 202(e),’to the extent it authorizes a court to permit
parties to dispense with a stenographic transcription, conflicts irreconcilably with section
52.021(f) ofthe Government Code.3 Rule 202(e) is void to the extent it conflicts with the
statute. We are aware of no other statute’ that would permit a videographer to make a
videotape recordii    of a deposition upon oral examination in lieu of a stenographic
transcription made by a certified shorthand reporter pursuant to an authorized method.’




        ‘Oacmi%targuethattheruleandtbestatutccouldkharmonizedifwcwemto~nsuuerule
202(e) N autheri7.eonly cortitkd ShoIthsttdtqlortcrs to tmkc “o”ste”ogmphic,videQtaperecnrdingsof
dqxsitioas upon oral -nation     in lieu of stcnngraphictmnsaiiptions. We believe,however,thst such
a an&&ion nf Rule 202(e)is fomcl& by section52.021 ef the GovcmmcntCede. Subsection(II)of
section 52.021ptidcs that a person “my not engsge in shorthand mpnrling in this slste unless the
parsonis ccrtihl as a shorthsndmpnrtu by the supmnmcourt. Gov’tC&e 8 52.021(b). Subsoztion(c)
of s&ion 52.021providesthat a certikation issuedunder chapter 52 of the GowmnxntCcdemustbe
for One or more “Mhods of ShortlUndre@i”g, “anlcly written shorn            machine shnrlhsnd, oral
mgmphy, or “sny other mahod of shorlhsnd mpnrting authorized by the supreme court.” Id.
8 52.021(c); see also Texas Suprenx court Standarbcsnd Rulesfor Certikstion of ktikd     Shorthand
Rcpatem pt. I(C) (unpublished,on 6le with the Court ReportersCertiticationBoard);AttorneyGeneral
Letter Opinion No. 93-110(1993)(noting that Texas SupremeCourt has not adoptedrules authorizing
olccttunicramding ss slmthmi rcpordngmctlmd). Oar conclusionin Letter OpinionNo. 93-110that
taprrcordlngisaotamethodofEhorthandrcpMtingendthatapcMnwhowssuchamdhoddosnot
act ss a cerMcd shorthandmpnrtcris equallyapplicabletn videotaperoxding.

        ‘S~bsecti0”(e) of se&m 52.021 of the GovernmentGxle pmvides that “[n]oIhing in this
s&section shall be construedto eithersanctionor pmhibitthe use of electmniccourtrecordingequipment
operatedby a noncertikd cmm reporterpmsoant and accordingto rules adoptedor approvedby the
sopremecourt.” In Lener Opinion 93-l 10, this office concludedthat this language is intendedto ensure
thatthe prohibitionin the first parl of the subsection,pncluding a personwho is not a certiiiedshorthand
reporterfrom holding himself or herself out as such, does not interferewith local coml roles permitting
elwtmnic recordingof court prcceedings. See LetterOpinion No. 93-110 (1993) at 2. This language
dces not permit a videogtapherto make a videotapeof a depositionupon oral examinationia lieu of a
stub3gmphictramxxiption.

         *It is well settkd that the taking of testimonyby depositionis a departurrfromthe common-law
rules of evidcnee and that the right N so take a depositiondepends entirely upon staNNry provisions
thcmfor. Tlms, the role in Texas is that the right to take the depositionof a witness dependsentirelyon
the statutes,and the provisionsof the statutesmost bs stktly complied with.” Gmza Y. Terra@,699
S.W.Zd275, 278 (Tex. App.-14th Dist.] 1985, w?it mfd n.r.c.) (citing fiporte Stiles, 150 S.W.Zd234
(Tcx. 1941)).




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Honorable Don Henderson - Page 5       (DM-339)




                                  SUMMARY

              Neither section 406.016 of the Government Code, rule 202 of
         the Texas Rules of Civil Procedure, nor Attorney General Opinion
         JM-110 (1983) permits a “vidwgrapher” who is also a notary public,
         but who is not a certitkd shorthand reporter, to make a videotape
         recording of a deposition upon oral examination in lieu of a
         stenographic transcription made by a certified shorthand reporter
         pursuant to an authorized method. Rule 202(e), to the extent it
         authorizes a court to permit parties to dispense with a stenographic
         transcription, wnflicts irreconcilably with section 52.021(t) of the
         Government Code. Rule 202(e) is void to the extent it wntlicts with
         the statute. Any person may make a videotape recording of a
         deposition upon oral examination if a certified shorthand reporter
         simultaneously makes a stenographic transcription pursuant to an
         authorized method.




                                                  DAN MORALES
                                                  Anomey General of Texas

JORGE VEGA
Fist Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General




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