                   THE         ATTORSEY         GESERAL
                                   OF   ?&-ESAS


                                     August     7,     1987




Honorable Dale Hanna                                    Opinion         No,    JM-764
Johnson County Attorney
1st Floor,  Courthouse                                  Re:     Whether the individual      who
Cleburne.  Texas 76031                                  keeps the minutes for       a commis-
                                                        sioners    court is required    to   be
                                                        a certified     shorthand  reporter

Dear Mr. Hanna:

      You ask       whether   the county   clerk  or                    a duly     appointed       deputy
county    clerk      who keeps    the   minutes  of                    the     proceedings        of    the
commissioners        court  is required    to be a                     certified      official       court
reporter.

        Section 52.041 of        the Government Code provides                     that    every    “court
of   record” must appoint         an “official court reporter”:

                     Each judge of a court       of record  shall  appoint
                an official     court  reporter.       An official   court
                reporter    is a sworn officer     of the court and holds
                office   at the pleasure    of the court.

Section    52.001(3)      of    the Government     Code defines    “official   court
reporter”     as “the     shorthand   reporter     appointed   by a judge    as the
official    court    reporter.”     Section    52.001(5)    of the Government Code
defines   “shorthand     reporting”   as

                the practice       of shorthand     reporting     for use in
                litigation    in the courts    of this state by making a
                verbatim     record    of   an oral      court    proceeding,
                deposition,      or proceeding     before     a grand     jury,
                referee,     or    court   commissioner       "Sing    written
                symbols in shorthand,        machine    shorthand,     or oral
                stenography.

Section        52.046    of the Government Code                 sets     out   the    powers      and   the
duties    of     an official   court reporter:

                    (a)   On   request,    an        official          court     reporter
                shall:




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                         (1)    attend   all    sessions    of    the court;

                         (2)    take  full    shorthand    notes    of   oral
              testimony      offered    before     the  court,    including
              objections     made to the admissibility         of evidence,
              court    rulings    end remarks on the objections,          end
              exceptions     to the rulings;

                          (3)    take full      shorthand   notes    of closing
              arguments if        requested     to do so by the attorney       of
              a party      to   the case,      including   objections    to the
              arguments,        court     rulings      end  remarks     on    the
              objections,       end exceptions       to the rulings:

                        (4)     preserve   the     notes                 for  future
              reference     for three years    from the                date on which
              they were taken; and

                        (5)  furnish    a transcript              of   the reported
              evidence    or other     proceedings,              in    whole  or   in
              part,   es provided    by this chapter.

                  (b) An official       court   reporter    of a district
              court    may conduct      the deposition       of witnesses,
                                                                                                      -,
              receive,    execute,    end return commissions,      end make
              a certificate        of the proceedings       in any county
              that is included       in the judicial     district   of that
              court.

                  (c)     The     supreme   court            may     adopt      rules
              consistent      with the relevant            statutes       to provide
              for     the    duties    and   fees          of    official       court
              reporters     in all civil   judicial           proceedings.

                   (d) A judge of a county court       or county    court
               at    law  shall    appoint   a  certified      shorthand
               reporter  to report   the oral testimony    given in any
               contested  probate matter in that judge’s       court.

        A commissioners            court    is not a court      that conducts      litigation;
 rather,     it is “e political            body, the powers end duties         of its members
 being largely         legislative       and ministerial.”       Robinson v. Smith County,
 76 S.W.         584     (Tex.      Civ.     App.  1903,     no   writ).     Nonetheless,         a
 commissioners         court has been said to be a “court                of record.”       Maples
 v. Henderson          County,      259 S.W.2d 264 (Tex.         Civ. App. - Dallas          1953,
 writ    ref’d      n.r.e.).         Consequently,     you are concerned         that     section
 52.041 of the Government Code, which requires                      all courts    of record to
 appoint      official       court    reporters,    requires     that the county        clerk    or




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    deputy county      clerk that keeps        the minutes      for   the   commissioners       court
    be en official       court reporter.

            We think,     however,    that the phrase "court            of record"    in section
    52.041 of the Government Code must be reed in the context                      of the other
    statutes      deeling      with    official        court    reporters.     Section      52.001
    defines     en official     court reporter         es a person who practices        shorthand
    reporting     for use in litigation,            end the powers and duties        of official
    court reporters         that are set out in section            52.046 relate   generally     to
    litigation.       Therefore,     we think that the requirement            that every court
    of record     appoint a shorthand           reporter     was intended   to apply to courts
    that conduct litigation.

            Furthermore,       even if     the phrase     "court     of record"     as used in
    section       52.041    did encompass       commissioners       courts,    we think      that
    article      2349, V.T.C.S.,      rather   than chapter      52 of the Government Code
    governs how and by whom the proceedings                of commissioners      courts   are to
    be recorded.         T.he commissioners       court  is a "court       of record"    because
    it is required         to record     its proceedings.         Attorney    General    Opinion
    V-1038      (1950).     In Attorney     General Opinion O-6318 (1945)           this office
    said     th;?t article      2349,   V.T.C.S.,      makes the commissioners          court    a
    court of record.          Article   2349 provides:

r                    The court       shell     require     the county        clerk    to
                 keep suitable       books in which shall be recorded               the
                 proceedings       of    each     term of      the    court;      which
                 record shall be reed end signed after                  each term by
                 the county       judge,      or the member presiding               end
                 attested      by    the    clerk.       The clerk        shell    also
                 record    all    authorized        proceedings      of    the court
                 between terms;        and such record         shell     be reed and
                 signed   on the first           day of the term next after
                 such proceedings         occurred.


    See also V.T.C.S.           art.   1938 (county        clerk    may appoint      deputies      who
    shell    perform     all    acts   of county      clerk).       Thus, the same provision
    that makes the commissioners               court a court of record          assigns     the task
    of keeping      the minutes of the commissioners               court to the county clerk.
    Compare Attorney         General Opinion V-1038 (1950)(indicating                 that minutes
    of commissioners         court should contain          a record of actions        taken rather
    than     a    verbatim        transcription        of     meeting);       with     Go"' t     Code
    §52.001(official          court      reporters     keep     verbatim      transcriptions          of
    proceedings).         We find      no requirement         that    the county      clerk     be an
    official      shorthand      reporter.        See generally        V.T.C.S.    art.    2345 end
    Gov't Code 551.402 (powers and duties                  of county clerk).        A general       law
    does not ordinarily           repeal    a special     law on the same subject;            rather,
    the special        law is construed           as an exception          to the general         law.
P   Flowers v. Pecos River R. Co., 156 S.W.2d 260 (Tex. 1941).                           Therefore,




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    we think     that   article    2349,    which    governs  how and by whom the
    proceedings    of comissioners      courts    are to be recorded,   would be read
    as an exception      to the statute       that sets out a general      requirement
    that courts    of record must appoint        an official  court reporter    even if
    that general    rule were broad enough to include        commissioners    courts.

                                          SUMMARY

                    A commissioners          court      is   not   required     to
                appoint   en official       court     reporter   to record    its
                proceedings.




                . .

    MARY KELLER
-   Executive Assistant     Attorney      General

    JUDGE ZOLLIE STEAKLCI
    Special Assistant Attorney          General

    RICK GILPIN
    Chairmen, Opinion     Committee

    Prepared    by Sarah Woelk
    Assistant    Attorney General




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