                                   The Attorney              General of Texas
                                                        July 7, 1982
MARK WHITE
Attorney    General


                                  Honorable James W. Smith                 opinion No. MW-4a7
Supreme Court Building            Frio County Attorney
P. 0. BOX 12546
Austin. TX. 76711. 2546
                                  P. 0. Box V                              Re: County liability for cost
5121475-2501                      Pearsall, Texas   78061                  of reporter's shorthand notes
Telex 9101874.1367                                                         in county court criminal trial
Telecopier   512I475.0266
                                  Dear Mr. Smith:
1607 Main St.. Suite 1400
Dallas, TX. 75201.4709                 You advise that Frio County does not have a county court-at-law
21417428944                       or other statutory court. and that the county court conducts criminal
                                  trials as well as civil trials. You ask if it is the responsibility
                                  of the county to pay a court reporter when one is demanded in a county
4824 Alberta Ave., Suile    160
El Paso, TX. 79905.2793
                                  court criminal trial and, if so, whether the costs thereof can be
91515333464                       adjudged against a convicted defendant.

                                       Article 2321, V.T.C.S.. which formerly applied only to each
1220 Dallas Ave.. Suite 202
                                  "district and criminal district judge" now reads:
Housto”, TX. 770026966
713J65C-0666
                                            Each judge of a court of record shall appoint an
                                            official court reporter who shall be a sworn
606 Broadway. Suite 312                     officer of the court and shall hold office at the
Lubbock. TX. 79401.3479
                                            pleasure of the court.
606/747-5236

                                  County courts are courts   of record.   Tex. Const. art. V. 115.
4309 N. Tenth. Suite B
McAllen. TX. 78501.1665                It is thus the dutyyof the county judge to appoint an official
5121682.4547                      court reporter for the court, and it is the duty of the official
                                  reporter, when requested, to attend all sessions of court, take full
200 Main Plaza, Suite 400         shorthand notes, preserve them, and furnish transcripts of evidence
San Antonio, TX. 78205.2797       and other proceedings. V.T.C.S. art. 2324. See also Tex. R. Civ. P.
512,2254191                       376b. Although such reporters should be certified, non-certified
                                  reporters may be employed if certified reporters are not available.
An Equal Opportunity1
                                  V.T.C.S. art. 2324b, §61. 14.      See also V.T.C.S. art. 2326a-1
Aflirmative Action Employer       (visiting reporters, payment).

                                       Even before article 2321 was amended to apply to all courts of
                                  record, it was mandatory that county courts appoint court reporters to
                                  report all trial proceedings in criminal trials when requested by the
                                  defendant. Code Crim. Proc. art. 40.09. 54. Cartwright v. State, 527
                                  S.W.2d 535 (Tex. Grim. App. 1975). Article 40.09, section 4 of the
                                  Code of Criminal Procedure specifies:




                                                             p. 1722
Honorable James W. Smith - ysge 2 ,@W-487)




          At the request of either party the court reporter
          shall   take  shorthand notes     of  all   trial
          proceedings, including voir dire exsmination.
          objections to the court's charge, and final
          arguments. He is not entitled to any fee in
          addition to his official salary for taking these
          notes....

A similar rule applies with respect to civil cases in county courts.
V.T.C.S. art. 2327. Although these statutes require the appointed
shorthand reporter to take notes of proceedings only when requested to
do so by a party, another statute, article 2327d. V.T.C.S., permits
the county judge to have the official reporter take and preserve a
record of all hearings before him.

     In any case, the burden of the court reporter's official salary
is to be borne by the county for which the reporter was appointed.
Article 2326~. V.T.C.S., provides:

         The official shorthand reporter... of any County
         Court... in this State, where the compensation of
         such reporter of such County Court... is not
         otherwise provided by special law. shall receive a
         salary of [not more than Two Thousand Seven
         Hundred Dollars ($2.700.00) per annum, nor less
         than Two Thousand Four Hundred Dollars ($2.400.00)
         per annum], such salary to be fixed and determined
         by the... County Judge... of the Court wherein
         such shorthand reporter is employed, in addition
         to the comnensstion for transcriot fees ss
         provided for-by law. Said salary shall
                                              1    be paid
         monthly by the Commissioners Court of the county
         out of the General Fund of the county, or in the
         discretion of the Commissioners Court, out of the
         jury fund of said County.... (Emphasis added).

     The foregoing statute no longer governs the amount of salary that
may be paid the official reporter for a county court, but it still
specifies the source of the salary. To the extent that article 2326~
purports to prescribe the salary, it has been repealed by article
3912k. V.T.C.S. See Attorney General Opinion H-200 (1974). The
latter act allows the salary to be set at no less than the appropriate
salary existing on January 1, 1972, but does not specify a maximum.

     In the case of most offices to which it is applicable, section 1
of article 3912k directs that the salary be set by the cormnissioners
court, but section 4 thereof specifies:




                                p. 1723
Honorable James W. Smith - Page 3   (MW-487)




          Nothing in this Act is intended to affect the
          lawful procedures and delegations of authority
          heretofore established in any county for the
          purpose of setting the salary of county and
          precinct employees.

Inasmuch as article 2326~. V.T.C.S., had theretofore delegated to the
county judge the authority to set the salary for the county court
official shorthand reporter, the county judge continues to possess
that power in Frio County.

     There is no provision in the law for assessing the official
salary of the court reporter (or the per diem and expenses of a
substitute) ss costs against a criminal defendant. See Code Crim.
Proc. art. 1011. See also V.T.C.S. arts. 2326s. 2326a-1, 2326~. On
the other hand, a defendant requesting transcription of the reporter's
shorthand notes will in most cases be required to pay therefor. Code
Crim. Proc. art. 40.09, §5. -See Attorney General Opinion H-200
(1974).

     We advise that it is the responsibility of Frio County to pay a
court reporter when one is demanded in a county court criminal trial
and that neither the costs of the reporter's official salary, nor the
per diem and expenses of a substitute, can be adjudged against s
convicted defendant.

                             SUMMARY

             It is the responsibility of Frio County to pay
          a court reporter when one is demsnded in a county
          court criminal trial, and neither the costs of the
          reporter's salary, nor the per diem and expenses
          of a substitute, can be adjudged against a
          convicted defendant.




                                        MA RR     WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General




                              p. 1724
tlonorableJames W. Smith - Page 4   (MW-487)




Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojoss
Jim Moellinger
Jack Sparks
Bruce Youngblood




                               p. 1725
