                       August 8, 1989



Honorable Galen Ray Sumrow     Opinion No. JM-1083
Criminal District Attorney
Rockwall County Courthouse     Re: Whether an individual may
Rockwall, Texas   75087        be employed as a chief deputy
                               for a county tax assessor-
                               collector and as an official
                               court reporter    for a county
                               court   (RQ-1690)

Dear Mr. Sumrow:

     You state that the person employed by Rockwall   County
as the county tax assessor-collector's    chief  deputy  was
formerly the official court reporter for the Rockwall County
Court. She would like to know whether it would be legally
possible for her to hold both positions.

     We will first consider whether article XVI, section   40
of the Texas Constitution   would prohibit  one person   from
holding both positions.  This provision states in part:

        No person shall hold or exercise at the same
        time, more than one civil office of emolu-
        ment . . . .

Tex . Const. art. XVI, 9 40.

     The following statute provides for the employment of   a
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.

Gov't Code § 52.041. A county court is a court of record
and is therefore subject to this provision. See Tex. Const.
art. V, 5 15.




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Honorable Galen Ray Sumrow - Page 2 (JM-1083)




     A court reporter is not an officer within article   XVI,
section 30,,of the Texas Constitution, which provides    that
the "duration of all offices not fixed by this Constitution
shall never exceed two years . . . .'I In Robertson v. Ellis
County, 84 S.W. 1097 (Tex. Civ. App. 1904, no writ),      the
court held that an official stenographer   appointed by the
district court did not hold an office within this constitu-
tional provision.    Although  the statute described      the
position of stenographer as an office and declared that the
stenographer "shall be a sworn officer of the court," it did
not confer on that person any sovereign    functions of the
judicial department of the government.  84 S.W. at 1099.

     Other Texas courts have concluded     that an official
court reporter    is not an officer within various       other
provisions.    m    Liahtfoot v. Lane, 140 S.W. 89, 90   (Tex.
1911) (stenographer for Court of Civil Appeals was employee,
not officer); Harris    County v. Hunt, 388 S.W.2d 459, 467
(Tex. Civ. App. - Houston 1965, no writ) (court reporter was
not an officer within article XVI, section 61, of the Texas
Constitution requiring    officers to pay fees into county
treasury); Tom Green Countv v. Proffitt, 195 S.W.Zd 845, 847
(Tex. Civ. App. - Austin 1946, no writ)       (official court
reporter is not a "public officer" within        article  III,
section   56,    prohibition  against  local laws     creating
offices).   Finally, this office has concluded that a court
reporter is not a civil officer of emolument within    article
XVI, section 40, of the constitution.       Attorney   General
Opinion O-6491 (1945).1 A court reporter for a county court
is not a civil officer of emolument.

     A deputy appointed by a county tax assessor-collector
to assist him in his duties is an employee, and not a civil
officer of emolument.  See Green v. Stewart, 516 S.W.2d   133
(Tex. 1974); Local Gov't Code ch. 151       (ap;;t;Eytnt   of
employees by county officer). Accordingly,               WI,
section 40, of the Texas Constitution does not prevent    one
person from holding both positions.

     The common  law doctrine of incompatibility does      not
bar one person  from holding two public employments.       See



     1. The court in Tom Green Countv v. Proffitt,       195
S.W.Zd 845 (Tex. Civ. App. - Austin 1946, no writ) described
Attorney General Opinion O-6491 as 'Iavery able opinion"  on
the court reporter's status as an employee.




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Honorable Galen Ray Sumrow - Page 3 (JM-1083)




aenerally Attorney General Opinion JM-1047 (1989). The dual
employment you inquire about is accordingly not prohibited
by this doctrine.

     You argue, based on Attorney General Opinion o-5070
(1943) I that the position of an official court reporter is a
full-time position, and that the judge may     not appoint a
part-time court reporter.    Attorney General Opinion  O-5070
determined that a district judge could not appoint the
official court reporter to work part-time and be paid on a
per diem basis.   The official court reporter's yearly salary
was set by statute and no statute authorized     him to work
part-time and receive a lesser amount.

     Attorney General Opinion O-5070   is not dispositive     of
this matter.   It relied on statutes that have since been
amended or repealed. m      V.T.C.S. art.    2327a (1929,   re-
pealed 1947) (setting salary of court reporter).     Moreover,
it dealt only with the court reporter     of a district   court
and not the court reporter of a county court.

      Section 52.046 of the Government Code, which states the
powers and duties of an official court reporter, provides in
part:

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

                       (1)   attend all sessions of the court:

                (2) take full shorthand notes of oral
          testimony offered before the court . . . ;

                (3) take full shorthand    notes   of
          closing arguments if requested to do so by
          the attorney of a party to the case . . . ;

                (4) preserve the notes for                  future
          reference for three years . . . :

                (5) furnish a             transcript   of     the
          reported    evidence             or    other       pro-
          ceedings . . . .

           .   .   .    .

          (d) A judge of a county court or county
       court at law shall appoint a certified short-
       hand reporter to report the oral testimony




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Honorable Galen Ray Sumrow - Page 4 (JM-1083)




       given in any contested probate matter in   that
       judge's court.  (Emphasis added.)

Gov't Code § 52.046.

     The position of court reporter is described in terms of
the duties to be performed, not of the number of hours of
service required each week. The number of hours required to
perform the job will depend upon the number of sessions   the
court reporter is requested to attend, record, and reduce to
a written transcript and is likely to reflect the workload
of the court with which the reporter is associated.        No
provision fixes a salary for a county court reporter     that
must be paid without regard to the amount of time required
to perform   the duties of the position.        Instead,  the
commissioners court sets the salary of the court reporter in
accordance with chapter 152, subchapter     B of the Local
Government Code, formerly article 3912k, V.T.C.S.    Attorney
General Opinion MW-487 (1982). The commissioners court may
set a salary commensurate with the number of hours worked.
See Local Gov't Code 5 152.012 (salary may not be set at an
amount less than the salary in effect on January 1, 1972).

    -We find no provision     that expressly   or impliedly
requires the court reporter for the county court to serve as
and be paid as a full-time employee,   no matter how little
work the job actually    requires.   See aenerallv   Attorney
General Opinions JM-163 (1984) (secretary of Rockwall County
criminal district attorney is not barred from serving    from
time to time as court reporter for Rockwall County court);
MW-415 (1981) (service by one person as deputy county clerk
and deputy district clerk of Dallas County).       Whether   a
person who already serves as deputy tax assessor-collector
will be able to meet the work schedule of the court reporter
for the county court is a fact question to be considered   by
the county judge in making the appointment and not a legal
question to be addressed in an attorney general opinion.

     You ask whether   your county personnel  policy will be
violated if one person holds both positions.      Since this
question is premised   on a conclusion that a county     court
reporter must serve as a full-time employee,          we need
not address it.    But see Attorney  General Opinions   JM-440
(1986) ; JM-182 (1984) (commissioners court may not set hours
for employees of other county officers).




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Honorable Galen Ray Sumrow - Page 5 (JM-1083)




                       SUMMARY

           Article XVI, section 40, of the Texas
        Constitution does not prohibit    one person
        from serving    as   deputy   tax   assessor-
        collector  of Rockwall    County and    court
        reporter of the Rockwall County Court.    The
        position of official court reporter of the
        county court is not legally required to be a
        full-time position.

                                  dfy&



                                            MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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