### AUSTIN. TSXAS 78711

The Honorable Royce Adkins District Attorney 39th Judicial District Haskell, Texas 79521

Dear Mr. Adkins: July 25, 1973Opinion NO. H- 69 Re: Whether Court Reporter is entitled to be paid for preparing a Statement of Facts in connection with an application for writ ofhabeas corpus under Article Il.07, V. C. C. P. Your letter requesting our opinion asks whether a court reporter who prepares atranscript ofthe evidence at a hearing on a writ of habeas corpus is entitled to be compensated for it by the county. Article Il.07, Vernon’s Code of Criminal Procedure, governing the procedure for taking evidence on writs ofhabeas corpus, in pertinent part reads as follows:

“It shall be the duty of the official court reporter ofthe district judge or judges so designated to forthwith prepare a narration of the facts adduced in evidence upon any suchhearing and transmit the same, together with thejudge’s finding offact and conclusions of law, to the clerk of the Court of Criminal Appeals within ten days ofthe date of such hearing.” As your request notes, Article 11.07 fails to specifically provide payment to the court reporter in the case ofan indigent petitioner, as compared to the provisions ofArticle 40.09, V. C. C. P., (dealing with the preparation ofa Statement of Facts for use on direct appeal from the trial court):

p. 296The Honorable Royce Adkins, page 2 (H-69)

“A party desiring to have included in the record atranscription of notes ofthe reporter shall have the responsibility of obtaining such transcription and furnishing same to the clerk induplicate in time for inclusion in the record and defendant shall pay therefor. The **court** will order the reporter to make such transcription without charge tothe defendant ifthe court finds, a&terhearing in response to affidavit by defendant, that he is unable to pay or give security therefor. Upon.certificate ofthe court that this service has beeh rendered, payment therefor shall be made from the general funds by the county in which the offense is alleged to have been committed. The **court** reporter shall report any portion ofthe proceedings requested by either party or directed by the court. (emphasis added). There are no Texas cases dealing with this particular situation. However, there is authority indicating that court reporters may obtain compensation for preparing atranscript ofproceedings even if not a part ofhis official duties. See Attorney General’s Opinion No. V-976 **(1949).**InMcCoy v. State, 2S.W. 2d 242 (Tex. Crim. 1928), it was held that a **court** reporter may have official duties which extend beyond the express statutory requirements which would rest largely within the discret~ion ofthe trial court, **Attorney** General’s Opinion No. WW-702 (1959) stated that services for taking and transcribing depositions for the State could be legally paid for by the Comptroller in accordance with the fees prescribed inArticle 2324, V. T. C.S. Obviously the question presented in your request is not answered directly by these authorities since there is the express statutory require’ment ofArticle 11.07 that the court reporter prepare a Statement of Facts.

p. 297The Honorable Royce Adkins, page 3 (H-69)

Article 16.09, V. C. C. P., requires the reducing to writing of testimony given at an examining trial. As noted inAttorney General’s Opinion No. M-303 (1968): II

. . . [A]n official appointed court reporter who is required bythe Magistrate to transcribe and give the court the ‘original’ Statement of Facts is entitled to reasonable compensation for his services to the court aside from any private arrangement he may have with defense counsel.

“The examining trial is an official hearing authorized by law. Once a reporter is officially appointed by the Magistrate his Statement ofFacts become the work product ofthe **court** and may not be withheld for the private advantage .ofdefense counsel. ” An Article 11.07 habeas corpus hearing is “an official hearing authorized by law. ” The court reporter’s Statement ofFacts becomes

“the work product ofthe court. ” Therefore such transcripts should be on an equal basis with transcripts ofan examining trial .(Attorney General Opinion V-976 (1949), atape recording ofa radio program (Attorney General Opinion WW-874 (1960) when ordered bytheiiotrict attorney. See Attorney General’s Opinion WW-1334 (1962). Itis our opinion, therefore, that a court reporter who prepares a statement offacts reflecting the testimony given at ahearing ona writ of habeas corpus is entitled to be compensated for it bythe State or County. SUMMARY A **court** reporter who prepares the narration of the facts adduced in evidence at a hearing onawrit of



## p.298The Honorable Royce Adkins, page 4 (H-69)

habeas corpus under Article Il.07, V.T. C. C. P., is entitled to be compensated for its preparation by the State or County.Very truly yours,

APPI$@VED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 299