THEA~~-~RNEY GENERAL
OFTEXAS

September 11, 1959

HonorableRobert S. Calvert Comptroller of PublicAcco,unts Capitol Station Austin, Texas OpinionNo. WW-702
Re: Authority of the Comptroller to approve a voucher for payment to a court reporter for taking oral deposition of a witness of a pending case, underArticle 2423a, Vernon's Civil Statutes and related Dear Mr. Calvert: Articles.

We have receivedyour letter of August 6, 1959,which reads as follows:

"Thisdepartmenthas received a voucher presentedby your department for payment to Jack K. Tingle, a court reporter, for taking oral depositions from a witness. This voucher is being returned to you as we are doubtful that it is properlypayableby the state in view of the holdings inAttorney General's Opinion numberV-409 and Articles 2324a, 2324, 2326, 3746, andRule 194 of R.C.P. This departmentwill appreciatehearing from you as to your findings in the event you find that this voucher is payableby the state. There is no litigation pendingwhich will have a bearing on this question." Attorney General'sOpinionV-409 (1947)relating to the duty of a court reporter underArticle 119,V.C.C.P. reads in part as follows:. .

HonorableRobert S. Calvert, Page 2 (ww-702)

"A court reporter is an officer of the court. In performingthe functions and duties imposed upon him by Article 119, he is merely performingan added duty for which no provision is madefor extra compensationby the State." Article 232&a,Vernon's Civil Statutes, reads in part as follows:

"Section 1. All official District Court reporters are authorized to take depositionsof witnesses, and to receive, execute and return commissions,administer oaths and affidavits, in connectionwith such depositions,and make a certificateof such fact, and do all other things necessary in the taking of such depositions in accordancewith existing laws. (Emphasisours). Article 2326,Vernon's Civil Statutes, is the general statute establishingcompensationof court reporters in various categoriesof counties. In each category the stipulated compensation is specificallyset to be in addition to the "transcriptfees" that may be charged by the reporter. Article 3746, Vernon's Civil Statutes, and Rule 194, Rules of Civil Procedure, impose a duty on the addressee of a commissionto take the depositionof a witness.
We shall assume it is the official duty of the court reporter to take the deposition of witnesses in proceedings before the court. May, then, the reporter charge the state a fee for such service, and if so, how much may he charge the state?

Article 2,324,

Vernon'sXiv11 Statutes, reads as follows: "Eachofficial court reporter shall:

"Attendall sessions of the court; take full shorthandnotes of all oral testimony offered in every case tried in said court, togetherwith all objectionsto the admissibilityof the evidence, the rulings and remarks of the court thereon, and. .

HonorableRobert S. Calvert, page 3 (W-702)

all exceptionsthereto; take full shorthand notes of closing argumentswhen requested so to do by the attorney for any party to such case, togetherwith all objections to such arguments, the rulings and remarks of the court thereon, and all exceptionsthereto;
"Preserveall shorthandnotes taken in said court for future use or reference for a full year, and furnish to any person a transcript in question and answer form of all such evidence or other proceedings,or any portion - _ thereof as such personmay order, upon-thepayment to him of the fees providedby law. "Whenany party to any suit reported by any such reporter shall desi.re a transcript of the evidence in said suit, said partymay apply for same and the reporter shallmake up such transcript and shall receive as compensationtherefor the sum of not more than thirty cents per one hundredwords for the original thereof. In the event said transcript should be orderedmade in narrative form, then such reporter shallmake up same in duplicate in narrative form, and shall receive as compensationtherefor the sum of twenty cents per hundred words for the originrl; provided,however, that no charge shall be made for the duplicate copy, and provided further, that in case any reporter charges more than the fees herein allowedhe shall be liable to the person paying the same a sum equal to four times the excess so paid. "Providedfurther, that when such court reporter is requested to report the ciosing arguments in any case, the clerk of the court shall tax as costs in such case the sum of Five Dollars ($5.00). Said fee shall be paid as other costs in the case, and paid by said clerk,when collected, into the General Funds of the county inwhich said court sits; provided further,however, that if a transcript of such arguments or any portion thereof be ordered by any party, said reporter shall prepare‘

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Honorable Robert S. Calvert,page 4 (WW-702)

same and charge therefor at the rate herein provided for transcripts in question and answer form;provided, that in case any reporter chargesmore than the fees herein allowedhe shallbe liable to the person paying the same a sum equal to four times' the excess sopaid. As amended Acts 1955, 54th Leg., p. 1033, ch. 390, 81." The above statutesand rules establish that the reporter is authorized to take depositions,and in certain instances a duty to do so is imposedupon him. It is clear that a deposition is evidence taken from a witness in a judicialproceeding (see 12Words and Phrases, 253, and numerous cases cited therein). We feel the duty of the reporter relative to taking depositions is the same as his duty to take other oral testimony in the proceeding.

Itwill be noted that the only duty imposedupon the reporter by any of the above statutes is to "take"the testimony offered in full shorthandnotes. There is no duty imposed on a reporter to transcribe those notes unless and until he is requested to do so. It is specificallyprovided that if he is requested to transcribe the testimony,he may charge a transcript fee.

Although the statutedoes not provide any fee for "taking"the depositionwhen the duty to do so is imposed on a reporter, there is a statutory scheme for his fees when he makes a transcript thereof. If the transcript is written in other than narrative form, the reporter may charge, and the state may pay, not to exceed thirty centsper one hundredwords for the original thereof. (Article2324). It is not the official duty of the reporter to make a carbon copy of the transcript if so taken, so if one is ordered and made for the use of a state agency or department, the price thereof is a matter for negotiationbetween the reporter. and that agency or department. (SeeAttorney General'sOpinionW-692 (19%)). If appropriated funds are available to that agency or department to purchase the copy, the price agreed upon is entirelywithin the discretion of that agency or department.

Therefore,you are advised that in our opinion, the Comptrollermay issuewarrants in payment for servicesrendered*

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HonorableRobert S. Calvert,Page 5 (W-702)

by court reporter8 in transcribingdepositions for the state in accordancewith the feesprescribed in Article 2324 of Vernon's Civil Statutes.

SUMMARY

The Comptrollermay issue warrants inpayment for services rendered by court reporters in transcribing depositions for the state in accordance with the feesprescribed in Article 2324 of Vernon's Civil Statutes.
Yours very truly,
WILL WILSON Attorney General of Texas

TIM:mfh:rm Tom I. McFarling Assistant

APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
B. H. Tlmmins, Jr. C. Dean Davis William E. Allen Jay Howell
REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert