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### THE AYTORNES GENERAL OF-XAS

Honorable William Hunter District Attorney 69thJudicial District 404Danrock Avenue Dalhart, Texas 79022

Dear Mr. Hunter: Opinion No. ~-248
Re: What compensation, if any, isa court reporter entitled to receive for taking and transcribing depositions involving indigent defendants and for examining trial proceedings, and related questions?
**YOU**request the opinion of this office regarding the following questions: (1) When a court-appointed attorney foran indigent defendant properly secures the deposition of a **necessary** witness in compliance with Article 39.02 of theCode of Criminal Procedure, isan official court reporter of the appointing court entitled tobe paid compensation for the taking and transcribing of such deposition? If so,whose responsibility is it topay him andwhat rate of paymay be collected? (2) Isan official court reporter entitled to compensation for taking and transcribing examining trial proceedings at the request of the defendant's court-appointed attorney and the prosecuting attorney? If so,whose responsibility is it to make such payment andwhat rate ofpay **may**be collected? (3) When adeposition has been taken pursuant toArticle 39.02 and the prosecuting attorney requests a copy forhis use in connection with the case, is theCounty Commissioner's Court authorized to expend its funds for same?
In connection with your first question, we findno statutory provision which makes the taking and transcribing of depositions apart of such court reporter's official duties. The duties of a court reporter are enumerated inArticle 2324,

### Vernon’sCivil Statutes ofTexas. However, ithasbeen held inMcCoy v. State,

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108Cr.R. 583, 2 S.W.2d 242 (19271,that a court reporter may have official duties which extend beyond the express statutory requirements andwhich would rest largely within thediscretion of the trial court. Ithas also been held 

### inAttorney 

### General Opinion No. WW-702 (1959) that underArticle 2324 the services Of taking and transcribing depositions for the state could be legally paid forby the Comptroller inaccordance with the fees prescribed therein.
It is, therefore, the opinion of this office that the trial court could, ifhe found the **same** tobe necessary, exercise his discretion soas to require his official court reporter to take the deposition without compensation. On the other hand, itwould be the court's responsibility todetermine in each case if the reporter should be allowed compensation. paid compensation, If the reporter is to be the trial court **may** approve defendant counsel's application for same. Under the applicable existing statute, the responsibility forpresenting the application for reimbursement for thedeposition expense is that of the court-appointed counsel for the indigent defendant. Article 26.05, Sec. l(c)provides, inpart, that such counsel shall be paid forvarious undertakings from the general fund of the county inwhich theprosecution was instituted, and among other enumerated servicesmentioned, the following:

"For experrFesincurred forpurposes of investigation and axpert testimony, not **more** than $250.00."
We point out, however, that the specific amount is subject to approval for reasonableness by the trial court and that the application of the statute is expressly limited to those cases involving persons "accused of a felony or amisdemeanor punishable by imprisonment." Upon appeal of the case by the defendant, the cost of transcription of the reporter's notes, including anydepositions used in the trial, 

### istobe furnished thedefendant by the state. Article 40.09, Section 5,Code of Criminal Procedure, provides, inpart:II

. . .The court will order the reporter to make such transcription without charge todefendant if the court finds, after hearing in response toaffidavit by defendant thathe is unable topay or give security therefor. Upon certificate of the court that this service has been rendered, payment therefor shall

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Honorable William hunter, Page 3 **(M-248)**

bemade from the general funds by the county inwhich the offense is alleged tohave been committed

. . ." Since there isno statutory provision as to the amount tobe paid for taking and transcribing depositions in criminal cases, the amount of compensation due insofar as state funds are concerned is a reasonable amount. While the court-appointed attorney and the court reporter **may** agree as to an amount between them, the final determination as towhat constitutes a reasonable amount shall be at thediscretion of the trial judge, taking into consideration all thepertinent circumstances which **may**bear on this matter. Attorney General Opinion Nos. C-785 (19661,C-657 (1966),WW-874 (1960). However, in connection with the record on appeal of the case, the court reporter's compensation forpreparation of the transcript has been heretofore passed upon by this office andwe reaffirm that holding as stated in Attorney General Opinion No. WW-702 (1959),wherein itwas stated, inpart:"Although the statute does notprovide any . fee for 'taking' thedeposition when the duty todo so is imposed on a reporter, there is a statutory scheme forhis feeswhen hemakes 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 cents per one hundred words for the original thereof. (Article 2324, V.C.S.)
. . .II Turning now toyour second question, concerning compensation tobe paid the court reporter for taking and transcribing examining trial proceedings at the request of both theprosecuting attorney and thedefendant's court-appointed attorney, we note that there isno statutory provision which makes the taking and transcribing of examining trial proceedings apart of said court reporter's official duties. However, we believe our previous analysis herein with reference topre-trial depositions is pertinent to our answer to the second question, and we hold that the taking and transcribing of examining trial proceedings at the request of the court-appointed attorney and theprosecuting attorney likewise may become the court reporter's extrastatutory duty.

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Whenever theprosecuting **attorney** has requested the transcription of the examining trial proceedings, it is our opinion that the expense should be borne **by** the state. The payment of this expense may be paid by theCounty Commissioner's Court 

### inaccordance with our subsequent answer to the third question. When the transcription is requested only by defendant's court-appointed counsel, adifferent situation ispresented. In an examining trial, a magistrate is authorized to appoint counsel todefend an indigent accused. Article 16.01, Code of Criminal Procedure. This office has heretofore held inAttorney General Opinion No. C-657 (1966) thatArticle 26.05 isapplicable to examining trials and counsel who incur expenses for investigation and expert testimony in an examining trial are entitled tobe reimbursed in accordance with the provisions of that statute. Insofar as any state fundsmay be used, however, the statute sets the limit at "notmore than $250.00." The responsibility for reimbursing the court reporter under that statute is that of defense counsel and the rate of pay, not being fixed by statute, is thatwhich the trial court may find reasonable under ail the pertinent facts and circumstances. The third qvestion askswhether theCounty Commissioner's Court isauthorized to expend its funds for a copy of adeposition taken pursuant toArticle 39.02 and at the request of the prosecution for his use. We answer this question in the affirmative. InAttorney General Opinion No. WW-702 (1959), itwas stated, 

### in part: II

. . .It isnot the official duty of the reporter tomake 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, theprice thereof is amatter for negotiation between the reporter and that agency or department. [SeeAttorney General's Opinion WW-692 (1959)l. Ifappropriated funds are available to that agency or department to purchase the copy, the price agreed upon is entirely within thediscretion of that agency or department." Thus, any expense **by** theprosecuting attorney which is necessary and reasonable may **be** certified by him asprovided in Article 3899(b), Vernon's Civil Statutes, and should be paid under Article 40.09, paragraph 5,andAttorney General Opinion C-683 (1966). It is theduty of the Commissioner's Court to abide by that detarmination andmake payment from the general funds of the county.

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Honorable William Hunter, Page 5 **(M-248)**

SUMMARY (1)An official court reporter may **be** entitled to compensation for taking and transcribing depositions in certain criminal cases under Article **26.05,** Sec. l(c), C.C.P. and in examining trial proceedings underArticle 16.01, C.C.P. (21 befendant's court-appointed counsel is responsible for presenting application to the court for reimbursement of the cost when he alone orders the transcription, but the reimbursement is subject to statutory limitations. When the prosecuting attorney requests the transcription, he should certify the cost of same to theCounty Commissioner's Court forpayment. (3) The rate of compensation for such services is that found by the trial court **as reasonable**  under all thepertinent circumstances, subject to statutory limitations when requested by thedefense counsel only. (4)The Commissioner's Court'is authorized to pay out of the general funds of the county for copies of depositions taken under Article 39.02, C.C.P. and ordered by the prosecuting attorney forhis necessary use inhandling the case. You&ery truly,

C. MARTIN **neral** ofTexas Prepared by Robert Darden Assistant Attorney General
APPROVED: OPINION COMMITTEE:

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Honorable William Hunter, Page 6 (M-248)

Hawthorne Phillip, Chairman Kerns Taylor, Co-Chairman Monroe Clayton Mario Obledo David Longoria John Banks Robert Owen EXECUTIVE ASSISTANT A. J. Carubbi, Jr.

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