I . 

THE AYTORNES GENERAL 

OF-XAS 

Honorable William Hunter 

District Attorney 

69th Judicial District 

404 Danrock Avenue 

Dalhart, Texas 79022 

Dear Mr. Hunter: 

Opinion No. ~-248 

Re: What compensation, if 

any, is a 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 for an indigent 

defendant properly secures the deposition of a necessary witness in compliance with Article 39.02 of the Code of Criminal 

Procedure, is an official court reporter of the appointing court 

entitled to be paid compensation for the taking and transcribing 

of such deposition? If so, whose responsibility is it to pay 

him and what rate of pay may be collected? 

(2) Is an 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 and what rate of pay may be collected? 

(3) When a deposition has been taken pursuant to Article 

39.02 and the prosecuting attorney requests a copy for his use 

in connection with the case, is the County Commissioner's Court 

authorized to expend its funds for same? 

In connection with your first question, we find no statutory 

provision which makes the taking and transcribing of depositions 

a part of such court reporter's official duties. The duties of 

a court reporter are enumerated in Article 2324, Vernon’s Civil 

Statutes of Texas. However, it has been held in McCoy v. State, 

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Honorable William Hunter, Page 2 (u-2481 

108 Cr.R. 583, 2 S.W.2d 242 (19271, that a court reporter may 

have official duties which extend beyond the express statutory 

requirements and which would rest largely within the discretion 

of the trial court. It has also been held in Attorney General 

Opinion No. WW-702 (1959) that under Article 2324 the services 

Of taking and transcribing depositions for the state could be 

legally paid for by the Comptroller in accordance with the fees 

prescribed therein. 

It is, therefore, the opinion of this office that the trial 

court could, if he found the same to be necessary, exercise his 

discretion so as to require his official court reporter to take 

the deposition without compensation. On the other hand, it would 

be the court's responsibility to determine 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 for presenting the application for reimbursement 

for the deposition expense is that of the court-appointed counsel 

for the indigent defendant. Article 26.05, Sec. l(c) provides, 

in part, that such counsel shall be paid for various undertakings 

from the general fund of the county in which the prosecution was 

instituted, and among other enumerated services mentioned, the 

following: 

"For experrFes incurred for purposes 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 a misdemeanor punishable 

by imprisonment." 

Upon appeal of the case by the defendant, the cost of transcription of the reporter's notes, including any depositions 

used in the trial, is to be furnished the defendant by the state. 

Article 40.09, Section 5, Code of Criminal Procedure, provides, 

in part: 

II . . . The court will order the reporter to 

make such transcription without charge to defendant if the court finds, after hearing in 

response to affidavit by defendant that he 

is unable to pay 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) 

be made from the general funds by the county 

in which the offense is alleged to have been 

committed . . ." 

Since there is no statutory provision as to the amount 

to be 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 to what constitutes a 

reasonable amount shall be at the discretion of the trial judge, 

taking into consideration all the pertinent 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 

for preparation of the transcript has been heretofore passed 

upon by this office and we reaffirm that holding as stated in 

Attorney General Opinion No. WW-702 (1959), wherein it was stated, 

in part: 

"Although the statute does not provide any . 

fee for 'taking' the deposition when 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 cents per one hundred words 

for the original thereof. (Article 2324, 

V.C.S.) . . .II 

Turning now to your second question, concerning compensation 

to be paid the court reporter for taking and transcribing 

examining trial proceedings at the request of both the prosecuting attorney and the defendant's court-appointed attorney, we 

note that there is no statutory provision which makes the taking 

and transcribing of examining trial proceedings a part of said 

court reporter's official duties. However, we believe our previous 

analysis herein with reference to pre-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 the prosecuting 

attorney likewise may become the court reporter's extrastatutory duty. 

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Honorable William Hunter, Page 4 (M-248) 

Whenever the prosecuting 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 the County Commissioner's Court in accordance 

with our subsequent answer to the third question. When the transcription is requested only by defendant's court-appointed counsel, 

a different situation is presented. In an examining trial, a 

magistrate is authorized to appoint counsel to defend an indigent 

accused. Article 16.01, Code of Criminal Procedure. This office 

has heretofore held in Attorney General Opinion No. C-657 (1966) 

that Article 26.05 is applicable to examining trials and counsel 

who incur expenses for investigation and expert testimony in an 

examining trial are entitled to be reimbursed in accordance with the 

provisions of that statute. Insofar as any state funds may be 

used, however, the statute sets the limit at "not more 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 that which the trial court may find 

reasonable under ail the pertinent facts and circumstances. 

The third qvestion asks whether the County Commissioner's 

Court is authorized to expend its funds for a copy of a deposition 

taken pursuant to Article 39.02 and at the request of the prosecution for his use. We answer this question in the affirmative. 

In Attorney General Opinion No. WW-702 (1959), it was stated, in 

part: 

II . . . 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 negotiation between the reporter and that agency 

or department. [See Attorney General's Opinion 

WW-692 (1959)l. If appropriated funds are 

available to that agency or department to 

purchase the copy, the price agreed upon is 

entirely within the discretion of that agency 

or department." 

Thus, any expense by the prosecuting attorney which is necessary and reasonable may be certified by him as provided in 

Article 3899(b), Vernon's Civil Statutes, and should be paid 

under Article 40.09, paragraph 5, and Attorney General Opinion 

C-683 (1966). It is the duty of the Commissioner's Court to 

abide by that detarmination and make payment from the general 

funds of the county. 

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I . 

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 under Article 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 the County 

Commissioner's Court for payment. 

(3) The rate of compensation for such services 

is that found by the trial court as reasonable 

under all the pertinent circumstances, subject to 

statutory limitations when requested by the defense 

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 for his necessary use in handling the 

case. 

You&ery truly, 

C. MARTIN 

neral of Texas 

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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