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November 7, 1968.

HonorableJames E. Barlow Criminal DistrictAttorney Bexar County Courthouse San Antonio, Texas Opinion No. M-303
Re: Authorityof a ,Justiceof the Peace, sitting as a Magistrate, to require certificationand delivery of Statementof Facts under stated circumstancespursuant to Articles 16.09 and 17.30,C.C.P. Dear Mr. Barlow:
You request the opinion of this office as to the authority of a Justice of the Peace, sitting as a Magistrate, to require a **court** appointed reporterpaid by defense counsel andwithout cost to the couhty to give the original transcribed Statement of Facts to the Magistrate for certification pursuant to Article 16.09,Texas Code of Criminal Procedure and for delivery to the clerk of the propqqcourt in accord with Article 17.30,Texas Code of Criminal Procedure. YOU also ask whether a court reporter's failureupon the advice of defense counsel, to tender the Statement of Facts for certification and delivery const~itutes a basis forcontenupt of court proceedings. In answeringyour question,we assume that the reporter acceptedhis appointment as an official court reporter and that defense counseldid not object~to such appointment. Article,16.09describes the procedure for reducing to writing testimonygiven before a Justice of the Peace,when sitting as a Magistrate:

"The testimonyof each~ witness shall be reduced to writing by or under the direction of the magistrate, and,shall then be read over to:the witness, or he **may** read it over himself. Such corrections shall be made in-the same as the witnessmay direct: and he shall then,sign the same by affixing thereto his name or mark. All the testimony thus taken shall be certifiedto by themagistrate. In lieu of the aboveprovision, a statementof,facts authenticatedby ..

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State and defense counsel and approvedby the presidingmagistratemay be used to preserve the ' testimonyof witnesses." Article 16.09 imposes a mandatory1 duty on the Magistrate to have a written record of each examining trial. Attorney General's Opinion **No.** C-562 (1965).
Your opinion request states that "TheMagistrates have been using tape recordingmachines and each side **can** replay the testimony **of** any witness any time he desires. **(No trans**  cription is sent to the Clerk of the **District** Courts, and none has ever been demanded)." The mandatory requirementsof Article i6.09would seem to preclude use of tape recordingmachines as a substitute -.- for a written record. Article 17.30 reauires the 'Maaistrateto certifv the proceedingsbefore him. and deliver them to the prop& for use by the grand iury and the prosecuting office: court

"Themagistrate,beforewhom an examination has taken place'upon a criminal accusation, shall certify to all the proceedings, had before him, as well as whe?%heTi&zharges, holds to bail or - - _ commits, and transmit them, sealed up, to the court before which the defendant **may** be tried,writing his name across the seals of the envelone.,The voluntary statementof the defendant, the testi- '

11 bonds, and everxother-

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, shall **be** thus"delivere of the proper court,without delay.* See Kimbrough v. State:,28 Crim.Rep. 367, 13 **S.W.** 218 Cl8§0). Neither themandatory provision of Article 16.09 **nor** the certificationor deliveryprovisions of Article 17.30ray be compliedwith if the reporter appointedunder the direction of the Magistrate refusesor fails to tender the Statement of Facts to theMagistrate, kowever, an officially appointed court **report& who**  is requiredby the Magistrate to transcribe and give ‘thecourt the "original"Statement of Facts is entitled to reasonable compensation for his services to the court aside from any private arrangementhe may have with defense counsel. See Attorney General's OpinionM-248 (19681.

1 Emphasis added throughout. -14X-. -

Hon. James E. Barlow, Page 3 (M-303 )

The examining trial by law. Once a reporter Magistrate his Statement of **the court**  andmav not tage **of** defense counsel. The very purpose of IS is of an official hearing authorized officially appointed **by** the Facts become the work product withheld for the private advanArticle 16.09 is to assure that the

_ _. _ testimony of witnesses **be** preserved and When done by a court appo;ntedhreporter,itmust be made available to the court so t at t e Magistrate **may** fulfillhis statutoryduty. 16 Tex.Jur. 2d, 314, Criminal Law, Sec. 156,The ExaminingTrial - Purpose. A failure to do so constitutes criminal contempt of court by unlawfully interferingwith its proceedings. 12 Tex. Jur.Zd 484, Contempt, Sec. 3. Defense counsel is an officer of the court and as such may be held guilty of contempt if he fails in his duty with respect to the execution of the court's order. 12 Tex.Jur. 2d, 498, Contempt, Sec. 17. Article 2386,Vernon'sTexas Statutes, states that: "Justicesof the peace shall also have **power:**

1. To punish any party guilty of a contempt of **court by**  fine not to exceed twenty-five dollars and by imprisonmentnot exceeding one day."
You are therefore advised that **a** Justice of the Peace, sitting as a Magistrate,has the authority and the duty to require **a** reporter appointedby the Magistrate to submit the original of his Statement of Facts (forwhich he receives reasonable compensation) for certificationand delivery to the proper court. Anyone interferingwith **this** judicialproceeding **may** be held in criminal contempt of court. t SUMMARY
A Justice of the Peace, sitting as a Magistrate, has the authority and mandatory duty to require examining trial proceedings to be reduced to writing, certified, and delivered ' to the proper **court.** When a reporter is officially appointed **by** the Magistrate, he must **be** paid a

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Hon. James E. Barlow, Page 4 **(M-303** )

reasonable compensation for his services in preoarina an oriainal Statement of **Facts** for the Court even though the reporterwas first retained and paid bv defense counsel. Anyone interferingwith this judicialproceeding **may** be held **in** criminal contempt of 'court. V&truly yours,

Preparedby Charles T. Rose AssistantAttorney General APPROVED: OPINION COMMITTEE Hawthorne Phillips,Chairman Kerns Taylor, Co-Chairman R. L. Lattimore Polk Shelton James Quick W. 0. Shultz EXECUTIVEASSISTANT ATTORNEYGENERAL A. J. Carubbi, Jr.

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