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IA 

R? 

November 7, 1968. 

Honorable James E. Barlow 

Criminal District Attorney 

Bexar County Courthouse 

San Antonio, Texas 

Opinion No. M-303 

Re: Authority of a ,Justice of 

the Peace, sitting as a 

Magistrate, to require 

certification and delivery 

of Statement of Facts under 

stated circumstances pursuant to Articles 16.09 

Dear Mr. Barlow: and 17.30, C.C.P. 

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 reporter paid by defense counsel 

and without 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 failure upon the advice 

of defense counsel, to tender the Statement of Facts for 

certification and delivery const~itutes a basis for contenupt 

of court proceedings. In answering your question, we assume 

that the reporter accepted his appointment as an official 

court reporter and that defense counsel did not object~to 

such appointment. 

Article,16.09 describes the procedure for reducing to 

writing testimony given before a Justice of the Peace, when 

sitting as a Magistrate: 

"The testimony of 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 

witness may direct: and he shall then,sign the 

same by affixing thereto his name or mark. All 

the testimony thus taken shall be certified to 

by the magistrate. In lieu of the above provision, a statement of,facts authenticated by 

. . 

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Hon. Jemes E. Barlow, Page 2 (M-303 ) 

State and defense counsel and approved by the 

presiding magistrate may be used to preserve the ' 

testimony of 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 "The Magistrates have 

been using tape recording machines and each side can replay 

the testimony of any witness any time he desires. (No transcription is sent to the Clerk of the District Courts, and 

none has ever been demanded)." 

The mandatory requirements of Article i6.09 would seem 

to preclude use of tape recording machines -.- as a substitute 

for a written record. 

Article 17.30 reauires the 'Maaistrate to certifv the 

proceedings before him. and deliver them to the prop& 

for use by the grand iury and the prosecuting office: 

court 

"The magistrate, before whom 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 statement of the defendant, the testi- ' 

11 bonds, . and .- _- everxother- 

, 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 the mandatory provision of Article 16.09 nor the 

certification or delivery provisions of Article 17.30 ray 

be complied with if the reporter appointed under the direction 

of the Magistrate refusesor fails to tender the Statement of 

Facts to the Magistrate, 

kowever, an officially appointed court report& who is 

required by the 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. See 

Attorney General's Opinion M-248 (19681. 

1 Emphasis added throughout. 

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

The examining trial 

by law. Once a reporter 

Magistrate his Statement 

of the court and mav 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, it must be made available to the court 

so t at t e Magistrate may fulfill his statutory duty. 16 

Tex.Jur. 2d, 314, Criminal Law, Sec. 156, The Examining Trial - 

Purpose. A failure to do so constitutes criminal contempt of 

court by unlawfully interfering with 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's Texas Statutes, states 

that: 

"Justices of 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 imprisonment not 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 appointed by the Magistrate to submit the 

original of his Statement of Facts (for which he receives 

reasonable compensation) for certification and delivery to 

the proper court. Anyone interfering with this judicial proceeding 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 reporter was first retained and 

paid bv defense counsel. Anyone interfering with this judicial proceeding 

may be held in criminal contempt of 

'court. 

V&truly yours, 

Prepared by Charles T. Rose 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

R. L. Lattimore 

Polk Shelton 

James Quick 

W. 0. Shultz 

EXECUTIVE ASSISTANT ATTORNEY GENERAL 

A. J. Carubbi, Jr. 

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