August 8, 1989 

Honorable Galen Ray Sumrow Opinion No. JM-1083 

Criminal District Attorney 

Rockwall County Courthouse Re: Whether an individual may 

Rockwall, Texas 75087 be employed as a chief deputy 

for a county tax assessorcollector and as an official 

court reporter for a county 

court (RQ-1690) 

Dear Mr. Sumrow: 

You state that the person employed by Rockwall County 

as the county tax assessor-collector's chief deputy was 

formerly the official court reporter for the Rockwall County 

Court. She would like to know whether it would be legally 

possible for her to hold both positions. 

We will first consider whether article XVI, section 40 

of the Texas Constitution would prohibit one person from 

holding both positions. This provision states in part: 

No person shall hold or exercise at the same 

time, more than one civil office of emolument . . . . 

Tex . Const. art. XVI, 9 40. 

The following statute provides for the employment of a 

court reporter: 

Each judge of a court of record shall 

appoint an official court reporter. An 

official court reporter is a sworn officer of 

the court and holds office at the pleasure of 

the court. 

Gov't Code § 52.041. A county court is a court of record 

and is therefore subject to this provision. See Tex. Const. 

art. V, 5 15. 

p. 5656 
Honorable Galen Ray Sumrow - Page 2 (JM-1083) 

A court reporter is not an officer within article XVI, 

section 30,,of the Texas Constitution, which provides that 

the "duration of all offices not fixed by this Constitution 

shall never exceed two years . . . .'I In Robertson v. Ellis 

County, 84 S.W. 1097 (Tex. Civ. App. 1904, no writ), the 

court held that an official stenographer appointed by the 

district court did not hold an office within this constitutional provision. Although the statute described the 

position of stenographer as an office and declared that the 

stenographer "shall be a sworn officer of the court," it did 

not confer on that person any sovereign functions of the 

judicial department of the government. 84 S.W. at 1099. 

Other Texas courts have concluded that an official 

court reporter is not an officer within various other 

provisions. m Liahtfoot v. Lane, 140 S.W. 89, 90 (Tex. 

1911) (stenographer for Court of Civil Appeals was employee, 

not officer); Harris County v. Hunt, 388 S.W.2d 459, 467 

(Tex. Civ. App. - Houston 1965, no writ) (court reporter was 

not an officer within article XVI, section 61, of the Texas 

Constitution requiring officers to pay fees into county 

treasury); Tom Green Countv v. Proffitt, 195 S.W.Zd 845, 847 

(Tex. Civ. App. - Austin 1946, no writ) (official court 

reporter is not a "public officer" within article III, 

section 56, prohibition against local laws creating 

offices). Finally, this office has concluded that a court 

reporter is not a civil officer of emolument within article 

XVI, section 40, of the constitution. Attorney General 

Opinion O-6491 (1945).1 A court reporter for a county court 

is not a civil officer of emolument. 

A deputy appointed by a county tax assessor-collector 

to assist him in his duties is an employee, and not a civil 

officer of emolument. See Green v. Stewart, 516 S.W.2d 133 

(Tex. 1974); Local Gov't Code ch. 151 

employees by county officer). 

(ap;;t;Eytnt of 

Accordingly, WI, 

section 40, of the Texas Constitution does not prevent one 

person from holding both positions. 

The common law doctrine of incompatibility does not 

bar one person from holding two public employments. See 

1. The court in Tom Green Countv v. Proffitt, 195 

S.W.Zd 845 (Tex. Civ. App. - Austin 1946, no writ) described 

Attorney General Opinion O-6491 as 'Ia very able opinion" on 

the court reporter's status as an employee. 

p. 5657 
Honorable Galen Ray Sumrow - Page 3 (JM-1083) 

aenerally Attorney General Opinion JM-1047 (1989). The dual 

employment you inquire about is accordingly not prohibited 

by this doctrine. 

You argue, based on Attorney General Opinion o-5070 

(1943) I that the position of an official court reporter is a 

full-time position, and that the judge may not appoint a 

part-time court reporter. Attorney General Opinion O-5070 

determined that a district judge could not appoint the 

official court reporter to work part-time and be paid on a 

per diem basis. The official court reporter's yearly salary 

was set by statute and no statute authorized him to work 

part-time and receive a lesser amount. 

Attorney General Opinion O-5070 is not dispositive of 

this matter. It relied on statutes that have since been 

amended or repealed. m V.T.C.S. art. 2327a (1929, repealed 1947) (setting salary of court reporter). Moreover, 

it dealt only with the court reporter of a district court 

and not the court reporter of a county court. 

Section 52.046 of the Government Code, which states the 

powers and duties of an official court reporter, provides in 

part: 

(a) On reouest, an official court reporter 

shall: 

(1) attend all sessions of the court: 

(2) take full shorthand notes of oral 

testimony offered before the court . . . ; 

(3) take full shorthand notes of 

closing arguments if requested to do so by 

the attorney of a party to the case . . . ; 

(4) preserve the notes for future 

reference for three years . . . : 

(5) furnish a transcript of the 

reported evidence or other proceedings . . . . 

. . . . 

(d) A judge of a county court or county 

court at law shall appoint a certified shorthand reporter to report the oral testimony 

P. 5658 
Honorable Galen Ray Sumrow - Page 4 (JM-1083) 

given in any contested probate matter in that 

judge's court. (Emphasis added.) 

Gov't Code § 52.046. 

The position of court reporter is described in terms of 

the duties to be performed, not of the number of hours of 

service required each week. The number of hours required to 

perform the job will depend upon the number of sessions the 

court reporter is requested to attend, record, and reduce to 

a written transcript and is likely to reflect the workload 

of the court with which the reporter is associated. No 

provision fixes a salary for a county court reporter that 

must be paid without regard to the amount of time required 

to perform the duties of the position. Instead, the 

commissioners court sets the salary of the court reporter in 

accordance with chapter 152, subchapter B of the Local 

Government Code, formerly article 3912k, V.T.C.S. Attorney 

General Opinion MW-487 (1982). The commissioners court may 

set a salary commensurate with the number of hours worked. 

See Local Gov't Code 5 152.012 (salary may not be set at an 

amount less than the salary in effect on January 1, 1972). 

-We find no provision that expressly or impliedly 

requires the court reporter for the county court to serve as 

and be paid as a full-time employee, no matter how little 

work the job actually requires. See aenerallv Attorney 

General Opinions JM-163 (1984) (secretary of Rockwall County 

criminal district attorney is not barred from serving from 

time to time as court reporter for Rockwall County court); 

MW-415 (1981) (service by one person as deputy county clerk 

and deputy district clerk of Dallas County). Whether a 

person who already serves as deputy tax assessor-collector 

will be able to meet the work schedule of the court reporter 

for the county court is a fact question to be considered by 

the county judge in making the appointment and not a legal 

question to be addressed in an attorney general opinion. 

You ask whether your county personnel policy will be 

violated if one person holds both positions. Since this 

question is premised on a conclusion that a county court 

reporter must serve as a full-time employee, we need 

not address it. But see Attorney General Opinions JM-440 

(1986) ; JM-182 (1984) (commissioners court may not set hours 

for employees of other county officers). 

P. 5659 
Honorable Galen Ray Sumrow - Page 5 (JM-1083) 

SUMMARY 

Article XVI, section 40, of the Texas 

Constitution does not prohibit one person 

from serving as deputy tax assessorcollector of Rockwall County and court 

reporter of the Rockwall County Court. The 

position of official court reporter of the 

county court is not legally required to be a 

full-time position. 

dfy& 

MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

MU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 5660