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 achief deputy for a county tax assessorcollector and as an official court reporter for a county court (RQ-1690)
DearMr. Sumrow:
You state that the person employed byRockwall County as the county tax assessor-collector's chief deputy was formerly the official court reporter for theRockwall County Court. Shewould like to knowwhether itwould be legally possible forher tohold both positions.
Wewill first consider whether article XVI, section 40 of the Texas Constitution would prohibit one person from holding both positions. This provision states inpart:

No person shall hold or exercise at the same time, more than one civil office of emolument . . . . Tex.Const. art. XVI, 940. The following statute provides forthe employment of a court reporter:

Each judge of acourt of record shall appoint an official court reporter. An official court reporter isa sworn officer of the court andholds office at the pleasure of the court.
Gov't Code § 52.041. A county court is a court of record and istherefore subject to this provision. See Tex. Const. art.V, 5 15.

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A court reporter isnot 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 twoyears . . . .'IInRobertson v. Ellis County, 84 S.W. 1097 (Tex. Civ.App. 1904, nowrit), the court held that anofficial stenographer appointed by the district court did nothold an office within this constitutional provision. Although the statute described the position of stenographer as anoffice and declared that the stenographer "shall be a sworn officer of the court," itdid 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 forCourt of Civil Appeals was employee, not officer); Harris County v. Hunt, 388 S.W.2d 459, 467 (Tex.Civ.App. -Houston 1965, nowrit) (courtreporter was not an officer within article XVI, section 61, of the Texas Constitution requiring officers to pay fees into county treasury); TomGreen Countv v. Proffitt, 195 S.W.Zd 845, 847 (Tex.Civ. App. - Austin 1946, nowrit) (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 isnot a civil officer of emolument within article XVI, section 40, of the constitution. Attorney General Opinion O-6491 (1945).1 A court reporter fora county court isnot a civil officer of emolument.
Adeputy appointed by a county tax assessor-collector to assist him inhis duties isan 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 fromholding both positions.
The common lawdoctrine of incompatibility does not bar one person fromholding two public employments. See

1. The court inTom Green Countv v. Proffitt, 195 S.W.Zd 845 (Tex.Civ.App. -Austin 1946, nowrit) described Attorney General Opinion O-6491 as 'Ia very able opinion" on the court reporter's status as an employee.

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aenerally Attorney General Opinion JM-1047 (1989). The dual employment you inquire about isaccordingly not prohibited by this doctrine.
You argue, based on Attorney General Opinion o-5070 (1943)Ithat the position of anofficial court reporter isa 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 towork part-time andbepaid on a per diem **basis.** The official court reporter's yearly salary was setby statute and no statute authorized him to work part-time and receive a lesser amount. Attorney General Opinion O-5070 isnot dispositive of thismatter. Itrelied on statutes that have since been amended or repealed. **m** V.T.C.S. **art. 2327a**  **(1929, re**  pealed 1947) (setting salary of court reporter). Moreover, itdealt onlywith the court reporter ofa district court and not the court reporter ofacounty court. Section 52.046 of the Government Code, which states the powers and duties ofan official court reporter, provides in part: (a) On reouest, anofficial 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 ifrequested to do so by the attorney of aparty 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 acounty court or county court at law shall appoint acertified shorthand reporter to report the oral testimony

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given inany contested probate matter in that judge's court. (Emphasis added.)
Gov't Code § 52.046. The position of court reporter isdescribed in terms of the duties tobe performed, not of the number ofhours of service required eachweek. The number ofhours required to perform the jobwill depend upon the number of sessions the court reporter isrequested to attend, record, and reduce to awritten transcript and is likely to reflect the workload of the court with which the reporter is associated. No provision fixes a salary fora 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 ofhours worked. See Local Gov't Code 5 152.012 (salarymay not be set at an amount less than the salary ineffect onJanuary 1, 1972).
-We find no provision that expressly or impliedly requires the court reporter for the county court to serve as andbe paid as a full-time employee, nomatter how little work the job actually requires. See aenerallv Attorney General Opinions JM-163 (1984) (secretary ofRockwall County criminal district attorney is notbarred from serving from time to time as court reporter forRockwall County court); MW-415 (1981) (serviceby oneperson asdeputy county clerk and deputy district clerk of Dallas County). Whether a person who already serves asdeputy tax assessor-collector will be **able** tomeet thework schedule of the court reporter for the county court isa factquestion tobe considered by the county judge inmaking the appointment and not a legal question tobe addressed inan attorney general opinion.
You askwhether your county personnel policy will be violated if oneperson holds both positions. Since this question ispremised on a conclusion that acounty court reporter must serve as a full-time employee, we need not address it. But seeAttorney General Opinions JM-440 (1986);JM-182 (1984) (commissioners court may not sethours foremployees of other county officers).

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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 isnot legally required tobe a full-time position. dfy&

MATTOX Attorney General of Texas
MARY KELLER FirstAssistant 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

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