@ffice of the !Zhxnep Qkneral 

State of, ZEexae 

DAN MORALES 

ATTORNEY GENERAL December 5, 1994 

Honorable Merrill L. Hartman Opinion No. DM-308 

Chair 

Court Reporters Certification Board Re: Whether rule 166c of the Texas Rules 

P.O. Box 13131 of Civil Procedure and section 52.021(f) of 

Austin, Texas 78711-3131 the Government Code conflict (RQ-695) 

Dear Judge Hartman: 

You request claritlcation of Letter Opinion No. 93-l 10 (1993) in which this office 

addressed, at your request, the relationship between subsections (e) and (t) of section 

52.021 of the Government Code. Specifically. you ask whether rule 166~ of the Texas 

Rules of Civil Procedure and section 52.021(f) of the Government Code conflict, a 

question which you did not raise and this office did not reach in our prior letter ophxion.r 

Section 52.021 of the Government Code provides in pertinent part: 

(e) A person may not assume or use the title or designation 

“court recorder,” “ court reporter,” or “shorthand reporter,” or any 

abbreviation, title, designation, words, letters, sign, card, or device 

tending to indicate that the person is a court reporter or shorthand 

reporter, unless the person is certified as a shorthand reporter by the 

supreme court. Nothing in this subsection shall be construed to 

either sanction or prohibit the use of electronic court recording 

equipment operated by a noncertified court reporter pursuant and 

according to rules adopt4 or approved by the supreme court. 

(t) Except as provided by Section 52.031 and by Section 

20.001, Civil Practice and Remedies Code, all akposiiions conducted in this slate must be recorded by a cert@ed shorthand 

reporter. 

(g) The board may enforce this section by seeking an injunction 

or by filing a complaint against a person who is not certified by the 

supreme court in the district court of the county in which that person 

resides. Said action for an injunction shall be in addition to any other 

tin the letter opinion, we expressly noted that we did not consider the relationship behveen 

section SZ.OZl(fJ and rule 202 of the Texas Rules of Civil Procedure. See Letter Opinion No. 93-110 

(1993) at 3 n.2. 

p. 1646 
Honorable Merrill L. Hartman - Page 2 (DM-308) 

action, proceeding, or remedy authorized by law. The board shall be 

represented by the attorney general and/or the county or district 

attorney of this state, or counsel designated and empowered by the 

board. 

Gov’t Code 5 52.021(e) - (g) (emphasis added). In Letter Gpiion No. 93-l 10, this office 

concluded that subsection (f) refers to depositions upon oral examination. Letter Gpiion 

No. 93-110 at 3. 

As you point out, rule 166~ of the Texas Rules of Civil Procedure, entitled 

“Stipulations Regarding Discovery Procedure,” appears to permit any person to take a 

deposition upon oral examination in certain circumstances. It provides as follows: 

Unless the court orders otherwise, the parties may by written 

agreement (1) provide that &positions mq be taken before any 

person, at any time or place, upon any notice, and in any manner and 

when so taken may be used like other depositions, and (2) modii the 

procedures provided by these rules for other methods of discovery. 

An agreement affecting a deposition upon oral examination is 

enforceable if the agreement is recorded in the deposition transcript. 

Fnphasis added.] 

To the extent that rule 166c permits parties to stipulate that a deposition upon oral 

examination be taken by a person other than a certified shorthand reporter, it conflicts 

with subsection (i) of section 52.021 of the Government Code. When a rule of civil 

procedure promulgated by the Texas Supreme Court conflicts with a statute, the rule must 

yield. Fou v. Charter Oak Fire Ins. Co., 463 S.W.Zd 424 (Tex. 1971); Purokztor 

Armored, Inc. v. Railroad Comm’n, 662 S.W.2d 700, 702-03 n.4 (Tex. App.-Austin 

1983, no writ); Drake v. Muse, Currie & Kohen, 532 S.W.Zd 369, 370 (Tex. Civ. 

App.-Dallas 1975, writ refd n.r.e.); CE. Duke’s Wrecker Serv., Inc. v. Oakley, 526 

S.W.2d 228 (Tex. Civ. App.-Houston [lst Dist.] 1975, writ refd n.r.e.). Thus, to the 

extent that rule 166~ permits parties to stipulate that a deposition upon oral examination 

be taken by a person other than a certified shorthand reporter, it must yield to the 

requirement of subsection (i) of section 52.021 of the Government Code that a deposition 

upon oral examination must be taken by a certified shorthand reporter. Of course, section 

52.03 1 of the Government Code, to which subsection (i) expressly refers, provides for the 

reporting of a deposition upon oral examination by a noncertified shorthand reporter under 

certain circumstances. 

Your letter includes a discussion of the legislative history of rule 166c, and states 

that “[i]t is not clear whether the intent of the commenters or the drafters of Rule 166~ 

was to permit parties to dispense with the statutory requirements regarding the use of a 

court reporter.” We note that rule 166~ was adopted in 1987 and effective 

January 1, 1988. Subsection (f) of section 52.021 of the Government Code, on the other 

hand, was not enacted until 1993. See H.B. 2073, Acts 1993, 73d Leg., ch. 1037, 5 2 (eff. 

p. 1647 
Honorable Merrill L. Hartman - Page 3 (~~-308) 

Sept. 1, 1993). Given that rule 166~ was adopted five years before subsection (0, we 

cannot infer any intent on the part of the drafters of rule 166~ to either dispense with or 

avoid a contlict with subsection (f). We also note that subsection (0; on its face, appears 

to have been intended to limit the authority of persons other than certi6ed shorthand 

repotters to take depositions upon oral examination, at least implicitly disapproving rule 

MC. See Gov’t Code (5 22.004(b) (supreme court rules remain in effect until disapproved 

by the kgislature). We are not aware of any legislative history to the contrary,2 and 

therefore must abide by the plain meaning of the statute. If this was not the purpose of 

section (0, it is for the legislature to amend subsection (f) to cla.ri@ that this was not its 

intent.’ 

zInfaqonthirdrradingthcHouscofRcprcgntativcsfailcdtoadaptanamendmenttoHousc 

Bill 2073 that would have substituted a new s§ion (f) providing as follows: 

Except aa provided by section 52.031 and by Section 20.001, Cii Practice 

and Rcmcdies code, or by agreemenf ofthe parries, all dcp&ions, except dapo- 

&ions on written questions, conducted in this state most be mcorded by a 

WrtiBed shorthand reporkr. 

HJ. ofTa, 73d Leg., at 2309 (1993) (emphasis added). 

‘Section 22.004(c) of the Govemment Code provides as follows: 

SothatthenrprrmccMlnhasfullrulemaLingpowcrincivilactiongarule 

adopted by the suprcmc court rcpds all conllicting laws and parts of laws 

govcming practice and procedure in civil actions, but substantive law is not 

repealed. At the time the supreme court files a rule, the comt shall file with the 

swrctary of state a list of each article or section of general law or each part of aa 

article or acction of general law that in the court’s judgment is repealed. The list 

has the same weight and effect as a decision of the court. 

You do not ask and we do not consider here whether subsection Q of section 52.021 of the Gwermnent 

Code is merely a proceduralaw which the supreme court could repeal by rule. 

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Honorable Merrill L. Hartman - Page 4 (~~-308) 

SUMMARY 

To the extent that rule 166~ of the Texas Rules of Civil 

Procedure permits parties to stipulate that a deposition upon oral 

examination be taken by a person other than a certikd shorthand 

reporter, it must yield to the requirement of subsection (f) of section 

52.021 of the Government Code that a deposition upon oral 

examination must be taken by a certified shorthand reporter. 

DANE MORALES 

Attorney General of Texas 

JORGE VEGA 

Pii Assistant Attorney General 

DREW T. DURHAM 

Deputy Attorney General for Criminal Justice 

JAVIER AGUILM 

Special Assistant Attorney General 

RENEAHICKS 

State Solicitor 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

p. 1649