## @ffice of the !Zhxnep Qkneral 

## State of,ZEexae DAN MORALES ATTORNEY GENERAL December 5, 1994
Honorable Merrill L. Hartman OpinionNo. 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 letteropinion, we expresslynotedthat we did not considerthe relationship behveen section SZ.OZl(fJ

and rule202 of the Texas Rulesof Civil Procedure. See Letter OpinionNo. 93-110 (1993)at3 n.2.

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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. 1647Honorable 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 2073thatwouldhavesubstituted anews§ion(f)providing asfollows: Exceptaaprovided

bysection 52.031andby Section20.001, Cii Practice and Rcmcdies code, or by agreemenf ofthe parries, all dcp&ions, except dapo- &ions on written questions,conductedin this state most be mcordedby a WrtiBed shorthand

reporkr. HJ. ofTa, 73dLeg.,at2309 (1993)(emphasis added).

‘Section 22.004(c) oftheGovemment Codeprovides

asfollows: SothatthenrprrmccMlnhasfullrulemaLingpowcrincivilactiongarule adoptedby the suprcmccourtrcpds all conllicting laws and parts of laws govcming practiceand procedure in civil actions,but substantivelaw is not repealed.Atthetimethesupreme court files a rule,thecomtshallfile with the swrctary ofstatea listofeacharticle orsectionofgeneral

laworeachpartofaa article oracction

ofgeneral

lawthatin thecourt’s

judgment

is repealed.The list hasthesameweightandeffectas adecisionofthecourt. You do notaskandwe do notconsider herewhethersubsection

Q of section52.021 ofthe Gwermnent Codeis merely

a procedural

awwhichthesupreme

court couldrepeal

byrule.

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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

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