## THE ATI‘ORNEY GENEZRAL OF 7BYExAs

The Honorable Burton S. Burks, Sr. Hood CountyAttorney P. 0. Box 306 Granbury, Texas 76048 Opinion No. H-,569 Re: Whether thejudge of a county court is required to appoint a court reporter in a criminal ca6e. ” Dear Mr. Burke:

You have requested our opinion 

### regarding whether thejudge of a county court is required toappoint a court reporter in a criminal caeo, purruant to paragraph 4 ofarticle 40.09, Texas Code of Criminal Procedure. The relevant portion of the statute states:

At the request of either party the court reporter shall take shorthand notes ofall:txiaZ:$&%eedings, including voir dire, examination, objections to the court’s charge, andfinal arguments. InJones v. State, 496 S.W. 2d 566 (Tex. Crim. App. 1973)the 

### Court held, bya 3-2 majority, that, in order to accomplish reversal onthebasis of the trial judge’s refusal to order the recording, ofthe voir dire examination, the appellant must show thathe has been harmed or prejudiced thereby, 0~ that some action occurring during thevoir dire examination constitutes error. 5, at 569., Apparently, however, appellant need’merely allege that

### error has occurred. 5; at 569-70. 

### (Di8senting opinion). Judges Roberts and Odom would dispense with the test entirely, and hold the trial judge’6 refusal to require tranrcription tobe reversible error per se, SxAlvarado v. State, 508 S. W. 2d 74,

‘75 (fn.2) (Tex. Crim. App. 1974) and Jones v. State, supla at 569 and 574 (dissenting opinions).

p. 2549The Honorable Burton S. Burks, Sr., page 2 (H-569)

The Court of Criminal Appeals has made clear that an accused must make an affi,rmative request for a record in order to show error onappeal. Taylor v. State, 489 S.W. 2d 890 (Tex. Crim. App. 1973). But as a matter ofpractice, “[t]rial judges should, even in the absence ofa request to do so, have the court reporter record all the proceedings unless the same is waived. ” J&, at 892 (fn. 1). Most of the cases inwhich the Court of Criminal Appeals has interpreted section 4 of article 40.09 have dealt with thetrial court’s refusal to order the court reporter to record the voir dire examination. But see Curry v. State, 488 S.W. 2d 100 (Tex. Crim. App. 1972). Since -- the statute itself e.ncompasses “all trial proceedings, including
. . . objections to the court’s charge, and final arguments, “and since paragraph 5of article 40.09 provides that “[t]he court reporter shall report x portion of the proceedings requested by either party or directed by the court,” we are ofthe opinion that these cases apply with equal force to “all trial proceedings. ” (Emphasis added). We note, however, that paragraph 1of article 40.09 limits the statute’s application to “all cases appealable by law to the Court of Criminal Appeals.” Any county court conviction, where prosecution originated therein or which provides for the imposition of a fine ofmore than $100.00 in a case appealed from an inferior court,, is appealable to the Court of Criminal Appeals. Article 4.03, Texas Code of Criminal Procedure. It is our opinion thatin all cases appealable by,law tothe Court of Criminal Appeals, a trial court is required by paragraph 4 ofarticle 40.09 to appoint a court reporter to transcribe all trial proceedings, when requested to do so by either party to a criminal case. Failure to comply with the statutory directive may be assigned by the accused as reversible error. SUMMARY Thejudge ofa county court is required by article 49.09, Texas Code of Criminal Procedure, in all cases appealable by law to the Court of Criminal Appeal6. to appoint a court reporter to transcribe all trial proceedings &hen requested to

p. 2550. .

The Honorable Burton S. Burks, Sr. page 3 (H-569)

do so by either party to a criminal case. Very truly.yours,

APPROVED: 

### V

rst Assistant

Opinion Committee

p. 2551