THE ATI‘ORNEY GENEZRAL 

OF 7BYExAs 

The Honorable Burton S. Burks, Sr. 

Hood County Attorney 

P. 0. Box 306 

Granbury, Texas 76048 

Opinion No. H-,569 

Re: Whether the judge 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 the judge of 

a county court is required to appoint a court reporter in a criminal 

caeo, purruant to paragraph 4 of article 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 of all:txiaZ:$&%eedings, 

including voir dire, examination, objections to the 

court’s charge, and final arguments. 

In Jones v. State, 496 S. W. 2d 566 (Tex. Crim. App. 1973) the 

Court held, by a 3-2 majority, that, in order to accomplish reversal 

on the basis of the trial judge’s refusal to order the recording, of the 

voir dire examination, the appellant must show that he has been harmed 

or prejudiced thereby, 0~ that some action occurring during the voir 

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 

to be 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. 2549 
The 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 

on appeal. Taylor v. State, 489 S. W. 2d 890 (Tex. Crim. App. 1973). 

But as a matter of practice, “[t]rial judges should, even in the absence 

of a 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 in which the Court of Criminal Appeals has 

interpreted section 4 of article 40.09 have dealt with the trial 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 5 of article 40.09 provides that “[t]h e court reporter shall report 

x portion of the proceedings requested by either party or directed by 

the court,” we are of the opinion that these cases apply with equal force 

to “all trial proceedings. ” (Emphasis added). We note, however, that 

paragraph 1 of 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 of more 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 that in all cases appealable by,law to the Court of 

Criminal Appeals, a trial court is required by paragraph 4 of article 

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 

The judge of a 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