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R-837 

TEEATTORNEYGENERAL 

PRICE DANIEL ATTORNEY GNERAL 

Hon. George R. Sheppard 

Comptroller of Public Accounts 

Austin, Texas opinion Ro. v-409 

Dear Sir: 

Your 

follows : 

October 17, 1947 

Re: The ep liceblllt~ of 

h-t. 7 k! 0, V.C.C.P., 

to payment of the 

court reporter bj the 

State In 8 habeas oorpus action, tried on a 

pauper’s oath 

opinion request of September 30, 1947, is es 

“ThLa department has reoeived a clrlu from 

an official court reporter for fees under the proVlslons of Article 760, Section 6, V.C .C .r., for 

servioes rendered by him in making 8 narr8tlve 

statement of facts on e pauper’s oath. The norretlve statement of facts was ordered by the dintrict judge In a writ of habeas corpus rctlon, 

said writ was made returnable to the Court of Crimin01 Appeals. The relator in the writ w18 convicted of .s felony end given 8 penitentiary sentenoe. 

Are these fees properly payable under the provisions 

of Article 760, V.C.C.P.?'! 

The question presented le: Is the official 

court reporter, who prepares under Article 119, V.C.C.P. 8 

statement of fects in e habeas corpus proceeding upon the 

request of the District Judge, entitled to be paid for same 

by the State under the terms of Arttiole 76~, Vi0.C .?+? 

To make clear our answer to your question, we 

quote below the pertinent portions of the statutes. They 

respectively provide: 

?*icle . Where 760. the defendant in e crimlnai 
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Hon. George H. Sheppard - Page 2, V-409 

case appeals, he is entitled to a statement 

of facts certified by the trial judge and 

sent up with the record; provided that'said 

statement of facts shall be in narrative 

form. 

"2 . To accompany Transcript.--The 

Statement of Facts in felony or misdemeanor 

cases shall not be copied In The Transcript 

of the Clerk, but when agreed to by the 

parties and approved by the Judge, shall be 

filed in duplicate with the Clerk, and the 

original sent up as a part of the record of 

the cause on appeal; and like procedure 

shall be followed if the Statement of Facts 

is prepared by the parties or by the Judge, 

on the failure of the parties to agree. 

1, . . . 

“6. When defendant cannot pay--When 

any felony case is appealed and the defendant 

is not able to pay for a transcript of the 

testimony or give security therefor, he may 

make affidavit of such fact, and upon the making of such affidavit, the court shall order 

the official court reporter to make a narrative statement of facts and deliver it to such 

defendant. In all cases where the court Is 

required to and does appoint an attirney to 

represent the defendant in a criminal action, 

such reporter shall be required to furnish 

the attorney for said defendant, if convicted 

and where an appeal is prosecuted,, with a 

transcript of hFs notes. For each said service he shall be paid by the State of Texas, 

upon the certificate of the trial judge, onehalf of the rate provided by law in civil cases." 

The above article has no bearing on this question. 

It S8y.T: 'Where a defendant in a criminal case a 

is entitled to a statement of facts, etc.". In re Y%P err ng he 

to a statement of facts that may be incorporated in the 

transcript as provided in Section 2 of said Article when agreed to by the parties and approved by the judge, we find 

the following language: 

"lnd the original cent up as a part of 

the record of the cause on appeal." 
. . 

Hon. George H. Sheppard - Page 3, V-409 

Thus we see that Art. 760 has reference only to 

a case appealed to the Court of Criminal Appeals by the 

defendsnt from a conviction in the trial court, and has no 

reference to habeas corpus proceedings wh&ch does not invalve an appeal and is not 8 cause on appeal. Neither is 

the 8DDlicant in a habeas corDu8 DrOCeedinR a defendant. 

Therefore, we lay aside Art. 760 es Fmmaterlal Fn answering 

the question. 

We now 

reads: 

turn to Art. 119 which is material. It 

"After indictment found In any felony 

ame, and before conviction, the'wrlt aust 

be msde returnable Fn the county where the 

offense has been committed, on account of 

which the appllornt stands indicted. 

"After fin81 conviction in 82-q felony 

case the writ must be made returnable to the 

Caurt of Criminsl Appeals of Tex8s et Austin, 

Texas. The writ may issue upon the order of 

any district judge, end said judge may upon 

presentation to him of a petition for said 

writ, set the same down for a heering 8s to 

whether the writ should issue, 8nd ascertain 

the f8ct8, which facts shall be transmitted to. 

the Court of Criminal Appe8lS with the return 

of the writ If same Is issued after such hearing. Provided further, that should au&h writ 

be returned to the Court of Criminal Apperls 

without the fects eccompenying acme, or without all of the fscts deemed necessary bt the 

Court of Criminal Appeals, eaid court may *esignate and direct any district judge or judges 

of this state to ascertain the facts necessero 

By this language above underscored, it Is made 

mandatory upon the court reporter to prepare a narration 

of the facts adduced In evidence upon such hearing and 
Hon. George R. Sheppard - Page 4, V-409 

transmit the same to the Court of Criainal Appeals within 

ten days of the date of such hearing. Ro compensation is 

fixed by law for the services thus performed by the court 

reporter; hence none can be p,ald by the State. 

We do not mean to hold that the court reporter 

mey not, In any event, be paid for a statement of faots in 

habeas corpus prodeedings if the Court of Criminal Appeals 

hearing the application makes an order concerning the coats 

aa provided In Article 162. That Article provldesz 

"Art. 162. costs .--The judge trying the 

cause under habees corpus may moko such order 

as is deemed right concerning the cost of 

bringing the defendant before him, end all 

other costs of the proceeding, awarding the 

same either against the person to whom the writ 

was directed, the person seeking relief, or may 

award Qo costs et all." 

Under this Article, the costs may be adjudged against the person t.o whom the writ WEIS directed, or the 

person seeking relief, unless such person has filed 8 pauper's oath. But it is observed that this Article makes no 

provision for the awerding of costs against the State, and 

fees cennot be collected against the Stete unless provided 

for by law. 

A court reporter la an officer of the court. In 

performing the functions and duties imposed upon him by 

Article 119, he is merely performing 8n added duty for which 

no provision is mede for extra compensati.on by the State. 

You are therefore respectfully advised that the 

official court reporter is not entitled to any fees to be 

paid by the Stete in preparing a stetement of fects in 8 

habeas corpus proceeding returnable to the Court of Criminal 

Appeals. 

SU?dMARY 

No provision is made by lav for the 

State to pay an official court reporter for 

preparing a stetement of fects in a habeas 

oorpus proceeding under Article 119 V.C.C.P. 

He is required to perform this service a8 an 
Bon. Georga H. Sheppard - P8ga 5, V-409 

added official duty without’ extra oompensstlon insofsr no the St&e is concerned. 

Yours very truly 

ATTORNEY GENERAL OF TEXA3 

E 5 V+-Ji. L Ilar 

Assistant 

LPL/lh 

A?PROVRD : 

PIR 

ATT