. - R-837



## TEEATTORNEYGENERAL

PRICEDANIEL ATTORNEY GNERAL

Hon. GeorgeR. Sheppard Comptroller of PublicAccounts Austin, Texas opinion Ro.

## v-409

Dear Sir:
Your follows: October 17, 1947

Re: The ep liceblllt~ of h-t. k! 7 0,V.C.C.P., to payment of the court reporterbj the State In 8 habeas oorpus action, tried on a pauper’s oath

opinion request of September 30, 1947, is es

“ThLadepartmenthas reoeived a 

### clrlufrom an officialcourt reporter for fees **under** the proVlslons of Article 760, Section 6, V.C .C.r.,for servioes renderedby him in making 8 narr8tlve statement of facts on e pauper’s oath. The norretlve statement 

### of factswas orderedby the dintrict judge In a writ of habeas corpus rctlon, saidwrit was madereturnable to the Court of Crimin01 Appeals. The relator in thewrit w18 convicted of .sfelony 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 underArticle 119,V.C.C.P. 8 statement of fects in e habeas corpusproceeding upon the request of the DistrictJudge, entitled to be paid for same by the State under the terms ofArttiole 76~, Vi0.C.?+? To make clear our answer to your question,we quote below the pertinentportions of the statutes. They respectivelyprovide:

?*icle 760.
. Where the defendant in e crimlnai- .

Hon. George H. Sheppard - Page 2,V-409

case appeals,he is entitled to a statement of facts certifiedby the trial judge and sent upwith the record;provided that'said statement of facts shallbe in narrative form."2

. To accompanyTranscript.--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 approvedby the Judge, shall be filed in duplicatewith the Clerk, and the original sent up as a part of the record of the cause on appeal; and like procedure shallbe followed if the Statement ofFacts is prepared by the parties or by the Judge, on the failure of the parties to agree. 1,

. . . 

## “6.When defendant cannotpay--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 officialcourt reporter to make a narrative statement of facts and deliver it to such defendant. In all caseswhere 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 andwhere an appeal is prosecuted,, with a transcript of hFs notes. For each said service he shallbe paid by the State of Texas, upon the certificate of the trial judge, onehalf of the rate providedby law in civil cases." The above articlehas no bearing on this question. It S8y.T: 'Wherea defendant in a criminal case a Y%P he is entitled to a statement of facts, etc.". In re err ng to a statement of facts thatmay be incorporated in the transcriptas provided in Section 2 of said Article when agreed to by the parties and approvedby the judge,we find the following language:

"lnd the original cent up as a part of the record of the cause on appeal.". .

Hon. GeorgeH. Sheppard - Page 3,V-409

Thus we see that Art. 760 has reference only to a case appealed to the Court of CriminalAppeals by the defendsnt from a conviction in the trial court, and has no reference to habeas corpusproceedingswh&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 FmmaterlalFn 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 countywhere the offensehas been committed, on account of which the appllornt stands indicted. "After fin81 conviction in 82-qfelony 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 judgemay 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 shallbe transmitted to. the Court of Criminal Appe8lS with the return of the writ If same Is issued after suchhearing. Provided further, that should au&hwrit be returned to the Court of Criminal Apperls without the fects eccompenyingacme, orwithout all of the fscts deemed necessary bt the Court of Criminal Appeals, eaid courtmay *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 andHon. GeorgeR. Sheppard - Page 4,V-409

transmit the same to the Court of Criainal Appealswithin ten days of the date of such hearing. Ro compensation is fixedby law for the services thus performedby the court reporter;hence none can be p,ald by the State. Wedo not mean to hold that the court reporter mey not, In any event,be paid for a statement of faots in habeas corpusprodeedings if the Court of Criminal Appeals hearing the applicationmakes an order concerning the coats aa provided In Article 162. That Articleprovldesz

"Art. 

## 162.costs.--The judge trying the cause under habees corpusmay moko such order as is deemed right concerning the cost of bringing the defendantbefore 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, ormay award Qo costs et all." Under this Article, the costs may be adjudged against the person t.o whom thewrit WEISdirected, 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 cennotbe collected against the Stete unlessprovided for by law.

A court reporter la an officer of the court. In performing the functions and duties imposed uponhim 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 respectfullyadvised 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 corpusproceeding returnable to the Court of Criminal Appeals.

SU?dMARY

No provision is made by lav for the State to pay an officialcourt reporter for preparing a stetement of fects in a habeas oorpus proceeding under Article 119V.C.C.P. He is required to perform this service a8 anBon. Georga H. Sheppard - P8ga 5,V-409

added officialduty without’extra oompensstlon insofsrno the St&e is concerned.
Yours very truly
ATTORNEYGENERAL OF TEXA3 

# E 5V+-Ji. L Ilar Assistant LPL/lh A?PROVRD:

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